Tamil SelvanS/o. Chinnaiya6. Kasi @ Kasi ViswanathanS/o. Venkatachalam7.Pattu RajanS/o. Natarajan8.SethuS/o. Vasudevan9.MuruganandamS/o. Arumughm v. The Inspector of Police

AccusedOffencesSentenceAccused – 7364 IPC109 r/w 304 (I) IPC201 IPC1. RI for 3 years &fine of Rs.10,000/- i/d 1year RI2. RI for 6 years &fine ofRs.15,000/- i/d 3years RI3. RI for 2 years &fine ofRs.5,000/- i/d 6months RI6. Crl.Appeal No.637 of 2004 has been filed by Accused No.1Rajagopal, and other accused persons and Crl.Appeal No.748 of 2004has been filed by the State against A1 to A3, A4 to A6 and A7 with thesole contention that the conviction should have been under Section 302IPC and not under Section 304 Part-I IPC.7. The trial court, on analysis of evidence, has come to thefollowing conclusions:-(i) The first accused had developed an evil intention to haveP.W.1 as his third wife and since he felt that existence of thedeceased was an impediment, he had instigated other accused, who werehis henchmen, to eliminate the deceased and, therefore, he had motiveto instigate other accused to eliminate the deceased;(ii) The accused persons and the deceased were last seen togetherand non-offering of satisfactory explanation from the accused as tohow the accused has parted with them, adverse inference has to bedrawn; (iii) The confessional statement made before P.W.37, as perExs.P-92 to P-95, are admissible and indicate that at the instigationof A1, the deceased was abducted and handed over to A2 to A4 and A6for exterminating the deceased; (iv) The information given by A2 has resulted in discovery of thefact that the dead-body was of Santhakumar, the said informationleading to discovery of the said fact is admissible under Section 27of the Evidence Act;(v) The information of A2 has led to recovery of Ambassador carsM.Os.1 and 2 and Tata Sumo M.O.3 and also Lungi M.O.15 found beneaththe seat of the Tata Sumo and such confessional statement andconsequent recovery lent assurance to the prosecution case;(vi) The confession of A6 has led to recovery of a gold dollarchain M.O.9, money purse with photo of Jeevajothi M.O.7, cash of https://hcservices.ecourts.gov.in/hcservices/ Rs.2400/- M.O.16 series and a shawl M.O.17;(vii) The medical evidence indicates that the death was due tothrottling. In other words, death was homicidal. The trial court further concluded that the credibility of theprosecution case has not been blemished on account of delay in lodgingthe FIR. The trial court further recorded a finding that the defectin investigation has not affected the prosecution case. Thesubmission on behalf of the accused that P.W.1 and her family membershad come forward with a false case in order to blackmail Accused No.1has not been accepted.8. Learned Senior Counsel appearing for Appellant No.1 and thelearned Senior Counsels appearing for other appellants have submittedas follows :-(i) Charges framed against all the accused persons are defectivein nature thereby vitiating the entire trial;(ii) The alleged motive to get rid of Santhakumar in order tomarry P.W.1 cannot be said to have been established;(iii) In view of the inordinate and unexplained delay in lodgingthe FIR, the entire prosecution case is liable to be thrown overboardand at any rate the evidence of P.W.1 is liable to be discarded;(iv) In view of the contradictions and omissions in the evidenceof P.W.1 and P.W.2 and the embellishments made from time to time, noimplicit reliance can be placed on such evidence;(v) Adverse inference should have been drawn against theprosecution for non-examination of many vital witnesses; (vi) Confessional Statements of Appellants 2 to 4 and 6 beforeP.W.37, the Tahsildar, cannot be relied upon for any purpose beinginadmissible as such confessions have been made by them while inpolice custody not in the presence of a Magistrate, but otherwise;(vii) Confession / statement of Accused No.2 relating to throwingof dead-body in Tiger-Chola in Kodaikanal is not admissible inasmuchas no dead body was discovered at that place pursuant to the so calledstatement;(viii) Confessional statement of A6 leading to alleged recoveryof gold chain with dollar, money purse containing cash and photo ofP.W.1, cannot be believed;(ix) Unidentified dead-body, which was found by the forestofficials at Tiger-chola, cannot be said to be that of Santhakumar;(x) The post-mortem report given by Dr. Sivakumar (P.W.35) is notacceptable;9. Learned Public Prosecutor appearing for the State, on theother hand, has refuted almost all the contentions of the Counsels forthe appellants. He has further submitted that in view of the findingsrendered by the trial court, there was no occasion to convict theaccused persons under Section 304 Part-I IPC and the conviction should https://hcservices.ecourts.gov.in/hcservices/ have been under Section 302 IPC. He has therefore submitted that theappeal filed by the accused persons should be dismissed and the appealfiled by the State Government should be allowed and the convictionunder Section 304-Part I should be altered to one under Section 302IPC.10. Before considering the other submissions made by the counselsfor accused / appellants in Crl.A.No.637 of 2004, one part of theadverse material relied upon by the trial court, namely, theconfession made by Appellants 2 to 4 and Appellant No.6 before P.W.37,the Tahsildar, can be safely discarded. It is not in dispute that theaccused persons who are stated to have made confession before theTahsildar P.W.37 were admittedly in police custody when they had"confessed" before the Tahsildar. Law is now well settled thatconfession by an accused person who is in police custody is notadmissible unless it is made in the immediate presence of aMagistrate. Law is equally well settled that the expression"Magistrate" would mean a Judicial Magistrate and not an officer inthe Executive or in other words not an Executive Magistrate.Therefore, apart from the fact whether the Tahsildar had given theaccused persons sufficient warning or not and whether such confessionswere voluntary or not, the confessions made to be taken to beinadmissible as they were not made in the presence of JudicialMagistrate. As a matter of fact, the Public Prosecutor has fairlysubmitted that Exs.P-92 to P-95 are to be eschewed from consideration.11. Learned counsels appearing for the appellants have submittedthat the charges framed against the accused/ appellants are defectiveand do not give a clear and precise picture of the allegations againstthe various accused persons.We have perused carefully the charges which have been framed andwe are of the considered opinion that framing of charges is a tadunsatisfactory in the sense the charges are very verbose and haverecounted many unnecessary factual details which need not have beenincorporated as part of the charges against the accused persons.Under Sec.464 Cr.P.C., no finding, sentence or order of a Court shallbe deemed to be invalid on the ground that no Charge was framed or onthe ground of any error or any irregularities in the Charge, unless inthe opinion of the Court of Appeal, a failure of justice has in factbeen occasioned thereby. The inartistic way of drafting the charges,however, has not at all prejudiced any of the accused persons. Acharge is expected to be precise and concise enough to convey thesubstance of the allegation against the accused person and the offencewhich is committed. In the present case, except the criticism thatthe charges have become very unwieldy in the sense that manyunnecessary details have been given, we cannot perceive that anyprejudice has at all been caused to the accused. Law is well settledthat a defect in the charge, unless it has the effect of prejudicingany of the accused person, does not vitiate the trial. (See W.Slaney https://hcservices.ecourts.gov.in/hcservices/ vs. State of M.P. - AIR 1956 SC 116). In several subsequentdecisions of the Supreme Court such as in (1999) 2 SCC 522 (KAMMARIBRAHMAIAH v. PUBLIC PROSECUTOR, HIGH COURT OF A.P.,), (2003) 1 SCC 217(K. PREMA S. RAO v. YADLA SRINIVASA RAO), (2004) 5 SCC 334 (DALBIRSINGH v. STATE OF U.P.), (2005) 5 SCC 194 (KAMALKANANTHA v. STATE OFTAMIL NADU), (2006) 1 SCC 463 (HARJIT SINGH v. STATE OF PUNJAB), and(2008) 1 SCC (Cri) 72 (ANIL alias RAJU NAMDEV PATIL v. ADMINISTRATIONOF DAMAN & DIU, DAMAN AND ANOTHER), similar principles have been laiddown. This contention, therefore, does not advance the case of theappellants.12. As we have already noticed, the trial court has placed strongreliance upon: (i) motive, (ii) subsequent abduction of the deceasedand (iii) factum of the deceased being last seen with the accusedpersons and (iv) statements of the accused persons leading todiscovery. The first three of the above aspects are sought to beproved by the prosecution primarily through the evidence of P.W.1 andP.W.2. It is therefore necessary to notice in brief the relevantmaterials proved through the mouth of P.W.1 and P.W.2. 13. From the evidence of P.W.1 as well as her mother P.W.2 it isapparent that their family shifted to Chennai after disposing of theirproperties in their native place. Uncle of P.W.1 was already workingin Hotel Saravana Bhavan. On his suggestion, an amount of Rs.4.50lakhs was deposited with the accused Rajagoopal (A1), who was givingabout Rs.6000/- or Rs.7000/- every month to the family of P.W.1. Afew months thereafter, father of P.W.1 joined Hotel Saravana Bhavan asAssistant Manager and the family was residing in a colony which hadbeen taken on lease by Hotel Sasravana Bhavan for its employees. 13.1 In order to teach Mathematics to the younger brother ofP.W.1., Santhakumar, the deceased, was contacted. This, however, wasnot to the liking of A1, who gave an ultimatum to the family of P.W.1that either Santhakumar should stop visiting the house or they shouldvacate the house. Because of such attitude, the family of P.W.1 hadto shift residence to MGR Nagar and, in course of time, the father ofP.W.1 had also resigned his job and gone to Malaysia seeking for a jobthere. Santhakumar, as usual, was visiting the house of P.W.1 and hermother and, in course of time, P.W.1 fell in love with Santhakumar.However, since Santhakumar was a Christian, mother of P.W.1 wasreluctant for the marriage between the two; but ultimately P.W.1married Santhakumar in the office of the Sub Registrar, Anna Nagar, on28.4.1999, without the knowledge of her family members. The couplehad gone to Madurai and P.W.1 had contacted her mother from there.P.W.2 brought both of them from Madurai to Chennai and arranged for amarriage between the two in a temple in Tiruvanmiyur. P.W.1 and herhusband started living in a house at Kottivakkam and her mother andbrother were staying in another house three streets away. Santhakumarwas working as a Career Agent in LIC. https://hcservices.ecourts.gov.in/hcservices/

13.2 A few months after the marriage, P.W.1 joined a travelagency named "S.S. Annamalai Travels" at Tiruvanmiyur and continuedlike that for three years. At that stage, P.W.1 and her husbandwanted to start their own travel agency and, being asked to help,P.W.2 obtained a loan from the Uncle of P.W.1 and a travel agencynamed as "Global Air Travels" was started at Velachery. However,P.W.1 and her husband were in need of more money and they again askedP.W.2 for help. Ultimately, on the persuasion of P.W.2, A1 agreed togive money but he advised the couple to visit "Mani Mandapam"constructed by him at Vellore so that they can visit that place, offerworship and he can handover cash at that place. Accordingly, P.W.1and her husband visited the said place and were given money indifferent instalments. In the process, Accused No.1 used to talk overphone with P.W.1 either at her office or at her residence every day.At times also he would be visiting the shop and talk with P.W.1 andher family members for long time. Since Accused No.1 had expressedhis displeasure to P.W.2 for even not being invited once to the houseof P.W.1, he was invited to the house of P.W.1 and her husband.Accused No.1 also bestowed costly gifts such as jewellery and dress onP.W.1 on her birthday. 13.3 On 16.9.2001, P.W.1 was admitted to Malar Hospital for sometreatment as an inpatient. On 20.9.2001, Accused No.1, his SpecialAssistant Sethu (A8) and two friends, namely, one Chandrasekar and aDoctor came to Malar Hospital and they gave advice that propertreatment was not being given in the hospital and P.W.1 should betreated by Dr. Lalitha, who was working in Vijaya Nursing Home atVadapalani. After they had gone and when Santhakumar came in thenight, P.W.1 expressed her anxiety over the presence of so manypersons but, however, her husband consoled her. In the meantime,Accused No.1 also gave a cellphone to P.W.1. According to P.W.1.,Accused No.1 told over the said cellphone "As I want to talk to youfirst of all through that cellphone I have sent it through Chelliahinstead of handing over the phone to your husband". 13.4 P.W.1 was subsequently discharged from the hospital and theamount was paid by Accused No.1. Thereafter she was shifted toNursing Home of Dr. Lalitha, where she was required to undergo certaintests. Subsequently, she was told that there was no defect in her andher husband was required to be tested. She was further told thatbefore undergoing the test, her husband should not indulge in sexualintercourse for four days and should undergo the test thereafter.After returning from Vijaya Nursing Home in the night at about 12.30A.M., P.W.1 got a phone call from Accused No.1, who told that she hadtelephoned to remind the advice given by Dr. Lalitha. A few daysthereafter, P.W.1 attended her office where she was told by AccusedNo.1 over telephone that after receiving the test report her husbandshould be sent to the Doctor. Santhakumar telephoned P.W.1 stating https://hcservices.ecourts.gov.in/hcservices/ that Dr. Raja had advised him to undergo HIV test and other testswhich he declined. Subsequently, when she was in the office, AccusedNo.1 told her that,". . . your husband has refused to undergo HIV test. I knowalready that he will refuse". She was also told that "Malayala Mantra medicine had been given to her withouther knowledge to put on more flesh and her husband hadapproached cinema directors so that she can act in films."13.5 On the same day mid-night 28.09.2001 at about 12.30 hours,Accused No.1 along with parents of P.W.1 came to the house of PW1 andstarted shouting at PW1's irresponsible attitude. PW1 gettingagitated over the first accused's shouting and causing disturbanceduring night hours, cautioned first accused that she would complainabout him to the police. First accused thrusting his cell-phone inthe hands of PW1 derisively asked her to contact any police and thathe would manage with money. First accused also told PW1 thatKiruthiga was also adamant in the beginning and later she got herselfsurveillance and after first accused married her as second wife, sheis leading a queen life. Looking at Santhakumar, first accusedfurther declared that he is doing everything only with an intention ofmaking PW1 as his third wife and gave him two days time to severe hisrelationship with PW1 and to leave her once for all.13.6 On 01.10.2001, 1st accused called Santhakumar questioning himas to whether any decision has been taken by him stating that twodays had lapsed in the meantime. 13.7 Being agitated, P.W.1 and her husband Santhakumar decided tomove away to some unknown place and went to Marina Beach tocontemplate their future course of action. PW1 and her husbandSanthakumar came to their house to take some money for meeting theexpenses, but noticed the presence of PW2, Ramasamy [father of PW1 andRamkumar] and A2 [Daniel], A3 [Karmegam], A4 [Hussain @ ZakirHussain], A5 [Tamil @ Tamilselvan], and A6 [Kasi @ Kasi Viswanathan],infront of their house. Stephan and Rajendran were also presentthere. PW1 and her family members were made to get in and travel inM.O.2 Ambassador car bearing registration No.TN-22-5202. While allother accused persons got into another Ambassador car M.O.1 bearingregistration No.TN-09-T 3224. They all reached the first floor ofChandrasekar's house at K.K.Nagar being used as Godown of SaravanaBhavan Hotels.13.8 First accused who came there, folding his dhoti andassaulted PW1's husband with his hands. On the direction of the firstaccused, other accused present there also beat PW1's husband. PW1pleaded with the first accused by holding his feet to leave herhusband. Santhakumar tried to lift PW1 with his hands. Angered over https://hcservices.ecourts.gov.in/hcservices/ the same, 1st accused asked Santhakumar not to touch her. By stating,1st accused commanded the other accused present there to take PW1'shusband from there and beat him. By sitting in the corner of theroom, PW1 was weeping. At that time, first accused told her thatthough he could do with her whatever he liked and that he would notstoop down and insisted PW1 to marry him as his third wife.Chandrasekar also persuaded PW1 to yield to first accused.13.9 On the next day, second accused-Daniel contacted PW1 throughphone and regretted for previous day's happenings and suggested toPW1 to lodge a complaint against the first accused before theCommissioner of Police. 13.10 PW1 and her husband Santhakumar were under surveillance byfirst accused's men. Under the pretext of going out to attend thefelicitation function arranged for the 1st accused, on 12.10.2001 PW1accompanied by her husband, went to the City Police Commissioner andlodged Ex.P3 complaint. 14. The incident dated 1.10.2001 is the subject matter of aseparate trial and separate appeals. What happened thereafter is thesubject matter of the present appeals and, therefore, it is feltappropriate to summarise the incident in a chronological manner bycollating the evidence of P.W.1 as well as P.W.2.15. After giving complaint on 12.10.2001, PW1 and the deceasedSanthakumar returned back to their house. They noticed from adistance that their house was surrounded by A2 and henchmen of 1staccused. On the advice of A2, PW1 and the deceased Santhakumar stayedin a lodge at Egmore. PW1 sought the help of A2. A2 conveyed to PW1that her father had lodged a complaint to the police about her absence"as missing". PW1 sought help of A2 in arranging for a press meet.But A2 informed her to send her husband alone to Sai Baba Temple nearVGP for the purpose of meeting reporter personally known to him.16. On 18.10.2001 in between 6.00 P.M. and 7.00 P.M., PW1 and herhusband went to the said place in a car. At that time, two Ambassadorcars bearing registration Nos. TN-09 T 3224 and TN-22 5202 and TataSumo bearing registration No.TN-0 Q 1310 came and halted behindtheir car. A3 and A4 armed with knife got down from the anterior carand sitting each side of their car's door. PW1 and her husband wereforcibly made to board into anterior car and the car went and stoppedat the main road in front of Air Port, Meenambakkam for about 10minutes. A5 who was also seated in the car passed on phone messagefrom there. The car then started and went and stopped at Chengalpattufor about 30 minutes and also Tata Sumo came and stopped in front ofthe said car. At about 8.30 P.M., a Benz car bearing registrationNo.TN-10 M 7755 belonging to the 1st accused came there. PW1'smother-PW2 got down from the Benz car and informed PW1 that 1st accused https://hcservices.ecourts.gov.in/hcservices/ is in the said Benz car and wanted PW1 to come leaving her husbandalone. When PW1 resisted, she was forcibly taken by A3 and A4 to theBenz car. PW1's father was also sitting in the said car. Then thecar proceeded to Trichy. On the way, A1 showing xerox copy of thereport given by PW1 tauntingly questioned her as to the complaint.PW1 begged for excuse and asked the 1st accused to allow her to joinher husband. First accused told her that she would meet her husbandat Trichy whereto they were also going.17. On 19.10.2001 PW1 was taken to PW9 Kuzhanthai Pandichi atParappadi village to remove the influence of witch craft (blackmagic). From there PW1 was taken to PW8 at Veppankulam village for thepurpose of seeking 'Kuri' (like Astrology) Janarthanam, an employee of1st accused came there and talked secretly with the 1st accused(Incidentally, P.W.8 and P.W.9 both turned hostile). The saidJanarthanam then informed PW1 that her husband had escaped and hiswhereabouts were not known. They also went and stayed at hotel Ariyasat Tirunelveli. On the same evening PW1, her parents, her brother,Janarthanam, A5 and A8 and the 1st accused all returned fromTirunelveli to Chennai by train.18. On 21.10.2001 Santhakumar talked to PW1 through phone andstated that A2 had informed him that A2 was given Rs.5 lakhs by A1 tofinish him off and that A2 taking pity and sympathy has let himunharmed and had asked him to go to Bombay and contact him from thereafter 15 days. Santhakumar advised PW1 to escape someway or other andjoin him. PW1 told him that there was tight security and requestedSanthakumar to come to the house, so that both of them could pleadwith A1 to pardon them. Heeding the said proposal, Santhakumar alsocame to PW2's house. PW1 informed the same to 1st accused. Firstaccused came there along with A5 and A8 and PW1 and her husbandSanthakumar pleaded for mercy and assured A1 to withdraw the policecomplaint. 19. On the same evening as per the direction of A1, PW1, herhusband, her parents and her brother all were taken to VadapalaniOffice building by A5 and A6. PW1, her husband, her parents and herbrother were kept in a room. A1 then summoned A2 and questioned himabout Santhakumar. A2 narrated that he had thrown Santhakumar afterremoving his pant and shirt and also after tying his hands and legswith ropes on the railway track and that Santhakumar's face gotdisfigured and shattered being run over by the train and that he hadalso burnt the shirt and pant with the use of petrol. Thereupon, A1called Santhakumar from the adjacent room. A1 then pointing atSanthakuamar, asked A2 whether he was younger brother or elder brotheror ghost of Santhakumar. A2 thus being disgraced, assaultedSanthakumar for his betrayal. A3 and A4 joined A2 in beatingSanthakumar. PW1 and her father went for the rescue of Santhakumar.PW1 was pushed down while her father was also beaten up by them. https://hcservices.ecourts.gov.in/hcservices/

20. Chandrasekar and Rajendran @ Yaanai Rajendran, an Advocatewere present there. As per the dictation of the said Rajendran, PW1wrote and signed a paper purporting to withdraw the police complaintin Cr.No.1030/2001. Signatures of PW1, her husband, her parents andher brother were also obtained in blank papers. On 24.10.2001, PW1and her husband were taken to Dy. Commissioner of Police, Guindy andthen to Metropolitan Magistrate Court, Chennai for withdrawal ofpolice complaint.21. On 24.10.2001 A4 and A6 took PW1, her husband, her parentsand her brother in the Tata Sumo car bearing registration No.TN-10 L7755 belonging to A1. They were all taken to Parappadi village andVeppankulam village again for removal of witchcraft. On the next day,PW1, her husband and her parents were taken to Tiruchendur temple andthey all stayed at the Cottage belonging to the said temple trust andon the same night, they reached Tirunelveli and stayed at HotelAriyas.22. On 26.10.2001 at about 6.30 A.M., A5 came to the first floorwhere PW1 and her family members stayed. A5 informed that A1 hasasked to bring Santhakumar. Unwilling to send him alone, PW1 alsowent along with him to ground floor. A1 standing by the side of TataSumo car bearing registration No. TN-10 L 7755 asked both PW1 and herhusband to get into it and A1 told them that he wanted to talk animportant matter with them. A9 was driving it and A5 was in the frontseat and A8 was in the rear seat. Tata Sumo bearing registration No.TN-09 Q 1310 followed the said car. After 10 – 12 minutes journey,the Tata Sumo bearing registration No. TN-10 L 7755 stopped near KaraiIruppu culvert, indicating the direction of Tarapuram on Madurai-Dindigul main road. On the signal shown by A5, the other Tata Sumobearing registration No. TN-09 Q 1310 following closely also stopped.A2, A4 and A6 got down from the said car and came near Tata Sumobearing registration No. TN-10 L 7755. First accused getting downfrom the other car pulled Santhakumar by holding his shirt and pushedhim down from the said car. Handing him over, 1st accused asked A2 toA4 and A6 "finish him off". The Tata Sumo bearing registration No.TN-09 Q 1310 with Santhakumar, A2 to A4 and A6 being driven by A7proceeded straight in the direction of Dindigul.23. First accused came back in the same Tata Sumo bearingregistration No. TN-10 L 7755 to Hotel Ariyas along with PW1 and herparents driven by A9. First accused told the family members of PW1 tohave discussion about all things after reaching Chennai. Whilereturning to Chennai, PW1, her parents, her brother and A5 travelledin the Tata Sumo bearing registration No. TN-10 L 7755 while firstaccused travelled in the Benz car bearing registration No. TN-10 M7755. Thereafter, PW1 was staying at her mother's house at Ayothiyakuppam, Velachery brooding over her husband. PW1 has stated that A5, https://hcservices.ecourts.gov.in/hcservices/ A8, Stephen, Prakash, Subramaniyan and some others – henchmen of A1kept vigil over the movements of PW1 and her family members. At theinstance of A1, PW1 and her family members were taken by one Perumalto an Astrologer by name Ravi (PW4). A few days later at the instanceof A1, one Raghunatha Iyer at K.K.Nagar conducted certain rituals inthe presence of Kiruthiga, 2nd wife of A1. 24. From the narration of the above events, which are apparentfrom the evidence of P.W.1, read in conjunction with the evidence ofP.W.2., the prosecution has proved that Accused No.1 either because hewas advised by an Astrologer that his business and prosperity wouldincrease if he takes P.W.1 as his third wife or may be he was besottedwith P.W.1, wanted to take P.W.1 as his third wife notwithstandingthat P.W.1 had already married Santhakumar. Originally Accused No.1tried to create some rift between P.W.1 and her husband by creatingimpression as if the husband of P.W.1 was suffering from some dreadfuldisease like HIV and that he was trying to take some financialadvantage by making his wife to work as a film star. It was also madeknown to P.W.1 that he had gone out of his way to help P.W.1 becausehe wanted to make her as his third wife and the husband of P.W.1 wasinitially told to leave P.W.1 and thereafter given threatening to thateffect. This part of the story, which culminated in the incidentdated 1.10.2001, has also been found to be proved in the otherconnected appeals, even though there has been some alteration in thepunishment. 25. Since the husband of P.W.1 did not pay heed to the warningand threat given, Accused No.1 apparently entrusted the work ofgetting rid of the deceased to Accused No.2 and few others. However,Accused No.2, instead of exterminating the deceased, allowed him toescape but gave the impression to Accused No.1 as if the deceased wasexterminated by placing him on a railway track. The deceased,however, instead of running away and leaving P.W.1., contacted P.W.1and told her about such action. After discussion of the matter overtelephone, the deceased rejoined P.W.1 and both of them decided toseek for mercy from Accused No.1 and, therefore, met him and AccusedNo.1 belittled Accused No.2 for having given a false picture as if thedeceased had been exterminated. Thereafter, P.W.1 and her husbandwere taken to places like Tiruchendhur, Tirunelveli and ultimately onthe morning of 26.10.2001, the deceased was forced to go with accusedpersons and P.W.1 and her parents had to return to Chennai along withAccused No.1. 26. The above evidence, if believed, clearly establishes thatthere was a strong motive for Accused No.1 to get rid of the deceasedin order to make it possible to take P.W.1 as his third wife and P.W.1and her husband had been forcibly taken from place to place andthereafter the deceased was forced to go with other accused personsand P.W.1 and her family members had to come back to Chennai. In https://hcservices.ecourts.gov.in/hcservices/ other words, such evidence, if accepted, not only proves the motivebut also the fact that the deceased was last seen together with someof the accused persons who took away the deceased in a Tata Sumobelonging to Accused No.2 as per the direction of Accused No.1.27. Learned counsels who have appeared for the appellants havesubmitted that such evidence adduced by the prosecution should bediscarded for the following reasons :-(1) Delay in lodging the FIR in respect of the incident dated1.10.2001 as well as the subsequent incident dated 26.10.2001.(2) There are contradictions, embellishments and omissions in theevidence of P.W.1 and P.W.2. These aspects are, therefore, required to be considered carefullyat this stage.28. So far as the incident dated 1.10.2001 is concerned, it hadbeen explained by P.W.1 that she had been kept under surveillance and,therefore, she could not immediately lodge the FIR. It is contendedon behalf of the accused that P.W.1 had two mobile phones with her andshe knew the phone number of high ranking police officers and she wasalso attending the office and, therefore, she had enough opportunityto lodge the complaint regarding the incident dated 1.10.2001. 29. It is no doubt true that it may prima facie appear that therehas been some delay in lodging the FIR relating to the incident dated1.10.2001. We should not, however, lose sight of the glaring factthat in the complaint relating to the incident dated 1.10.2001, shehad made certain allegations relating to the conduct of her parents,more particularly her mother P.W.2 and that the parents of P.W.1 werequite well known to Accused No.1 and in fact the father of P.W.1 hadworked under Accused No.1 and had also benefitted from the helpfulattitude of Accused No.1 in monetary matters. Under suchcircumstances, a girl aged about 21 years would be naturally hesitantto file complaint making allegations not only against the benefactorof her parents but also against her own parents. One can only saythat she must have been in a position like Prince Hamlet "to be or notto be". Not only Accused No.1 was a very rich and influential personbut also the alleged role of the parents of P.W.1 was obviouslylurking in the mind of P.W.1. Under such circumstances, we do notthink there was any unnecessary and undue delay in lodging the firstFIR Ex.P-3. 30. The question which has been strenuously raised in the presentappeals is also relating to the delay in lodging the second FIR inrespect of the incident dated 26.10.2001 and what had happened beforethat. In this connection, it is also vehemently contended by thecounsels appearing for the appellant that P.W.1 had enough opportunityto complain regarding such later incident dated 26.10.2001. It has https://hcservices.ecourts.gov.in/hcservices/ been further submitted that as a matter of fact, as per the statementof the police, she had been examined by the police in connection withthe earlier case on 9.11.2001 and 16.11.2001 in connection with CrimeNo.1030/2001 and, therefore, she could have complained about theincident dated 26.10.2001. Even though such a contention may appearto be prima facie attractive, on overall view of the matter, we areunable to persuade ourselves to discard the FIR relating to theincident dated 26.10.2001 as a mere fabrication or aimed atblackmailing Accused No.1 as has been suggested in course of trial orin course of hearing of the present appeals.31. It is no doubt true that P.W.1 had been examined by police on9.11.2001 and 16.11.2001, whereas the FIR relating to the incidentdated 26.10.2001 was formally lodged only on 20.11.2001. However, inthis connection, we cannot overlkook the fact that even though an FIRhad been lodged relating to the incident dated 1.10.2001 on12.10.2001, such FIR was formally registered later, only on 9.11.2001.This prima facie gives the impression that the police was in no hurryto start any proceeding. Apart from the above, even Accused No.1himself had imperiously shown a xerox copy of the complaint dated12.10.2001 and had taunted that nothing could be done against him.Moreover, the husband of P.W.1 had been allowed to escape on aprevious occasion and, therefore, it would be most reasonable on thepart of P.W.1 to believe that instead of rushing to the police whichmight further precipitate the matter and antagonize Accused No.1, whowas obviously very rich and powerful person, it may be more prudent towait hopefully so that the husband of P.W.1 may be allowed to escapeor return. As a matter of fact, the evidence of P.W.2 discloses:-". . . Though my daughter told me that, we could give acomplaint to the police, regarding the disappearance of herhusband, it was only me who told her that, some how he wouldcomeback to us and that, since we had given such acomplaint, many problems had arisen and that, in the eventof giving any such complaint, they would kill her husband,who was alive and thus I prevented her."31.1 In addition to the above, it is obvious that P.W.1 herselfwas a little doubtful regarding the role played by her parents in theearlier incident dated 1.10.2001. Therefore, such reluctance to rushto the police must have been compounded further. It is also apparentfrom the evidence that on 21.10.2001, in the office of Accused No.1,P.W.1 and her husband were forced to sign in the papers in thepresence of one Advocate Rajendran @ Yaanai Rajendran for withdrawalof the complaint dated 12.10.2001 and, on 24.10.2001, P.W.1 and herhusband were taken to the Deputy Commissioner and MetropolitanMagistrate, Chennai, to get the signatures for withdrawal of theearlier complaint. Obviously on account of such developments, a girlaged about 21 would be skeptical regarding the fate of a complaintmade before the police, particularly when such complaint relates torich and unscrupulous persons. https://hcservices.ecourts.gov.in/hcservices/

32. In (1974) 4 SCC 201 = AIR 1974 SC 606 (RAM JAG v. STATE OFUTTAR PRADESH), the Supreme Court observed :-“16. . . . It is true that witnesses cannot be calledupon to explain every hour’s delay and a commonsense viewhas to be taken in ascertaining whether the firstinformation report was lodged after an undue delay so as toafford enough scope for manipulating evidence. Whether thedelay is so long as to throw a cloud of suspicion on theseeds of the prosecution case must depend upon a variety offactors which would vary from case to case. Even a longdelay in filing report of an occurrence can be condoned ifthe witnesses on whose evidence the prosecution relies haveno motive for implicating the accused. On the other hand,prompt filing of the report is not an unmistakable guaranteeof the truthfulness of the version of the prosecution. . . .”(Emphasis added)33. In 1991 Supp (1) SCC 536 = AIR 1991 SC 63 (TARA SINGH v.STATE OF PUNJAB), the Supreme Court has observed as follows :-“4. It is well settled that the delay in giving the FIRby itself cannot be a ground to doubt the prosecution case.Knowing the Indian conditions as they are we cannot expectthese villagers to rush to the police station immediatelyafter the occurrence. . . . . Of course the Supreme Court aswell as the High Courts have pointed out that in casesarising out of acute factions there is a tendency toimplicate persons belonging to the opposite faction falsely.In order to avert the danger of convicting such innocentpersons the courts are cautioned to scrutinise the evidenceof such interested witnesses with greater care and cautionand separate grain from the chaff after subjecting theevidence to a closer scrutiny and in doing so the contentsof the FIR also will have to be scrutinised carefully.However, unless there are indications of fabrication, thecourt cannot reject the prosecution version as given in theFIR and later substantiated by the evidence merely on theground of delay. These are all matters for appreciation andmuch depends on the facts and circumstances of eachcase. . .“(Emphasis added)34. In (2000) 5 SCC 30 = AIR 2000 SC 1812 (STATE OF RAJASTHAN v.N.K. the accused), it was observed :-“15. We may however state that a mere delay in lodgingthe FIR cannot be a ground by itself for throwing the entireprosecution case overboard. The court has to seek anexplanation for delay and test the truthfulness andplausibility of the reason assigned. If the delay is https://hcservices.ecourts.gov.in/hcservices/ explained to the satisfaction of the court it cannot becounted against the prosecution. . . .”35. We would also like to refer to the observations made by theSupreme Court in (2003) 2 SCC 518 : 2003 SCC (Cri) 641 [AMAR SINGH v.BALWINDER SINGH], wherein it was held as follows :-". . . there is no hard-and-fast rule that any delay inlodging the FIR would automatically render theprosecution case doubtful. . . . it necessarily dependsupon facts and circumstances of each case whether therehas been any such delay in lodging the FIR which maycast doubt about the veracity of the prosecutioncase . . . ."36. Ordinarily if there is unexplained delay in lodging the FIR,the court, while appreciating the evidence, should be on guard to findout whether there is any scope for false accusation with somecollateral motive. The court should be also on guard to scrutinisethe prosecution evidence a little more closely so that the possibilityof any innocent person being falsely implicated is ruled out. Theevidence requires a stricter scrutiny. Under these circumstances, weare unable to discard the entire prosecution story solely on accountof the understandable delay in lodging the FIR because of thecircumstances which we have narrated.37. It is not as if P.W.1 can, even remotely, be considered as anaccomplice so that her evidence is required to be corroborated onmaterial particulars through an independent source. Similarly, thoughsome fingers have been pointed out at P.W.2 in the F.I.R. Ex.P-3 byher own daughter P.W.1., it cannot be said that corroborationfurnished through the evidence of P.W.2 was from a tainted source.38. In the present case, the evidence of P.W.1 has not onlyreceived sufficient corroboration on material particulars from theevidence of P.W.2 but also from some other circumstances. The versionof P.W.1 that she and others were taken to different places likeTiruchendhur and Tirunelveli has received some general corroborationfrom the fact that contemporaneous records maintained in the hotels orguest houses in those places indicate the presence of the accusedpersons on those dates.39. That some of the accused stayed in Tirunelveli andTiruchendur on 25.10.2001 is evident from the entries in the Registersseized from different Hotels and Lodges. P.W.20 Varadarajan wasemployed in the Reception of Hotel Ariyas, Tirunelveli. P.W.20 hasadmitted seizure of Ex.P25 Lodge Booking Register. Ex.P37 entry (inEx.P25) would show that entry was made in the name of A8 [Sethu] forSuite No.200. The entry reads as follows:- https://hcservices.ecourts.gov.in/hcservices/ V.K.SethuNo.25, 10th Avenue,Ashok Nagar, Chennai-83.Though P.W.20 had turned hostile, he has admitted seizure of Registerof Hotel Ariyas. In Ex.P88 report, P.W.36 Handwriting Expert hadopined that the handwriting and signature in Ex.P37 entry must havebeen written by A8 (Sethu).40. P.W.21 [Paramasivam] and P.W.22 [Kali] have been employed inTVK Lodge, Tiruchendur. Evidence of P.Ws.21 and 22 is to the effectof seizure of Ex.P29 Booking Register from TVK Lodge. Handwritingfound in the Booking Register of TVK Lodge, Tiruchendur are correlatedto the specimen handwriting of Hussain [A4]. P.W.36 HandwritingExpert compared the sample handwritings of Hussain [S46 to 51 and 58to 60] with the disputed handwriting and signature found in the entry[Ex.P81] and opined that the questioned signature is that of theperson [A4] who had given the sample handwritings in Ex.P86. Theentry in Ex.P81 reads as under:-Room No.22R.Subramani.....MGR Nagar,Chennai.41. Ex.P18 is the Lodge Booking Register of Hotel Bluse Star,Tirunelveli. On 25.10.2001, Ex.P82 entry has been made, which readsas under :-K. NATARAJ22, Rangabashyam Street,Saidapet,ChennaiSd/- K. NatarajP.W.36 Handwriting Expert had assigned Q15 & Q16 to Ex.P82, the abovequestioned writings. The sample handwriting and signatures collectedfrom Hussain [A4] has been marked as S46 to S50 and S58 to S60.P.W.37 Handwriting Expert had opined that the person who had writtensample handwriting and signature, which are marked as S46 to S50 andS58 toS60, had also written those handwriting and signature, which aremarked as Q15 and Q16.42. Ex.P19 is the Lodge Booking Register of Tiruchendur MuruganTemple Devasthanam. Handwriting and signatures found in Exs.P19 andP27 Booking Register of Tiruchendur Murugan Temple Devasthanam arecorrelated to the specimen signature of Tamizhselvan [A5] found inEx.P85 [sample signatures S24 to 45]. P.W.36 Handwriting Expertopined that the person who had written the sample signatures in Ex.P85must have been written the entries [Ex.P20] in Ex.P19. Entries in the https://hcservices.ecourts.gov.in/hcservices/ Lodge Booking Registers coupled with the evidence of HandwritingExpert would establish presence of A4 [Hussain]; A5 [Tamizhselvan] andA8 [Sethu] in Tirunelveli and Tiruchendur thereby strengthening theevidence of P.Ws.1 and 2.43.P.W.1 has stated that on 26.10.2001 Shanthakumar was takenin Tata Sumo car bearing registration No. TN-09 Q 1310 fromKaraiyiruppu culvert and Tata Sumo car bearing registration No. TN-09Q 1310 proceeded towards Kodaikanal. Evidence of P.W.1 that TataSumo car bearing registration No. TN-09 Q 1310 proceeded towardsKodaikanal is substantiated by the fact that Tata Sumo car bearingregistration No. TN-09 Q 1310 was found nearby Kodaikanal.44. These entries in the different registers indicate about thestay of some of the accused persons at Tirunelveli and Tiruchendhur onthe dates indicated by P.W.1 and P.W.2. As a matter of fact, even oneof the accused, namely, Accused No.4, apparently stayed in T.V.K.Lodge, Tiruchendhur, under an assumed name. These materials, whichare admissible in evidence, have considerable relevance as observed bythe Supreme Court in 2001 SCC (Cri) 235 (MANISH DIXIT AND OTHERS v.STATE OF RAJASTHAN).45. Bill book [Ex.P32] containing bill No.51 385 was seized bythe Investigating Officer. Bill No. 51 385 in Ex.P32 reflects thatTata Sumo car bearing registration No. TN-09 Q 1310 filled up fuel atPalani on 26.10.2001. P.W.25 Manikandan who worked in the Perol bunkwho was to speak about filling up fuel in petrol bunk was turnedhostile. However, P.W.25 admitted the bill book having seized fromthe petrol bunk. But P.W.25 had stated that his owner has not takenon lease the petrol bunk in Kodaikanal. Though P.W.25 was declaredhostile, it does not completely efface his evidence. The testimony ofsuch a witness has to be assessed to the effect of seizure of billbook which contains entry relating to Tata Sumo car bearingregistration No. TN-09 Q 1310 filling up fuel at Palani on26.10.2001. Judicial notice can be taken of the fact that Palani isnot long distance away from Kodaikanal. Court is not precluded fromtaking into account the Bill book Ex.P32 and evidence of P.W.25 thatInvestigating Officer had seized the bill book from the petrol bunk.In our considered view that Tata Sumo car bearing registration No.TN-09 Q 1310 filling up fuel on 26.10.2001 at Palani as reflected inEx.P32 – Bill book is a relevant fact which strengthens the evidenceof P.W.1.46. Learned counsels appearing for the appellants have submittedthat the evidence of P.W.1 and P.W.2 should be discarded on account ofseveral contradictions and embellishments. The contradictions whichhave been highlighted before us are all relating to minor detailswhich do not at all affect the substratum of the prosecution case.When evidence is taken after a long lapse of time and that too in https://hcservices.ecourts.gov.in/hcservices/ course of two separate trials, some minor contradictions and someminor embellishments here and there would be natural and that cannotbe a ground to discard the entire prosecution case.47. By and large, a witness cannot be expected to possess aphotographic memory to recall the details of the incident and theactual words uttered. It is not as if a video tape is replayed on themental screen. Power of observation and retention differ. By andlarge, people cannot recall the words heard by them in theconversation. They can only recall the main purport of conversation.It is unrealistic to expect the witness to be a human tape recorder tore-produce the same words at all times.48. In (1981) 2 SCC 752 = AIR 1981 SC 1390 (STATE OF RAJASTHAN v.SMT. KALKI), the Supreme Court has observed as follows :-“8. . . . In the depositions of witnesses there arealways normal discrepancies however honest and truthful theymay be. These discrepancies are due to normal errors ofobservation, normal errors of memory due to lapse of time,due to mental disposition such as shock and horror at thetime of the occurrence, and the like. Material discrepanciesare those which are not normal, and not expected of a normalperson. . . .”49. All discrepancies in the testimony of a witness which do notcreate infirmity in the prosecution case are not necessarily fatal inevery case. In AIR 1985 SC 48 [STATE OF U.P. v. M.K. ANTHONY] theSupreme Court has held as follows:-"10. While appreciating the evidence of a witness,the approach must be whether the evidence of the witnessread as a whole appears to have a ring of truth. Oncethat impression is formed,, it is undoubtedly necessaryfor the Court to scrutinise the evidence moreparticularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as awhole and evaluate them to find out whether it isagainst the general tenor of the evidence given by thewitness and whether the earlier evaluation of theevidence is shaken as to render it unworthy of belief.Minor discrepancies on trivial matters not touching thecore of the case, hyper-technical approach by takingsentences torn out of context here or there from theevidence, attaching importance to some technical errorcommitted by the investigating officer not going to theroot of the matter would not ordinarily permit rejectionof the evidence as a whole. If the Court before whomthe witness gives evidence had the opportunity to formthe opinion about the general tenor of evidence given by https://hcservices.ecourts.gov.in/hcservices/ the witness, the appellate Court which had not thisbenefit will have to attach due weight to theappreciation of evidence by the trial Court and unlessthere are reasons weighty and formidable it would not beproper to reject the evidence on the ground of minorvariations or infirmities in the matter of trivaldetails. Even honest and truthful witnesses may differin some details unrelated to the main incident becausepower of observation, retention and reproduction differwith individuals. Cross examination is an unequal duelbetween a rustic and refined lawyer. . . .”50. In 1988 (Supp) SCC 241 (APPABHAI AND ANOTHER v. STATE OFGUJARAT), the Supreme Court observed :-“13. . . .The court while appreciating the evidencemust not attach undue importance to minor discrepancies. Thediscrepancies which do not shake the basic version of theprosecution case may be discarded. The discrepancies whichare due to normal errors of perception or observation shouldnot be given importance. The errors due to lapse of memorymay be given due allowance. The court by calling into aidits vast experience of men and matters in different casesmust evaluate the entire material on record by excluding theexaggerated version given by any witness. When a doubtarises in respect of certain facts alleged by such witness,the proper course is to ignore that fact only unless it goesinto the root of the matter so as to demolish the entireprosecution story. The witnesses nowadays go on addingembellishments to their version perhaps for the fear oftheir testimony being rejected by the court. The courts,however, should not disbelieve the evidence of suchwitnesses altogether if they are otherwise trustworthy. . ”51. In (1999) 8 SCC 649 (RAMMI v. STATE OF MADHYA PRADESH), theSupreme Court observed :-“24. When an eyewitness is examined at length it isquite possible for him to make some discrepancies. No truewitness can possibly escape from making some discrepantdetails. Perhaps an untrue witness who is well tutored cansuccessfully make his testimony totally non-discrepant. Butcourts should bear in mind that it is only whendiscrepancies in the evidence of a witness are soincompatible with the credibility of his version that thecourt is justified in jettisoning his evidence. But tooserious a view to be adopted on mere variations falling inthe narration of an incident (either as between the evidence https://hcservices.ecourts.gov.in/hcservices/ of two witnesses or as between two statements of the samewitness) is an unrealistic approach for judicial scrutiny.”52. In the instant case, the trial Judge has tested the evidenceof PW1 on the touchstone of consistency with tenor of the case.Learned Addl. Sessions Judge who had an opportunity of observing thedemeanour of PW1 and PW2 rightly held that the discrepancies andcontradictions would not affect their credit worthiness andconsistency. Evidence of PW1 is not be disbelieved on the trivialinconsistency pointed out by the learned counsel for the appellant.It is also to be noted that despite of grilling cross examination, PW1gave consistent version of the occurrence on various dates which wouldensure that she is a truthful witness. The little variations here andthere reflect a person's natural tendency to be incoherent and may bea little inconsistent because of the surcharged environs in a courtroom. It is only a thoroughly tutored witness who can speak andrepeat the same words in the same sequential “consistency” andmonotony and not a natural witness. Thus we find no discerniblereason to discard the prosecution evidence.53. Some arguments have been advanced by contending that theevidence of P.W.1 and P.W.2 do not clearly establish that Accused No.1had asked the other accused persons to kill Santhakumar. It is ofcourse true that there is no categorical consistent evidence that atthe time when the deceased was forced to go in the vehicle in thecompany of other accused persons Accused No.1 had given clearinstruction to other accused persons to finish Santhakumar as thewords used by him are susceptible of being understood and interpretedin different manner. This, however, in our considered opinion, is notof much significance in view of the previous conduct of Accused No.1when he had apparently instructed Accused No.2 to exterminate thedeceased. In this context, we have already referred to the fact thaton 21.10.2001, the deceased Santhakumar had contacted P.W.1 overtelephone and had conveyed that Accused No.2 had been given Rs.5 lakhsby Accused No.1 to exterminate Santhakumar and Accused No.2 takingpity and sympathy had left him and asked him to go away and AccusedNo.1 had berated Accused No.2 as the latter had allowed Santhakumar toescape on earlier occasion.54. Statement of the deceased over phone with regard to one ofthe circumstances of the transaction which resulted in his death isrelevant under Sec.32 of Indian Evidence Act. In 1984 SC 1622 : 1984Cri LJ 1738 (SHARAD v. STATE OF MAHARASHTRA), one of the propositionslaid down by the Supreme Court there is this:"Section 32 is an exception to the rule of hearsayand makes admissible the statement of a person who dies,whether the death is homicide or a suicide, provided the https://hcservices.ecourts.gov.in/hcservices/ statement relates to the cause of death, or exhibitscircumstances leading to the death. In this respect, asindicated above, the Indian Evidence Act, in view of thepeculiar conditions of our society and the diversenature and character of our people, has thought itnecessary to widen the sphere of S.32 to avoidinjustice."55. In (1987) 1 Ker LT 928 : 1988 Cri LJ 107 Justice K.T.Thomas.J (as his Lordship then was) observed that the Supreme Court inAIR 1984 SC 1622 : 1984 Crl LJ 1738 (cited above) adopted theinterpretation that the expression "any of the circumstances of thetransaction which resulted in his death" is wider in scope than theexpression " the cause of his death". In the light of the saiddecision of the Supreme Court, motive factor available in thestatement of the deceased cannot be discarded as a remotecircumstance, if it is otherwise intimately connected with thecircumstances of the transaction which resulted in his death. 56. On behalf of the accused, it was contended that statement ofthe accused cannot be admitted under Sec.32 of Indian Evidence Actunless it relates to the actual transaction which resulted in deathand not to previous events which are not part of the same transaction.57. Section 32 (1) of the Evidence Act renders a statementrelevant which was made by a person who is dead in cases in whichcause of his death comes into question. But its admissibility dependsupon one of the two conditions: Either such statement should relateto the cause of his death or it should relate to any of thecircumstances of transaction which resulted in his death. Thecollocation of the words in section 32(1) "circumstances of thetransaction which resulted in his death" is apparently of wideramplitude than saying "circumstances which caused his death". Thereneed not necessarily be a direct nexus between "circumstances" and"death". It is enough if the words spoken by the deceased havereference to any circumstance which has connection with any of thetransactions which ended up in the death of the deceased. Suchstatement would also fall within the purview of section 32 (1) of theEvidence Act. In other words, it is not necessary that suchcircumstance should be proximate, for, even, distance circumstance canalso become admissible under the sub-section, provided it has nexuswith the transaction which resulted in death. [Vide Rattan Singh v.State of Himachal Pradesh, AIR 1997 SC 768 : 1997 Cri LJ 833]58. No doubt, it is true that phrase "circumstances oftransaction" cannot be accorded a wide construction because it wouldlead to hearsay being too readily admitted. The circumstances musthave some proximate relation to the actual occurrence. The naturalmeaning of the words "circumstances of the transaction" does not https://hcservices.ecourts.gov.in/hcservices/ convey limitation that the statement must be made after thetransaction has taken place or that the person making it must be atany rate near death. As held by the Supreme Court in A 1996 SC2766 : 1996 Cri LJ 4002 [State of UP v. Ramesh Prasad Misra] Section32(1) is wide enough to include statement of the accused regardingmotive behind the criminal act in question. 59. Statement of the deceased that A2 was given Rs.5 lakhs by A1to 'finish him off' and that A2 taking pity and sympathy has left himunharmed is the statement made by the deceased as to "circumstances ofthe transaction" which resulted in death. The evidence of PW1 as tothe statement of the deceased is relevant u/s.32 (1) of IndianEvidence Act which is a strong piece of evidence militating againstthe accused.60. The statement of Santhakumar conveyed to P.W.1 over telephoneto the effect that Accused No.1 had instructed Accused No.2 and othersto exterminate Santhakumar has received more than ample corroborationfrom the conduct of A1, who had sarcastically berated A2 in front ofothers including P.W.1 and her husband when he discovered that thelatter was still alive.61. A question may arise that if A2 had been instructed by A1 toexterminate Santhakumar, then why was he let off? It is very difficult to fathom the inner thoughts or feeling ofany person. It may be that Accused No.2 had some soft corner forP.W.1 and/ or her husband or it may be that Accused No.2 might havethought that with severe threat given Santhakumar may go away to anyoutside place thus paving the way for marriage of Accused No.1 withP.W.1 and it would be more prudent for Accused No.2 to spareSanthakumar instead of taking the risk of becoming a perpetrator of aheinous crime. It is to be noticed that in the cross-examination ofP.W.1, no serious question had been raised on this aspect of theevidence. The contention to discard such part of the statement ofP.W.1 is therefore not acceptable.62. It was also submitted that it was unnatural on the part ofthe deceased and P.W.1 to reappear before A1. The evidence of P.W.1discloses that the deceased wanted P.W.1 to run away so that bothcould go to some other place. However, P.W.1 persuaded the deceasedto return so that both could seek for forgiveness from A1. It isobvious that the overwhelming love for each other persuaded them totake the risk. 63. Counsels appearing for the Appellants submitted thatprosecution had not examined many of the relevant witnesses andtherefore, adverse inference could be drawn and the evidence of P.Ws.1and 2 should not be accepted. In particular, they have submitted thatfather of P.W.1 and uncle of P.W.1 were allegedly present and https://hcservices.ecourts.gov.in/hcservices/ therefore, they should have been examined. Those two persons wouldhave replicated what was already stated by P.Ws.1 and 2. There wouldnot be anything new in their statements. Law is well settled thatproof in criminal case does not depend upon the quantity of evidence,but depends upon the quality of evidence adduced. In such view of thematter, in our considered view non-examination of father and uncle ofP.W.1 was immaterial.64. It was also submitted that Chandrasekaran and Advocate YannaiRajendran should have been examined by the prosecution. From theevidence of P.W.1, it is apparent that Chandrasekaran and AdvocateYanai Rajendran were camp followers of A1 and they were trying toespouse the cause of A1 and protect him. In fact, the statementindicates that P.W.1 and her husband were made to sign certainstatement which had been prepared by Advocate Yannai Rajendran. Undersuch circumstances, we fail to understand as to why it was required ofthe prosecution to examine such persons. If at all any statement ofsuch persons would have been helpful the accused, the accused personscould have examined them.65. Submission was also made that Asst. Commissioner of Police,Ramachandran should have been examined. Evidence of Ramachandran,Asst. Commissioner of Police would have been of no particularconsequence. Moreover, there is no suggestion that any of thesewitnesses have been deliberately withheld by the prosecution.Therefore, we do not accept submission made by the counsels for theAppellants.66. It was contended that investigation was not properly doneand that statement of important witnesses recorded under Sec.161Cr.P.C. reached the Court along with Charge sheet and documents. Itwas further submitted that there were other lapses in the conduct ofInvestigation.67. If potholes were to be ferreted out from every "minor"loophole in the process of investigation, no prosecution, possibly,can be found to be free from some or other defect. The basic and theparamount question is whether any lapses in the investigation hasresulted in miscarriage of justice by prejudicing the accused personsto any significant extent. 68. It is fairly well settled that any omission on the part ofthe Investigating Officer cannot go against the Prosecution in a caseof this nature. Interest of Justice demands that every 'act' or'omission' of the Investigation Officer need not be taken in favour ofthe Accused, for that would amount to giving premium for the lapses ofthe Investigation. Story of Prosecution is to be examined dehors suchomissions unless such omissions have the tendency to prejudice theaccused. https://hcservices.ecourts.gov.in/hcservices/

69. Learned counsels appearing for the appellants have alsoargued that P.W.1 was obviously aware of the death of her husband assome religious rites had been performed in the presence of a priestwhich are only performed when a woman becomes widow. It is doubtfulif P.W.1., who was hardly aged about 22 to 23, was aware of theimplications of such rites. It is of course true that P.W.2 hasstated that she suspected that some ceremonies had been performedindicating about the death of Santhakumar, but she has categoricallystated she did not tell her daughter at that time that ceremonies wereperformed to indicate that her daughter had become widow. On the other hand, the presence of the Accused No.1 along withhis second wife, who was an active participant in such ceremony, asstated by P.W.1., can be used as a circumstance against Accused No.1as it gives an indication that on the said date, when such ceremonywas performed, at least Accused No.1 had received information aboutthe death of Santhakumar. 70. The next circumstance relied upon by the prosecution is thatthe death of Santhakumar was homicidal in nature. The trial court byreferring to the evidence of the Doctor, who conducted the post-mortemand referring to the post-mortem report, had opined that death washomicidal in nature.71. Learned counsels appearing for the appellants have submittedthat there are several reasons as to why the prosecution case that thedeath of Santhakumar was homicidal should be discarded. It iscontended by them that there is no acceptable evidence to come to theconclusion that dead-body of the unknown person which was accidentallydiscovered by the forest officials on 31.10.2001 was in fact that ofSanthakumar. In this connection, it is further contended that, at anyrate the evidence relating to cause of death is thoroughlyunsatisfactory in view of the various loopholes in the post-mortemreport. Before, however, coming to the question of cause of death, itwould be more appropriate to concentrate on the identity of the bodywhich was found on 31.10.2001.72. From the evidence of P.W.27 and P.W.28 along with Ex.P-44,which is the FIR in Cr.No.559/2001, it is apparent that the dead-bodyof an unknown male person was discovered by the forest officials.Soon after stumbling upon the dead body, FIR Ex.P-44 was lodged andthe police official came there for investigation. It is stated thatphotographs were immediately taken. Subsequently, P.W.1 and P.W.2were called to Kodaikanal to identify M.Os.11 to 14, which were takenby the police after discovery of the unknown dead-body as that of thedeceased Santhakumar. P.W.1 had also identified M.O.5 Shirt, M.O.6Pant, M.O.8 Black belt as the wearing apparel of her husbandSanthakumar. The authenticity and genuineness of the photographs werechallenged by raising the following contentions :- https://hcservices.ecourts.gov.in/hcservices/ (a) There is a black linear patch in M.O.14 photograph. Theother photographs M.Os.11 and 12 also contains similar small linearpatches.(b) No Investigation Officer seized the photographs. PW42 hasstated that PW32 had handed over the photographs by coming toVelachery P.S. on 15.2.2001.(c) According to the Investigation Officer PW42, M.Os.11 to 14were misplaced in the station and he was not able to produce the samefor quite sometime and the photographs were produced during the trial.73. PW29 S.I. of Police has stated that he gave the film roll toone Joe of Apollo Studio, Kodaikanal for developing and printing thenegatives of M.Os.11 to 14. As per the evidence of PW39 [Moideen],there was no Joe working in Apollo Studio. 74. During investigation, the statement of P.W.39 was notrecorded by the Police. There was no explanation given by theprosecution for the non-examination of PW39 during investigation northere is explanation as to how he was traced and examined in Court asPW39. Therefore, stand of the Appellants is that photographs are re-taken and M.Os.11 to 14 was a re-take and there seems to bemanipulation of photographs in Kodaikanal.75. To substantiate the contention that M.Os.11 to 14 are re-takeand that there are manipulations in the photographs, much reliance isplaced upon the evidence of DW1 Chandrasekar who is a retired Directorof Forensic Science Lab, Chennai. In his evidence, DW1 has statedthat he has got vast experience in Forensic Science Department and hehas opined that M.Os.11 to 14 are re-taken photographs. Much weightcannot be attached to the evidence of DW1 as the photography involvesexpertise and technique.76. PW39 Moideen developed the negative and the photographs ofthe body found in 'Tiger-Chola' are M.Os.11 to 14. Explaining blacklinear patches, PW39 Moideen has stated in his evidence that M.O.19film is of 35mm. He has further stated that when this type of filmroll is kept in the machine to take out the print, if the corners ofthe film do not fix properly or if it has not been fixed properly,then the unexposed portion would be printed in black colour. Whiletaking photo prints using the machine, if the film had been keptproperly, then the black border in the print would not have occurred.PW39 has stated that as he did not properly fix the film edges in themachine and took the prints, black borders are seen in the corners.This part of evidence of P.W.39 has not been shaken in any manner incross-examination.77. In his evidence PW29 S.I. of Police has stated that oneFarooh and one Mahendran are the other two persons working along withhim in Apollo Colour Lab. In his deposition, PW29 has stated that one https://hcservices.ecourts.gov.in/hcservices/ Joe of Apollo Studio developed the photos. PW39 Moideen who isworking in Apollo Studio has, however, stated that no person by nameJoe worked in Apollo Colour Lab. Laying emphasis upon thecontradiction, much arguments were advanced as to who has developedthe photos. Due to passage of time, PW29 S.I. of Police might nothave exactly remembered the name of the person who developed thephotos. Any such omission or any contradiction would not affect thegenuineness of the photographs.78. Learned counsels for the appellants have submitted thatP.W.29, who was investigating into the matter relating to discovery ofthe unknown dead-body at Kodaikanal was not available as he had goneto Delhi for attending training and his signatures have been forged inmany documents such as Mahazar, requisition, etc. According to thelearned counsels the above conduct clearly indicates the extent towhich the police had stooped in order to nail the blame on the accusedpersons.79.The witness in his statement has categorically stated that thesignatures are his signatures. Counsels for the appellants haveinvited us to compare the signatures and other admitted signatures ofVictor Immanuel to come to a contrary conclusion. It is no doubt truethat under Section 73 of the Evidence Act, the Court is empowered tocompare any disputed signature. But, as is well known, such a poweris to be exercised very cautiously as there is always inherent dangerof basing a conclusion on the basis of mere comparison, excludingother relevant materials on record. When P.W.29 himself hadadmitted his signature in the Observation Mahazar and Plan, we do notthink, it is necessary for us to delve into this aspect. Under thesecircumstances, we do not consider it appropriate to compare thesignatures ourselves for coming to a different conclusion. 80. In the trial court, with the permission of the Court,negatives were printed by the Defence. Photographs printed from theroll were marked as Defence M.Os.3,4 and 5. Stand of the appellantsis that one such photo [Defence M.O.3] is re-take of a photo whichaccording to the prosecution came to their hands only on 19.12.2001.On behalf of the Appellants, it was mainly argued that because of themodern developments in the photography simulation is possible andhence it would be unsafe to rely on these photographs for identifyingthe deceased.81. Through DW1, accused tried to bring home the point thatM.Os.11 to 14 are re-taken from the photographs which were alreadytaken in some other environment. In our considered view the meresuggestion that photographs are the re-take photographs will not be ofany help to the Defence. Learned counsels for the appellants have notbeen able to point out as to (i) where from photographs were taken;(ii) why should there be retaking of such photographs. No plausible https://hcservices.ecourts.gov.in/hcservices/ submission has been made on this score, save and except by contendingthat the photographs produced by the prosecution were "retaken".82. It is to be noted in this context that the Senior Counselfor the Appellants 2 to 9 have submitted that such "retake"photographs was not primary evidence and, therefore, not admissible.However, no such objection regarding admissibility in respect ofsecondary evidence was taken in the trial court and such photographshave been marked without objection. Therefore, it is too late in theday for raising a contention that such photographs could not have beenmarked as Material Objects. Similarly learned Senior Counsel forAccused No.1 had simply submitted that photographs were re-takenphotographs without raising any specific contention as to how, even ifthose photographs were retaken, had affected the prosecution case orhad caused prejudice to the accused.83. Photographs are mainly to bring home the scene of occurrenceor where the body was found. Though there are black linear border inM.O.14 photo and small such black linear in other photos, keeping inview the explanation of PW39 Moideen, in our considered view, M.Os.11to 14 photographs do not suffer from any distortions as suggested bythe accused.84. Photographs of scene of occurrence or where the body wasfound are extremely useful to analyse the evidence and to ascertainthe truth. Proper photographs of the scene bring home thescene/place in the Court room. Still photographs are better than theverbal or written descriptions. When the body found in 'Tiger-Chola'was unidentified, the photograph was the best evidence. Rightly, PW29S.I. of Police had used the camera and had taken photographs whichwere later developed by PW39 Moideen.85. In the initial stage of investigation photos were shown toPW1 and PW2. It is seen from other photos [M.Os.75 to 77] that onseeing M.Os.11 to 14 photos, PW1 and PW2 have been grieving. InColumn 7 of Ex.P47 – Inquest Report, lying of the body has beennarrated as noted below:-"The dead body was seen ..... in the place called'Tiger-Chola' in a pit about 20 ft. to the left sideof the road, with the head downwards and face facingupwards horizontally, with the hands at the sides andthe legs apart, face and eyes eaten by maggots,wearing blue and white checked coloured full sleevedshirt and a light brown coloured pant."The descriptions of lying of the body more or less correlated to thedead body as seen from the photographs M.Os.11 to 14. In ourconsidered view, genuineness of M.Os.11 to 14 cannot be doubted on theground of delay in producing them before the Court. https://hcservices.ecourts.gov.in/hcservices/

86. P.W.1 and P.W.2 also identified the wearing apparels whichthe deceased was found wearing when it was discovered by the forestofficials. The Shirt, Full Pant and the Belt were identified by P.W.1and P.W.2 and marked as M.O.5, M.O.6 and M.O.8.87. Contentions have been raised that in the FIR, dated20.11.2001, relating to the alleged abduction of Santhakumar on26.10.2001, P.W.1 had never stated about the colour of the pant,colour of the shirt and the belt worn by the deceased and similarlyshe had not stated about any scar mark on the belly and, therefore,the identification made by P.W.1 cannot be accepted. Learned counselsfor the appellants have raised serious doubt relating toidentification of M.O.5 - Shirt, M.O.6 - Pant and M.O.8 - Black-belt,which were found when the dead-body was discovered. 88. On 20.11.2001, when the FIR relating to the incident dated26.10.2001 was made, P.W.1 was not known as to whether her husband wasdead or alive. As a matter of fact, her evidence discloses that shewas still hopeful like the previous occasion her husband might comeback. Under such circumstances, particularly when P.W.1 was not awareabout any foul play resulting in death of the deceased, non-mention ofthe colour of the pant, shirt and belt worn by the deceased was hardlyof any consequence.89. In her evidence, PW1 has stated that on 02.12.2001 she hadgone to Kodaikanal police station where she has identified M.O.5 bluecoloured checked shirt, M.O.6 pant and M.O.8 black coloured belt.Identification of M.O.5 Shirt, M.O.6 Pant and M.O.8 Black colouredBelt by P.W.1 strengthens that the body recovered from 'Tiger Chola'in connection with Cr.No.559/2001 of Kodaikanal Police Station is thatof Santhakumar. 90. As pointed out earlier, M.O.5 is the blue coloured whitechecked full sleeved shirt and M.O.6 is the sandal coloured pant. InCol.7 of Ex.P47 Inquest Report, M.O.5 shirt has been described as aBlue colour white checked full sleeves shirt with a bran-browncoloured pant (g[Sf; fyh; bts;isf; fl;lk; nghl;l KGf;if rl;ila[ld;jtpl;Lf;fyh; ngz;Lk; cs;sJ). Originally it was written as woodcolour (ku fyh;) and the same was later struck off and written as Bluecolour (g[S fyh;). In Ex.P45 observation mahazar, M.O.5 and M.O.6 havebeen described as the body was found clad in brown and white checkedpolyster shirt and bran-brown coloured pant. On the inside of theshirt collar, a label "Power Shirt" and in the hip side of the pant,a label "Lablock"were stitched (clypd; kPJ gput[d; fyh; kw;Wk; bts;isepw fl;lk; nghl;l ghyp!;lh; rl;ila[k;. jtpl;L fyh; ngz;Lk; mzpe;Jfhzg;gLfpwJ/ rl;ilapd; fhyhpd; cl;gf;fk; @gth; c&h;l;@ vd;Dk; nygpYk;. https://hcservices.ecourts.gov.in/hcservices/ ngz;od; ,Lg;g[ gFjpfspy; @nyg;fhf;@ vd;Dk; nygpYk; ijf;fg;gl;Ls;ssJ). 91. Drawing Court's attention to the discrepancies in Exs.P45 andP47, it was contended that there is great variation in the descriptionof M.O.5 shirt which would vitally affect the prosecution case. Wehave carefully examined Exs.P45 and P47 and also M.Os.11 to 14photographs. In our considered view, nothing significance could bedrawn against the prosecution case. The reason being, Ex.P45observation mahazar and Ex.P47 Inquest Report were prepared on31.10.2001 at 19.00 hours. That means Exs.P45 and P47 were preparedduring night time at 7'O clock. When the light being focussed on thebody, quite possibly that the blue colour with white checks was seento be 'brown colour shirt' and so described. The alleged discrepancyin the description of M.O.5 [shirt] does not in any way affect theinvestigation aspect and recovery of M.O.5 shirt in Cr.No.559/2001 ofKodaikanal P.S. In fact even a bare look of the photographs M.Os.11,12 and 14 indicates that checked shirt was of brownish and bluishtinge. M.O.11, M.O.12 as well as M.O.74, they clearly show that thecolour of the Shirt is 'Blue, White and Brown colour'. Therefore,slight discrepancy in describing the colour of the shirt ultimatelydoes not affect the prosecution case.92. As we have pointed out earlier, in Ex.P48 – Form-95, the dateof despatch of M.Os.5, 6 and 8 was described as 04.11.2001. From theevidence of PW1, it emerges that she has identified M.Os.5, 6 and 8 on02.12.2001. On behalf of the accused, it was mainly argued that whenM.Os.5, 6 and 8 were said to have been despatched on 04.11.2001 andwhile so, it would not have been possible for PW1 to have identifiedM.Os.5, 6 and 8 on 02.12.2001 and the identification of M.Os.5, 6 and8 by PW1 is doubtful on this score also.93. In the light of the above submissions, we have carefullyexamined Exs.P23 and P48. We found that M.Os.5, 6 and 8 were producedbefore the Tahsildar on 04.12.2001. It was produced before theMetropolitan Magistrate on 15.12.2001 and they were asked to beproduced later. From Exs.P23 and from the deposition of PW18, CourtInterpreter, it is seen that on 27.12.2001, M.Os.5, 6 and 8 werereceived by the Metropolitan Magistrate Court. While so, there is noforce in contending that M.Os.5, 6 and 8 were not available on02.12.2001 for being identified by PW1.94. Drawing Court's attention to the evidence of PW42 –Investigating Officer, it was contended that there was no record toshow the receipt of M.Os.5, 6 and 8 either on 04.12.2001 or on anyother day. It was therefore, contended that it would be highly unsafeto rely upon the evidence let in by the prosecution in respect of thearticles M.Os.5, 6 and 8. No doubt, there is no separate documentshowing the transfer of M.Os.5, 6 and 8 from Kodaikanal P.S. to https://hcservices.ecourts.gov.in/hcservices/ Velachery P.S. When the entire case pertaining to Cr.No.559/2001 wastransferred to Velachery P.S. quite naturally Ex.P48 Form-95 must havebeen handed over to Velachery P.S.. As we have pointed out earlier,M.Os.5, 6 and 8 were produced before the Tahsildar, Kodaikanal on04.12.2001. When the entire case records in Cr.No.559/2001 wastransferred to Velachery P.S., no separate document was required forre-seizure of M.Os.5, 6 and 8 by Velachery P.S. Identification ofM.O.5 [Shirt], M.O.6 [Pant] and M.O.8 [Belt] as that of the deceasedSanthakumar by PW1 is a vital piece of evidence regarding theidentification of the dead body.95. P.W.1 has also purported to identify the dead-body itselfafter it was exhumed. Learned Counsels for the appellants have raisedseveral contentions relating to unidentified dead-body, which wasfirst discovered in Tiger-Chola and subsequently buried in Hinduburial ground at Kodaikanal. They had contended that the subsequentexhumed dead-body is of some other person. The evidence on thisaspect should be carefully analysed.Contention of the Appellants is that identification of the bodywas not established beyond reasonable doubt. Stand of the Appellantsis that the exhumed body was in advanced stage of decomposition andtherefore, identification was not possible after exhumation.96. After post-mortem PW35 Dr.Sivakumar had entrusted the body topost-mortem Constable PW32 [HC Sebashtiyan] for burial. PW32 HeadConstable along with PW33 [Anithalai – burial ground guard] andScavengers Sailathunathan and John have buried the body in HinduBurial Ground. On the direction of Tahsildar, the body was exhumedon 01.12.2001 and PW32, PW33 and the said Scavengers Sailathunathanand John have shown the place to Tahsildar where the dead body wasburied.97. Stand of the Appellants is that body buried on 02.11.2001was not proved to be one exhumed subsequently. According to theAppellants, the link evidence of PW32 and PW33 for identification ofthe body is not sufficient to prove that the body exhumed was the oneburied on 02.11.2001. In support of their contention, the accusedinteralia made the following submissions:-(a) PW32 and PW33 and one Sailathunathan have not putany identification marks to fix the place of burial andPW32 (Head Constable Sebastiyan) has not prepared anysketch or mahazar regarding the place of burial.(b) At the time of burial, there is no evidence toshow that the body was found with any under garmentsand buried with blanket plastic sheet.98. In his evidence PW32 has stated that they purchased a whitecloth and the dead body was wrapped in that cloth and then it wasburied. PW32 was confronted as to whether he has prepared any mahazar https://hcservices.ecourts.gov.in/hcservices/ so as to identify the place at a later point of time. On behalf ofthe accused, it was contended that PW32 had not stated in his Section161 (3) Cr.P.C. statement as to how the body was wrapped in a whitecloth or a plastic sheet.99. As is well known, every omission in previous statementsbefore the police under Section 161 Cr.P.C. may not amount tocontradiction. The fact that such witnesses had omitted to stateanything specifically before the police that they had put some marksof identification is not a serious omission affecting the credibilityof their statements in Court. Moreover, it is not every day that aperson in-charge of the burial ground is called upon to bury personsdying unnatural death and, therefore, it would not have been difficultfor them to remember where they had buried the dead body. We have nodoubt that the dead body which was found by the Forest Officials wasthe same dead-body which was exhumed.100. The learned counsels for the appellants have also submittedthat the dead body which was exhumed was wearing an underwear; whereasthe evidence of persons who buried the dead body, which was found bythe Forest Officials, had stated that after postmortem there was nocloth covering the dead body except a sheet. The above contradiction,in our considered opinion, is too minor to jettison the sworntestimony of the witnesses who have categorically stated that the deadbody which was handed over after post-mortem was buried by them andwas subsequently exhumed.101. In his evidence, PW35 Dr.Sivakumar has stated that the placewhere the body was exhumed, one wooden stick was erected and one smallstone was placed. In his evidence, PW32 has stated that he asked PW33to place some identification. PW33 has also stated that foridentification, he has erected one wooden stick and placed one smallstone. In their statements before the police under Section 161 (3)Cr.P.C., PW32 and PW33 have not spoken about the specificidentification marks of place of burial i.e. erection of wooden stickand placing of stone. On behalf of the accused, much arguments wereadvanced on this aspect and contended that the prosecution has beenimproving its version. Earlier, the body was buried on 02.11.2001.Within the interval of one month, the body was exhumed on 01.12.2001.Therefore, the place where an unidentified body was buried must havebeen fresh in the mind of PW32 and PW33. Such minor omission in theirstatement before the police regarding erection of stick or placing ofsmall stone would not affect the evidentiary value of PW32 and PW33 asto the burial of the body. In our considered view, non-mention ofthose trivial aspects would not affect the evidentiary value of PW32and PW33 nor the core aspect of burial of the body. https://hcservices.ecourts.gov.in/hcservices/

102. PW38 Dr. Meiyazhagan, District Police Surgeon and Professorof Forensic Medicine, Madurai Medical College who conducted re-postmortem after exhumation has stated that both the hands of the deadbody were seen severed at wrist. PW38 has stated that, whileconducting post mortem on the dead bodies of unidentified persons, itis the usual practice for the Surgeon to cut the hands from the wristat the instance of Investigating Officer, for the purpose ofascertaining identity of the person and for registration of fingerprints.103. PW35 Dr. Sivakumar who had earlier conducted post-mortem hasnot stated anything about the amputation of the hands from the wrist.Much arguments was advanced on this aspect that while PW35 has notstated anything about the amputation of both hands from the wrist.Non-mention of amputation of both hands from the body of the deceasedis of no significance. As pointed out earlier, PW38 Dr. Meiyazhaganhas categorically stated that it is the usual practice for theSurgeons to cut the hands from the wrist at the instance of theInvestigating Officer while conducting the post-mortem on the bodiesof unidentified persons. Being the usual practice, perhaps PW35 Dr.Sivakumar might not have indicated the same in Ex.P75 post-mortemcertificate. It is significant to note that no specific question wasput to him on that aspect.104. Finger print of unidentified person should be taken becausetheir finger prints may lead to their identification. Problem ofcollection of prints from the dead body varies under differentconditions. As per the usual practice hands were required to beamputated from the wrist. Being the usual practice, perhaps PW35 Dr.Sivakumar has omitted to mention about cutting the hands/fingers fromthe wrist.105. In our considered view that does not affect the connectivityof the exhumed body from the body buried on 02.11.2001. There is noforce in the contention that the exhumed body was not proved to be thedead-body discovered on 31.10.2001 and buried on 02.11.2001 afterpost-mortem by PW35 Dr. Sivakumar. The material with which the bodywas wrapped and the place of burial are only secondary. Any omissionor contradiction on these secondary aspects would not affect the coreof the prosecution case in respect of identification. 106. In the above connection it may also be pointed out thatP.W.1 identified the dead-body after it was exhumed by referring tothe mark available on the abdomen portion. P.W.19, who is the brotherof the deceased, has stated in his chief-examination that he wasunable to identify the said body as that of his brother and he wasdeclared hostile and cross-examined by the prosecution. P.W.19 hasresiled from his earlier statement. However, P.W.19 has clearly https://hcservices.ecourts.gov.in/hcservices/ admitted that his brother had an operation. Therefore, the statementof P.W.1 regarding identification of the dead-body by finding a scarmark on the abdomen appears to be trustworthy. Moreover, P.W.19witness has stated that the photographs M.Os.11, 12 and 14 appear tobe that of his brother Santhakumar.107. The identity of the dead-body, which was found on31.10.2001, was sought to be proved through Super Imposition Test,which was done by P.W.34, who was working as Assistant Director in theAnthropology Division, Forensic Science Department. Admittedly he hasobtained Doctorate in Anthropology and working for 12 years. He hadundergone several training courses and had written two research workson the subject which were published in International Science Journals.He had undertaken research in more than 600 skulls and had submittedreports. 108. PW34-Dr. Jeyaprakash, the then Assistant Director ofAnthropology Division, Forensic Sciences Department has conductedSuper Imposition Test on the basis of three methods; viz., (i) VideoSuper Imposition; (ii) Visual Observation; and (iii) Dental TraitSuper Imposition.109. By the Super Imposition Test, the image of the skull wassuperimposed on the image of the facial photographs of the male initems 2 to 6 [M.Os. 22 to 25] using the Computer Aided SuperimpositionDevice for demonstrating the fitness of the former in the latter. 110. PW34 Dr. Jeyaprakash adopted the technique viz., theflexion/extension factor (forward/backward tilt and the rotationfactor were calculated from the 'life size' enlargement of the face ofthe male and were used for proper orientation of the skull. Afterorienting the skull in accordance with the posture of the face in thephotograph, the skull and the 'life size' enlargement of thecorresponding face photograph were focussed using two different CCDVideo Cameras. The life size images of the skull and the face of themale were brought out on the computer and T.V. monitors andsuperimposed.111. During superimposition, PW34 Dr. Jeyaprakash has made thefollowing observation:-a) The anthroposcopic landmarks in the face, items 2to 6 and those on the skull, item 1 fitted well.b) The outline of the face in items 2 to 6 and theoutline of the skull, item 1 were found to be in faircongruence with due allowance for flesh thickness.On the above observation, PW34 Dr. Jeyaprakash opined that the skullitem 1 [M.O.20] belonged to male individual seen in the photographsitems 2 to 6 [M.Os.22 to 25]. https://hcservices.ecourts.gov.in/hcservices/

112. In addition to Super Imposition Test, PW34 Dr. Jeyaprakashproceeded additional method of comparison of Dental Traits. Foridentification, PW34 had taken up the front row of teeth found in thephotographs [M.Os.22 to 25] and the front row of teeth found in M.O.20skull. By examination of Dental Traits, PW34 Dr. Jeyaprakash noticedthat the edge of the upper teeth and the upper jaw found in thephotographs [M.Os.22 to 25] are similar to the shape of the upper edgefound in the skull [M.O.20]. PW34, inter alia noticed varioussimilarities in the Dental Traits like embrasure spaces between theteeth and the shapes. By the additional test of Dental Traits, PW34opined that the skull could be accurately identified by matchingthrough the examination of shape of row of teeth.113. Assailing the evidence of PW34 Dr. Jeyaprakash and the SuperImposition Test, on behalf of the accused, it was contended that thevisual comparison of skull and the photographs is vague and aninaccurate method. It was therefore argued that three dimensionobject skull is sought to be compared with two dimension imagephotographs which is contrary to the principles. The comparison ofDental Traits by PW34 was also attacked on the ground that DentalTraits can be assessed only by persons having special knowledge inForensic Odentalogy.114. To counter the evidence of PW34, the retired Director ofForensic Science Department was examined as DW1. According to theAppellants, DW1 invented and adopted a different method which wasuniversally accepted. It was further argued that the method adoptedby DW1 was accepted in the famous Auto Shankar's case reported in 1992LW (Crl) 32 (JS) and the judgment was also exhibited as Ex.D5.115. We have carefully examined the various tests and the opinionof PW34, Ex.P63 report, Ex.P64 laser print photos of deceasedSanthkumar and Ex.P65 work sheet. Visual comparison of skull and thephotographs – comparison of three dimension object skull with twodimension image photographs is only one of the method of comparison ofthe skull with M.Os.22 to 25 photographs. For adopting Video SuperImposition, in his report PW34 Dr. Jeyaprakash has elaborated upon thetest adopted by him.116. PW34 Dr. Jeyaprakash received M.O.20 skull with mandible.PW34 requested for photographs and received one photograph i.e. M.O.21through Gr.I Constable Suseelan [PW14]. Since, M.O.21 photograph didnot have requisite dentition, PW34 sought for some more photographsand obtained M.Os.22 to 25. The photographs were enlarged to 'lifesize' and compared with M.O.20 skull through Video Super Impositiontest. Various tests on the life size photographs enlarged by PW34 andthe steps taken for comparison are clearly stated in Ex.P63 reporttogether with Work sheet Ex.P65. By examination of the evidence of https://hcservices.ecourts.gov.in/hcservices/ PW34 Dr. Jeyaprakash, Ex.P63 report, Ex.P64 laser print photos of thedeceased Santhakumar and Ex.P65 work sheet, there appears to be nodistortion of truth. We agree with the Court below that by SuperImposition Test, prosecution has established the identity of the bodyexhumed as that of the deceased Santhakumar.117. Insofar as, identification of the skull by Dental Traits, onbehalf of the accused it was contended that there are many lapses incomparison of dentition. Placing reliance upon the evidence of DW1,it was contended that the Dental Traits can be assessed only by personhaving special knowledge in Forensic Odentalogy and that theidentification by Dental Traits may not be a sure test foridentification.118. As we have pointed out earlier, PW34 Dr. Jeyaprakash hasadopted the tests viz., (i) Video Super Imposition; (ii) Visualobservation. Only by way of additional test, PW34 has done the testof Dental Traits to confirm his opinion by other methods. PW34 hasalso elaborated the basic principle and the distinct similarities inthe Dental Traits. In view of the overwhelming evidence of PW34, wedo not find any merit in the objection raised by the Defence.119. On behalf of the accused, it was further argued that theSuper Imposition method cannot be the only basis for positiveidentification. In support of their contention, Defence has placedreliance upon the text book of Forensic Art and Illustration by KarenT.Taylor contains the opinion of Classman who has 20 years ofexperience in Anthropology and skeletal Ecology and has active, recordof scholarly publication wherein it is stated as follows:-" I have always considered video superimposition to bean exclusionary tool rather than one of positiveidentification. There are too many variables thatcontain some measure of error, such as size, position,and distortion inherent in the video superimpositionprocedure which preclude the making of a positiveidentification. Further more, for videosuperimposition techniques to be used a sole basis ofa legally accepted identification, a series ofdetailed, systematic tests would need to be conductedto calculate the probability of error, that is, thelikelihood that a determined match between photo andskull is actually misclassified. It is more likelythat video superimposition and other photo typecomparisons will remain important tools to assist inthe identification of unknown remains, but they willnot be exacting techniques for making positiveidentification in the same ways as DNA and ante-mortem/ post-mortem radiographic comparisons. https://hcservices.ecourts.gov.in/hcservices/

120. Reliance was also placed upon the opinion of Dr. NarayanReddy's essentials of Forensic Medicine and Toxicology. We have nodoubt in our mind that Super Imposition Test cannot be the conclusivetest for identification. Super Imposition Test by itself may notconclusively establish the identification. But in the instant case,Super Imposition Test is one piece of evidence relied upon by theprosecution to strengthen the evidence of PW1 and PW2. Scientificevidence of PW34 Dr. Jeyaprakash as to the identification of the bodyexhumed amply strengthen the evidence of PW1 and PW2 and rightlyaccepted by the learned Additional Sessions Judge. We do not find anyreason to take a different view.121. On behalf of the accused, it was contended that whenidentification of the exhumed dead body was uncertain, DNA would havebeen the evidence of certainty to establish the identification andindividualisation. It was further argued that non-conducting of DNAtest vitally affects the prosecution case.122. We have no doubt in our mind that DNA [deoxyribonucleicacid] test provides its own advantageous. Every cell in anindividual's body contains identical DNA. Fingerprints come only fromfingers, but DNA can be found in blood, in urine, in feces, in saliva,in some hair, in the shed skin cells found in a facecloth ortoothbrush – even in the sweatband of a hat. Semen at rape scenes,saliva on the envelope of a ransom note, skin cells scraped onto arope while tying a victim – all provide the opportunity for collectionand analysis. DNA, the physical material that we inherit from ourparents when that one sperm finds that one egg, is absolutelyindividual – with one exception. Identical twins form from onefertilized egg, so their DNA is identical.123. It is not the case of the accused that father or mother ofthe deceased Santhakumar was alive to conduct DNA test. Prosecutionhas examined PW19 Victor – brother of the deceased Santhakumar. PW19Victor is the elder brother of the deceased Santhakumar. No answerswere elicited from PW19 as to whether the parents are alive or not.In the absence of any evidence regarding availability of father andmother of the deceased Santhakumar, the defence is not right incontending that the prosecution ought to have conducted DNA test. Inany event, when the case of the prosecution has been well establishedby direct evidence of PWs.1 and 2 and other circumstances, we do notthink non-conducting DNA test has vitiated the prosecution case.124. The evidence of P.W.34 discloses that on doing SuperImposition Test, in his opinion the skull of the dead-body, which wasfound in Tiger-Chola on 31.10.2001 was that of the deceased whosephotographs have been given for the purpose of comparison. Eventhough lot of searching cross-examination had been made, P.W.34 has https://hcservices.ecourts.gov.in/hcservices/ explained all the doubts raised. Therefore, his opinion can be takento be an additional factor for coming to the conclusion that the dead-body which was found on 31.10.2001 was that of the deceasedSanthakumar.125. Thus, from the evidence of P.W.1 and P.W.2, who haveidentified the photographs M.O.11, M.O.12 and M.O.14 as that of thedeceased and also on the basis of the wearing apparel and even afterseeing the dead-body after it was exhumed as corroborated by theresult of the Super Imposition Test, it can be concluded that thedead-body, which was discovered by the forest officials within TigerChola of Kodaikanal was that of Santhakumar. 126. Now we have to hark back to the question whether his deathwas homicidal or accidental or even suicidal. Based on the requisition dated 01.11.2001 [Ex.P73], P.W.35Dr.Sivakumar, Assistant Surgeon, Government Hospital, Kodaikanal hasconducted post-mortem on 02.11.2001 at about 2.05 P.M. over the thenunknown male dead body [Cr.No.559/2001] with 'early signs and symptomsof decomposition'. PW35 Dr.Sivakumar noticed contusions front andouter of right shoulder 12cm x 8cm and the greater horns of Hyoid boneas fractured. After taking into consideration the viscera report[Ex.P74], PW35 Dr. Sivakumar has given his final opinion [Ex.P76] thatthe death was due to 'Asphyxia due to throttling'.127. Based upon the requisition, PW38 Dr. Maiyazhagan – DistrictPolice Surgeon and Professor of Forensic Medicine, Madurai MedicalCollege has conducted re-postmortem over the exhumed body. PW38 alsofound antemortem injuries viz., (1) dark coloured contusion front ofright shoulder joint 12cm x 8cm; (2) dark coloured contusion 10cm x6cm in the outer aspect of right shoulder and upper arm. On thoroughexamination of hyoid bone and adjoining muscle masses, P.W.38 noticedantemortem fracture of the greater horns from the body of the hyoidbone on both sides which was found separately with surrounding darkcoloured bruising, that fractured ends of both greater horns wereirregular and close to the body, and that extravasation of blood wasthere in the fractured sites of the hyoid bone and in the body. P.W.38asserted that he has confirmed the Hyoid bone fracture as antemortemby intense immense positive 'benzidine test'. After perusing thechemical report [Ex.P100], PW38 gave his final opinion [Ex.P101]opining that the deceased would appear to have died of 'compression ofneck'.128. On behalf of the accused, it was vehemently contended thatthe post-mortem certificate [Ex.P75] has been tampered with. In viewof the serious allegations levelled, during trial the whole Registercontaining the post-mortem certificates has been marked as Ex.P78. https://hcservices.ecourts.gov.in/hcservices/

129. Ex.P74 viscera report refers to Cr.No.559/2001 of KodaikanalP.S. and P.M.No.35/2001. In Ex.P75 post-mortem certificate, P.M.No.is stated as "34". All four papers relating to Ex.P75 contain onlySl.No.34. The notes written in respect of P.M.No.35 has been scoredoff in the Register in between P.M.No.34 and P.M.No.36 and four papershave been torn. It was therefore argued only to fit in withsubsequent post-mortem certificate and to incorporate necessaryidentification marks, P.M.No.35 has been removed and the post-mortemcertificate was tampered with.130. In view of serious allegations levelled, we have carefullyexamined Ex.P78 Register and Ex.P75 post-mortem certificate and otherentries made in Ex.P78 Register. It emerges from the evidence of PW35Dr. Sivakumar that for one post-mortem four pages are being maintainedin the Register. For the post-mortem of the deceased Santhakumar, inall four pages Sl.No. has been written as P.M.No.34. There was somecorrection in P.M.No.34. PW35 Dr. Sivakumar has admitted that thenotes written by him in Page 35 of the Register has been scored downby cross lines. Like wise, PW35 would also admit the suggestion thatin between P.M.No.34 and P.M.No.36, four pages have been torn and evena single copy of P.M.No.35 was not available in the Register.131. Laying emphasis upon the discrepancies in Ex.P78 Registerrelating to post-mortem certificate, it was contended that the post-mortem certificate was manipulated mainly to incorporate theidentification marks and the injuries as per the convenience of theprosecution. In our considered view, the above contention does notmerit acceptance. By careful examination of Ex.P78 Register, we havenoticed that numbers are not assigned regularly in seriatim as per thedates of post-mortem. PW35 Dr. Sivakumar would depose that numbersare given by the employees working in the office. As per Sec.114 –illustration (e) of Indian Evidence Act, all official acts arepresumed to be regularly performed. Having carefully examined Ex.P78Register and other circumstances, we find no merit in the defence thatP.M.No.35 was removed to suit the convenience of the prosecution. Anydisarray of dates or discrepancies pointed out in Ex.P78 Register maynot affect the correctness of the post-mortem certificate Ex.P75.132. In Ex.P47 [Inquest Report] in Col.15, it is stated as "Noexternal injuries found on the body of the deceased" (,we;jthpd; clypy;btspg;gilahd fha';fs; VJk; ,y;iy)/ In Col.8, it is stated as "Thedead body was seen in the Perumalmalai forest area in Tiger Chola, a20 feet pit on the left side of the road between the trees" (gpnujkhdJbgUkhs;kiy tdr;ruf fhl;oy; ilfh;nrhyh vd;w ,lj;jpy; nuhl;od; ,lJg[wj;jpy; 20 mo gs;sj;jpy; ku';fSf;F ,ilapy; fhzg;gl;lJ ). In Col.9 itis stated as "There was no evidence on the body of the deceased https://hcservices.ecourts.gov.in/hcservices/ externally to decide as to whether he had been done to death by others(/// gpwuhy; kuzk; mila bra;ag;gl;lhuh vd;gij Kot[ bra;tjw;fhd vt;tpjjla';fSk; ,we;jthpd; clypy; btspg;gilahft[k; bjhpatpy;iy). In Col.10,it was first written as it is not known as to whether any violence hasbeen committed (td;Kiw VJk; ele;J ,Ug;gjhf bjhpatpy;iy), which waslater struck off.133. Much emphasis was laid upon the observations in Col.Nos.9,10and 15 of Ex.P47 Inquest report and the defence contended that as perthe Inquest report, there was no signs of violence, while conductingpost-mortem, it would not have been possible to notice externalinjuries. It was therefore, contended that the Doctors PW35 and PW38who conducted autopsy have obliged the police in saying that they havenoticed external injuries. It was therefore argued that the externalinjuries noted in Ex.P75 and Ex.P99 post-mortem certificates weredeliberately incorporated and those injuries were non-existent.134. We are not impressed with the above contention. At the timewhen post-mortem was conducted, earlier the body was unidentified.The purpose of preparing an inquest report under Section 174(1)Cr.P.C. is to investigate and draw up a report as to cause of death.As we have pointed out, PW29 S.I. of Police conducted the Inquest on31.10.2001 at 7.00 P.M. The external injuries - contusion in thefront and outer aspect of right shoulder might have gone unnoticed.That apart at the time of conducting Inquest, the identity of the bodywas not known. Therefore, the Investigating Officer, who hadconducted the Inquest, drew up the report on the opinion of thepanchayatdars. The observations in Ex.P47 Inquest report that "noexternal injuries" is not so vital to affect the core of prosecutioncase.135. While conducting post-mortem on 02.11.2001, PW35 Dr.Sivakumar had noticed fracture in the hyoid bone. After perusal ofviscera report, PW35 opined that the deceased would have died 'due tostrangulation of his neck due to asphyxia'.136. PW38 Dr.Maiyazhagan, who conducted re-postmortem noticedfracture in the hyoid bone. On thorough examination of hyoid bone,PW38 has observed as under:-" ... Hyoid bone was found in the neck area in threepieces with adjoining few muscle mass with appreciableblood clots, intact thyroid cartilage, tracheal ringsand oricoid cartilage were found intact with postmortemdissection. On thorough examination of the Hyoid boneand adjoining muscle masses antemortem fracture of thegreater horns from the body of hyoid bone on both sideswhich was found separately with surrounding darkcoloured bruising. Fractured ends of both greater horns https://hcservices.ecourts.gov.in/hcservices/ were irregular and close to the body. Extravasation ofblood was noted in the fractured sites of the hyoid boneand in the body.Antemortem fracture was confirmed by intense immense positive'benzidine test'. PW38 also opined that death was due to'strangulation due to compression of neck'. Fracture of hyoid bone isa definitive sign of homicidal death. Extravasation of blood in thefracture sites of hyoid bone is positive indication of violence –homicidal death.137. Observing that existence of fracture of hyoid bone leads toconclusive proof of strangulation, but absence thereof does not provethe contra and referring to Taylor's Principles and Practice ofMedical Jurisprudence, 13th Edn., pp. 307-08 in (2008) 2 SCC (Cri) 656[Ponnusamy v. State of Tamil Nadu], the Supreme Court has held asfollows:-"23. It is true that the autopsy surgeon, PW 17,did not find any fracture on the hyoid bone. Existenceof such a fracture leads to a conclusive proof ofstrangulation but absence thereof does not provecontra. In Taylor's Principles and Practice ofMedical Jurisprudence, 13th Edn., pp.307-08, it isstated:"The hyoid bone is 'U' shaped and composed offive parts: the body, two greater and two lesserhorns. It is relatively protected, lying at theroot of the tongue where the body is difficult tofeel. The greater horn, which can be felt moreeasily, lies behind the front part of the stripmuscles (sternomastoid), 3 cm below the angle of thelower jaw and 1.5 cm from the midline. The boneossifies from six centres, a pair for the body andone for each horn. The greater horns are, in earlylife, connected to the body by cartilage but aftermiddle life they are usually united by bone. Thelesser horns are situated close to the junction ofthe greater horns in the body. They are connectedto the body of the bone by fibrous tissue andoccasionally to the greater horns by synovial jointswhich usually persist throughout life butoccasionally become ankylosed.Our own findings suggest that although thehardening of the bone is related to age there can beconsiderable variation and elderly people sometimesshow only slight ossification.From the above consideration of the anatomy itwill be appreciated that while injuries to the bodyare unlikely, a grip high up on the neck may readilyproduce fractures of the greater horns. Sometimes https://hcservices.ecourts.gov.in/hcservices/ it would appear that the local pressure from thethumb causes a fracture on one side only.While the amount of force in manualstrangulation would often appear to be greatly inexcess of that required to cause death, theapplication of such force, as evidenced by extensiveexternal and soft tissue injuries, make it unusualto find fractures of the hyoid bone in a personunder the age of 40 years.As stated, even in older people in whichossification is incomplete, considerable violencemay leave this bone intact. This view is confirmedby Green. He gives interesting figures: in 34 casesof manual strangulation the hyoid was fractured in12 (35%) as compared with the classic paper ofGonzales who reported four fractures in 24 cases.The figures in strangulation by ligature show thatthe percentage of hyoid fractures was 13. Our ownfigures are similar to those of Green."24. In Journal of Forensic Sciences, Vol.41 underthe title – Fracture of the Hyoid Bone inStrangulation: Comparison of Fractured and UnfracturedHyoids from Victims of Strangulation, it is stated:"The hyoid is the U-shaped bone of the neckthat is fractured in one-third of all homicides bystrangulation. On this basis, post-mortem detectionof hyoid fracture is relevant to the diagnosis ofstrangulation. However, since many cases lack ahyoid fracture, the absence of this finding does notexclude strangulation as a cause of death. Thereasons why some hyoids fracture and others do notmay relate to the nature and magnitude of forceapplied to the neck, age of the victim, nature ofthe instrument (ligature or hands) used to strangle,and intrinsic anatomic features of the hyoid bone.We compared the case profiles and xeroradiographicappearance of the hyoids of 20 victims of homicidalstrangulation with and without hyoid fracture (n =10, each). The fractured hyoids occurred in oldervictims of strangulation (39 + 14 years) whencompared to the victims with unfractured hyoids (30+ 10 years). The age dependency of hyoid fracturecorrelated with the degree of ossification or fusionof the hyoid synchondroses. The hyoid was fused inolder victims of strangulation (41 + 12 years)whereas the unfused hyoids were found in the youngervictims (28 + 10 years). In addition, the hyoidbone was ossified or fused in 70% of all fractured https://hcservices.ecourts.gov.in/hcservices/ hyoids, but, only 30% of the unfractured hyoids werefused. The shape of the hyoid bone was also foundto differentiate fractured and unfractured hyoids.Fractured hyoids were longer in the anterior-posterior plane and were more steeply sloping whencompared with unfractured hyoids. These dataindicate that hyoids of strangulation victims, withand without fracture, are distinguished by variousindices of shape and rigidity. On this basis, itmay be possible to explain why some victims ofstrangulation do not have fractured hyoid bones."138. We must take into consideration the fact that the dead bodywas in the stage of decomposition and the parts of the body – face,chest, abdomen ...... slightly bloated (early signs of decomposition).While conducting re-postmortem, the body was highly in a decompositionstage. Therefore, the other marks of strangulation which could havebeen found were not noticed in this case.139. On behalf of the accused, it was contended that evenadvanced stage of decomposition would not affect the mark of ligatureas alleged by the prosecution. Drawing Court's attention to certainpassages on the essentials of Forensic Medicine and Toxicology by Dr.Narayan Reddy and Hand Book of Forensic Medicine and Toxicology –V.V.Pillay at Page 193, it was contended that even if putrefaction hasset in, the ligature mark usually remains distinct and asphyxialcomponent is always more pronounced in strangulation, as compared tohanging. It was further contended that as per the passages of theabove text books, the ligature could be visible even on a putrefiedbody.140. In Exs.P75 and P99 – post-mortem certificates, no ligaturemark has been shown. It was therefore contended that as per thepassages in the Standard Books of Forensic Medicine and Toxicology,the ligature mark which would usually remain distinct being absentcreates serious doubt, the cause of death by strangulation as allegedby the prosecution. We are not inclined to accept the abovecontention. Benzidine test is a conclusive test to decide whetherfracture of hyoid bone is antemortem or postmortem. Fracture of hyoidbone being antemortem injury is affirmed by Benzidine test. As wehave noted earlier, the body was in advanced stage of decompositionand therefore the signs of ligature mark/strangulation could not havebeen noticed. Ante-mortem injury of hyoid bone is a strong piece ofevidence to support the cause of death – strangulation and death dueto 'asphyxia' as projected by the prosecution. Based on the evidenceof PW35 Dr. Sivakumar and PW38 Dr. Meiyazhagan and othercircumstances, trial court rightly held that the death proved to be'homicidal'. https://hcservices.ecourts.gov.in/hcservices/

141. In this context it may be remembered that even though theprosecution has been able to prove that Santhakumar had been abductedand forced to go with the accused persons on 26.10.2001, the accusedpersons in their statement under Section 313 Cr.P.C., have notwhispered even a single line as to what happened to Santhakumar.While the witnesses were examined also there has been no singlewhisper that Santhakumar had escaped from the custody of such accusedpersons or had been let of by them. There is also no suggestion evenin the remotest manner that Santhakumar had committed suicide byjumping from the hill or had accidentally fallen down.142. The cross-examination directed against the Doctors was moreon the aspect of confusion in the number given in the post-mortemreport and similar things; but there is no specific suggestion to anyof the Doctors that the death was either suicidal or homicidal. 143. Thus, from the materials travelled so far, it is apparentthat the prosecution in addition to proving a strong motive, abductionand the fact that the deceased was last seen alive in the company ofthe accused persons, that the death was homicidal and death hadoccurred on 26.10.2001 or may be soon thereafter. Under suchcircumstances, the question is whether the contention of the counselsfor the appellants that the prosecution has not been able to prove thecase against the accused persons beyond all reasonable doubt can beaccepted.144. It has been contended by much vehemence and lessconviction that the benefit of doubt should always be given to theaccused and the evidence of the prosecution must be judged by keepingthe above salutary principles in view. 145. Benefit of doubt should not be doubt of a vacillating mindor a fickle mind. Benefit of doubt to which accused is entitled isreasonable doubt, the doubt which rational thinking men wouldreasonably entertain and not the doubt of timid mind which fights shyor is afraid of the logical consequences if the benefit is not given.Proof beyond reasonable doubt does not mean proof beyond shadow ofdoubt. Law would fail to protect the community, if it admittedfanciful possibilities that deflect the course of Justice.146. In (1973) 2 SCC 793 = AIR 1973 SC 2622 (SHIVAJI SAHABRAOBOBADE v. STATE OF MAHARASHTRA, in felicitous words of Justice V.R.Krishna Iyer, it was observed :-"6. . . . The cherished principles or golden thread ofproof beyond reasonable doubt which runs through the web ofour law should not be stretched morbidly to embrace everyhunch, hesitancy and degree of doubt. The excessivesolicitude reflected in the attitude that a thousand guiltymen may go but one innocent martyr shall not suffer is a https://hcservices.ecourts.gov.in/hcservices/ false dilemma. Only reasonable doubts belong to the accused.Otherwise any practical system of justice will then breakdown and lose credibility with the community. . . ."147. In (1974) 4 SCC 603 = AIR 1974 SC 1567 (KHEM KARAN & OTHERSv. STATE OF UTTAR PRADESH), it was observed:-"5. . . . Neither mere possibilities nor remoteprobabilities nor mere doubts which are not reasonable can,without danger to the administration of justice, be thefoundation of the acquittal of an accused person, if thereis otherwise fairly credible testimony. . . ."148. Subsequently, in (1979) 1 SCC 355 = AIR 1979 SC 387 (K.GOPAL REDDY v. STATE OF ANDHRA PRADESH), it was observed:-"9. . . . To entitle an accused person to the benefitof a doubt arising from the possibility of a duality ofviews, the possible view in favour of the accused must be asnearly reasonably probable as that against him. If thepreponderance of probability is all one way, a barepossibility of another view will not entitle the accused toclaim the benefit of any doubt. It is, therefore, essentialthat any view of the evidence in favour of the accused mustbe reasonable even as any doubt, the benefit of which anaccused person may claim, must be reasonable. “A reasonabledoubt”, it has been remarked, “does not mean some light,airy, insubstantial doubt that may flit through the minds ofany of us about almost anything at some time or other; itdoes not mean a doubt begotten by sympathy out of reluctanceto convict; it means a real doubt, a doubt founded uponreasons . . ."It was further observed :-"10. . . . Where the trial court allows itself to bebeset with fanciful doubts, rejects creditworthy evidencefor slender reasons and takes a view of the evidence whichis but barely possible, it is the obvious duty of the HighCourt to interfere in the interest of justice, lest theadministration of justice be brought to ridicule. . . ."149. Considering the scope that Judge also presides to see that aguilty man does not escape, in AIR 1988 SC 1998 [State of U.P. v. AnilSingh], Supreme Court held as under:-"15. ....... It is necessary to remember that aJudge does not preside over a criminal trial merely tosee that no innocent man is punished. A Judge alsopresides to see that a guilty man does not escape. Oneis as important as the other. Both are public dutieswhich the Judge has to perform." https://hcservices.ecourts.gov.in/hcservices/

150. Observing that reasonable doubt must be free from an overemotional response, in AIR 1988 SC 2154 [State of U.P. v. KrishnaGopal and another], Supreme Court held as follows:-"13. ..... To constitute reasonable doubt, it must befree from an over emotional response. Doubts must beactual and substantial doubts as to the guilt of theaccused person arising from the evidence, or from the lackof it, as opposed to mere vague apprehensions. Areasonable doubt is not an imaginary, trivial or a merelypossible doubt; but a fair doubt based upon reason andcommon sense."151. Subsequently, similar sentiments have been expressed in manylatest decisions such as AIR 2003 SC 2978 (KRISHNAN v. STATE) and JT2008(9) SC 65 (VALSON v. STATE OF KERALA).152. It is no doubt true that there is no eye-witness to theultimate act of killing of the deceased by the accused persons andthat part of the allegation is sought to be proved only throughcircumstantial evidence. Initial part of the prosecution caserelating to existence of strong motive and abduction of the deceasedby the accused persons and the fact that they were last seen togetherhave been proved through occular evidence of P.W.1 and P.W.2corroborated by certain documentary evidence such as entries in theregister of various hotels, guest houses indicating the presence ofsome of the accused persons.153. The prosecution has been able to prove the avowed motive ofAccused No.1 to marry P.W.1 as his third wife and he wanted initiallyto persuade the husband of P.W.1 to leave her and thereafter he andhis henchmen had threatened the deceased with dire consequences andeven instruction had been given to Accused No.2 and others toexterminate Santhakumar. When all these had been proved futile andSanthakumar showed no sign to Accused No.1, Santhakumar, P.W.1 andother family members were forced to travel with Accused No.1 and hishenchmen from Chennai to Tirunelveli on 22.10.2001 and thereafter thedeceased was forced to go with some of the accused persons in thevehicle belonging to Accused No.1 on 26.10.2001 and was thus last seenalive in the company of those accused persons who were obviouslyacting at the behest of Accused No.1. Thereafter a dead-body wasrecovered from Tiger-chola and a case was registered under Section 174Cr.P.C. as Kodaikanal P.S. Cr.No.559 of 2001. Subsequently, suchdead-body was identified as that of Santhakumar and it was also provedthat death was homicidal in nature. Under these circumstances, can itbe said that the accused persons were instrumental in killingSanthakumar or can it be said that still there is any reasonabledoubt. https://hcservices.ecourts.gov.in/hcservices/

154. The presence of a strong motive is always considered as acircumstance against the accused, though prosecution case is notnecessarily to be discarded merely because motive has not been proved.In this connection, in 2000(10) SCC 328 - Damodar v. State ofKarnataka, it was observed."4..... From the evidence of P.W.1, the mother ofthe deceased it is clear that the relationship betweenthe appellant and PW 1 was strained even though they wererelated to each other. PW 1 has stated that the accusedwas making constant demand for money from her which shewas refusing. The accused was also a bad character. Heonce assaulted a woman in the neighbourhood after whichPW 1 did not allow him to come to her house. Therefore,the accused was bearing ill-will against her. ..."This indicates that motive was considered as one of the adversecircumstances.155. The learned counsel for appellants placed reliance upon thedecision of the Supreme Court reported in 2007 (13) SCC 284 (KESHAV v.STATE OF MAHRASTRA), wherein it was observed that a judgment ofconviction cannot be recorded only on the basis of motive.156. Reliance was also placed upon 2007(13) SCC 399 (Malleshappav. State of Karnataka), wherein while reversing the order ofconviction, it was observed that there is no convincing evidenceplaced by the prosecution to show that there was motive and that thedeceased Yankanna had illicit relationship with Smt.Hanamawwa, thewife of the appellant.157. It is to be noticed that in the above two cases, the ApexCourt did not lay down that existence of a motive is not a relevantlink in the chain of circumstantial evidence. In the first case, itobserved that existence of motive alone would not be sufficient and inthe latter case, it observed that there was no acceptable evidence forthe motive.158. In 1992 (3) SCC 106 (Ganeshlal v. State of Maharashtra),it was observed:"9..... It is true as contended for the appellantthat the evidence on record is not sufficient to arriveat an immediate motive to commit the crime and the casedepends on circumstantial evidence. But incircumstantial evidence also when the facts are clear itis immaterial that no motive has been proved. Men do notact wholly without motive. Failure to discover themotive of the offence does not signify the non-existenceof the crime. The failure to discover motive by https://hcservices.ecourts.gov.in/hcservices/ appropriate clinching evidence may be a weakness in theproof of the prosecution case, but it is not necessarilyfatal as a matter of law. Proof of motive is never anindispensable factor for conviction. In Atley v. Stateof U.P. (AIR 1955 SC 807), this Court held that wherethere is clear evidence that the person has committed theoffence, it is immaterial where no motive for commissionof the crime has been shown. Therefore, even in the caseof circumstantial evidence, absence of motive which maybe one of the strongest links to connect the chain wouldnot necessarily become fatal provided the othercircumstances would complete the chain and connect theaccused with the commission of the offence, leaving noroom for reasonable doubt, even from the provedcircumstances. Therefore, the evidence of PW 4 and PW 5partly with regard to the motive may not be sufficient tobring home the strong immediate motive. ..."159. Law is well settled that when the prosecution case dependsprimarily on the circumstantial evidence, such evidence must satisfythe following tests :-(1) the circumstances from which an inference ofguilt is sought to be drawn, must be cogently and firmlyestablished;(2) those circumstances should be of a definitetendency unerringly pointing towards guilt of theaccused;(3) the circumstances, taken cumulatively, shouldform a chain so complete that there is no escape from theconclusion that within all human probability the crimewas committed by the accused and none else; and(4) the circumstantial evidence in order to sustainconviction must be complete and incapable of explanationof any order hypothesis than that of guilt of the accusedand such evidence should not only be consistent with theguilt of the accused but should be inconsistent with hisinnocence.160. In (1994) 2 SCC 220 (DHANANJOY CHATTERJEE v. STATE OFW.B.) , while considering the nature of proof required in a case basedon circumstantial evidence, it was observed:"....the circumstances from which the conclusionof guilt is to be drawn have not only to be fullyestablished but also that all the circumstances soestablished should be of a conclusive nature andconsistent only with the hypothesis of the guilt ofthe accused. Those circumstances should not becapable of being explained by any other hypothesis https://hcservices.ecourts.gov.in/hcservices/ except the guilt of the accused and the chain of theevidence must be so complete as not to leave anyreasonable ground for the belief consistent with theinnocence of the accused. It needs no reminder thatlegally established circumstances and not merelyindignation of the court can form the basis ofconviction and the more serious the crime, the greatershould be the care taken to scrutinise the evidencelest suspicion takes the place of proof."161. In AIR 2003 SC 2846 (GOLAGONDA VENKATESWARA RAO v. STATE OFA.P.) it was observed:"6. By now it is well settled principle of law thatincases where the evidence is purely circumstantial innature, the facts the circumstances from which theconclusion of guilt is sought to be drawn must be fullyestablished beyond any reasonable doubt and suchcircumstances must be consistent and unerringly point tothe guilt of the accused and the chain of circumstancesmust be established by the prosecution."162. In AIR 1987 SC 1507 (KANSA BEHERS v. STATE OF ORISSA) it wasobserved:"12.... It is a settled rule of circumstantialevidence that each of the circumstances have to beestablished beyond doubt and all the circumstances mustlead to the only one inference and that is of the guiltof the accused. ..."163. In this connection, we may refer to the decision of theSupreme Court in AIR 2007 SC 1355 [GEEJAGANDA SOMAIAH v. STATE OFKARNATAKA], wherein after referring to several earlier decisions ofthe Supreme Court and Text Book of Sir Alfred Wills on"Circumstantial Evidence", it was observed as follows :-". . . The conditions precedent in the words ofthis Court, before conviction could be based oncircumstantial evidence, must be fully established. Theyare:(1) the circumstances from which the conclusion ofguilt is to be drawn should be fully established.The circumstances concerned must or should and notmay be established;(2) the facts so established should be consistentonly with the hypothesis of the guilt of theaccused, that is to say, they should not beexplainable on any other hypothesis except that theaccused is guilty; https://hcservices.ecourts.gov.in/hcservices/ (3) the circumstances should be of a conclusivenature and tendency;(4) they should exclude every possible hypothesisexcept the one to be proved; and(5) there must be a chain of evidence so complete asnot to leave any reasonable ground for theconclusion consistent with the innocence of theaccused and must show that in all human probabilitythe act must have been done by the accused.164. Similar principle has been reiterated in 2007 AIR SCW 2092[Yogesh Narain Saxena v. State of Uttaranchal]; (2007) 2 SCC (Cri) 590[Bablu alias Mubarik Hussain v. State of Rajasthan], (2007) 12 SCC 288[Swamy Shraddananda v. State of Karnataka] 2008 AIR SCW 3913[Venkatesan v. State of Tamil Nadu] and (2008) 1 SCC (Cri) 109 [GaganKnojia and Another V. State of Punjab]. 165. While considering the question of conviction of an accusedon the basis of circumstantial evidence, in 2000(10) SCC 328 - Damodarv. State of Karnataka, the following circumstances, namely,(i)existence of motive; (ii)the circumstance that the deceased was lastseen in the company of the accused; (iii)the dead body wassubsequently exhumed from the house of the accused and from the placewhich was dug by the accused himself; and (iv) there was nosatisfactory explanation by the accused were considered to besufficient.166. In the present case, apart from the strong motive and theprevious efforts to get rid of Santhakumar by hook or by crook,strong incriminating factors are the facts that Santhakumar was forcedto travel with the accused persons from Chennai to Tirunelveli on24.10.2001 forcibly and, thereafter, after performing some so calledtreatment, he was forced to travel with some of the accused persons on26.10.2001 in the vehicle belonging to Accused No.1 occupied by otherhenchmen of Accused No.1. The abduction of the accused followed byhis unnatural death and discovery of dead body coupled with sphinxlike silence by the accused persons, in our opinion, constitute a verystrong and “unsnappable” chain of events unerringly pointing towardsall the accused persons. We are conscious of the well settledproposition of law that, under normal circumstances, merely becausethe accused persons do not explain any particular circumstance, thecourts trying a criminal case, may not draw any adverse inference.However, in recent times, a line has been delineated which clearlypoints to the responsibility on the accused person to explain thecircumstances which are within his own special knowledge.167. In 2000 SCC (Cri) 1516 [STATE OF W.B. v. MIR MOHD. OMAR],the Supreme Court has observed as follows:- https://hcservices.ecourts.gov.in/hcservices/ " . . . if the deceased was proved to have been abductedby the accused and was found murdered soon thereafter itis for the abductors to satisfy the court as to how elsethe abducted victim was dealt with by them. In theabsence of any such explanation it is open to the court todraw the presumption that the abductor is the murdereralso.168. Observing that the abductors alone could tell the court asto what happened to the deceased after they were abducted, the SupremeCourt in 2001 SCC (Cri) 717 [SUCHA SINGH v. STATE OF PUNJAB] heldthus:-"15. The abductors alone could tell the court as towhat happened to the deceased after they were abducted.When the abductors withheld that information from thecourt there is every justification for drawing theinference, in the light of all the preceding andsucceeding circumstances adverted to above, that theabductors are the murderers of the deceased.. . .19. We pointed out that Section 106 of the EvidenceAct isnot intended to relieve the prosecution of itsburden to prove the guilt of the accused beyondreasonable doubt, but the section would apply to caseswhere the prosecution has succeeded in proving facts forwhich a reasonable inference can be drawn regarding theexistence of certain other facts, unless the accused byvirtue of special knowledge regarding such facts failedto offer any explanation which might drive the court todraw a different inference.. . .21. We are mindful of what is frequently happeningduring these days. Persons are kidnapped in the sight ofothers and are forcibly taken out of the sight of allothers and later the kidnapped are killed. If a legalprinciple is to be laid down that for the murder of suchkidnapped there should necessarily be independentevidence apart from the circumstances enumerated above,we would be providing a safe jurisprudence for protectingsuch criminal activities. India cannot now afford to laydown any such legal principle insulating the marauders oftheir activities of killing kidnapped innocents outsidethe ken of others."169. Absence of any explanation was also considered to be acircumstance in 2007 (12) SCC 288 (cited supra). https://hcservices.ecourts.gov.in/hcservices/

170. While considering the circumstances of the deceased and theaccused being last seen together, the proximity between the date onwhich they were last seen together and the date of incident isrelevant, as apparent from the decisions of the Supreme Court in 2007(3) SCC 755 - State of Goa vs. Sanjay Thakran. It was observedtherein :-"34. From the principle laid down by this Court, thecircumstance of last seen together would normally be takeninto consideration for finding the accused guilty of theoffence charged with when it is established by theprosecution that the time gap between the point of time whenthe accused and the deceased were found together alive andwhen the deceased was found dead is so small thatpossibility of any other person being with the deceasedcould completely be ruled out. The time gap between theaccused persons seen in the company of the deceased and thedetection of the crime would be a material consideration forappreciation of the evidence and placing reliance on it asa circumstance against the accused. But, in all cases, itcannot be said that the evidence of last seen together is tobe rejected merely because the time gap between the accusedpersons and the deceased last seen together and the crimecoming to light is after (sic of) a considerable longduration. There can be no fixed or straitjacket formula forthe duration of time gap in this regard and it would dependupon the evidence led by the prosecution to remove thepossibility of any other person meeting the deceased in theintervening period, that is to say, if the prosecution isable to lead such an evidence that likelihood of any personother than the accused, being the author of the crime,becomes impossible, then the evidence of circumstance oflast seen together, although there is long duration of time,can be considered as one of the circumstances in the chainof circumstances to prove the guilt against such accusedpersons. Hence, if the prosecution proves that in the lightof the facts and circumstances of the case, there was nopossibility of any other person meeting or approaching thedeceased at the place of incident or before the commissionof the crime, in the intervening period, the proof of lastseen together would be relevant evidence. For instance, ifit can be demonstrated by showing that the accused personswere in exclusive possession of the place where the incidentoccurred or where they were last seen together with thedeceased, and there was no possibility of any intrusion tothat place by any third party, then a relatively wider timegap would not affect the prosecution case. [Emphasis added] https://hcservices.ecourts.gov.in/hcservices/

171. Regarding burden of proof, applicability of Section 106 andSection 114 of the Evidence Act, it was observed in 2000(8) SCC 382 -State of W.B. v. Mir Mohammad Omar, as under:"31.The pristine rule that the burden of proof is onthe prosecution to prove the guilt of the accused shouldnot be taken as a fossilised doctrine as though it admitsno process of intelligent reasoning. the doctrine ofpresumption is not alien to the above rule, nor would itimpair the temper of the rule. On the other hand, if thetraditional rule relating to burden of proof of theprosecution is allowed to be wrapped in pedantic coverage,the offenders in serious offences would be the majorbeneficiaries and the society would be the casualty.. . .33.Presumption of fact is an inferences to theexistence of one fact from the existence of some otherfacts, unless the truth of such inference is disproved.Presumption of fact is a rule in law of evidence thatfact otherwise doubtful may be inferred from certain otherproved facts. When inferring the existence of a fact fromother set of proved facts, the court exercises a processof reasoning and reaches a logical conclusion as the mostprobable position. The above principle has gainedlegislative recognition in India when Section 114 isincorporated in the Evidence Act. It empowers the courtto presume the existence of any fact which it thinkslikely to have happened. In that process the court shallhave regard to the common course of natural events, humanconduct etc. in relation to the facts of the case.34.When it is proved to the satisfaction of the Courtthat Mahesh was abducted by the accused and they took himout of that area, the accused alone knew what happened tohim until he was with them. If he was found murderedwithin a short time after the abduction the permittedreasoning process would enable the Court to draw thepresumption that the accused have murdered him. Suchinference can be disrupted if the accused would tell theCourt what else happened to Mahesh at least until he wasin their custody."(Emphasis added)172. In our view the observations made in these decisions noticedearlier would squarely apply to the present case. The deceasedSanthakumar was abducted and assaulted at the behest of A1 and he washanded over to A2 to A4 and A6 and thereafter the Tata Sumo carbearing registration No.TN-09 Q 1310 proceeded towards Dindigul. A2to A4 and A6 took away the deceased Santhakumar. What happenedthereafter to Santhakumar is especially within the knowledge of suchappellants,who have given no explanation. It was for the accused to https://hcservices.ecourts.gov.in/hcservices/ explain what happened to Santhakumar after they took him away. Whenthe abductors withhold that information from the court there is everyjustification for drawing the inference that they murderedSanthakumar. Prosecution is succeeded in proving the facts from whicha reasonable inference can be drawn regarding death. Appellants byvirtue of their special knowledge must offer explanation which wouldlead to draw different inference. But the stand of the appellants isa bare denial of the prosecution case. In the absence of anyexplanation, the inevitable inference is that the appellants areresponsible for the death of the deceased Santhakumar.173. For the aforesaid reasons, we are of the considered viewthat the guilt of the accused persons has been proved beyond allreasonable doubt. 174. In addition to the above circumstances, the prosecution hadrelied upon the statement of different accused persons leading todiscovery of facts as envisaged under Section 27 of the Evidence Act.The trial court had relied upon the statement of A1 leading torecovery of vehicles belonging to A1, statement of A2 leading torecovery of vehicle belonging to A2 and a lungi inside such vehicleand statement of A2 relating to discovery of dead-body of the deceasedand the statement of A6 leading to recovery of money-purse containingcertain cash, photographs of P.W.1 and recovery of gold chain andcertain other articles belonging to either P.W.1 or the deceased. Sofar as the statement of A1 relating to recovery of vehicles of A1 isconcerned, the statement of several witnesses including P.W.1 andP.W.2 made before the police clearly indicated that the vehiclesbelonging to A1 had been utilised on many of the occasions includingtravel to different places including Tirunelveli and return from suchplaces. Under such circumstances, it must be taken that it wasalready known to the police that particular vehicles belonging to A1had been utilised for the purpose of transportation in connection withdifferent incidents. Therefore, it cannot be said that confession ofA1 stating about the utilisation of the vehicles for the particularpurpose in connection with the crime led the police to recovery of thevehicles as the involvement of those vehicles was already known to thepolice. Such vehicles were also recovered not from any secret placeknown only to A1 but from the places which were accessible and knownto everybody. Under those circumstances, we do not think any valuecan be attached to such statement. For similar reason, the statementof A2 leading to recovery of the vehicle belonging to A2 is also of nouse. So far as the recovery of Lungi is concerned, that could havebeen used as an incriminating circumstance, if there would be anymaterial to link the lungi with the murder of the deceased. Theconfession of A2 that with the lungi the deceased was strangulated isotherwise not admissible and in the absence of any other incriminatingcircumstance to connect the lungi with the alleged crime, recovery ofthe lungi from inside the vehicle on the basis of the statement from https://hcservices.ecourts.gov.in/hcservices/ A2 is of no consequence. 175. The statement leading to discovery of the dead-body and thestatement leading to recovery of certain other incriminating articlesmay, however, stand on a different footing and those aspects arerequired to be considered a little more elaborately.176. Before analysing the evidence, it may be necessary toexamine the scope of Section 27 of the Evidence Act. The scope ofSection 27 of the Evidence Act has been stated and re-stated inseveral decisions of the Supreme Court and in almost all the decisionsof the Supreme Court or for that matter of any High Court, referenceis usually made to the observation of the Privy Council in AIR 1947 PC67 (PULUKURI KOTTAYA v. KING EMPEROR). The relevant portion of theobservation of the Privy Counsel made in the said case is to thefollowing effect:- ". . . It is fallacious to treat the 'factdiscovered' within the section as equivalent to theobject produced : the fact discovered embraces theplace from which the object is produced and theknowledge of the accused as to this and the informationgiven must relate distinctly to this fact. Informationas to past user or the past history, of the objectproduced is not related to his discovery in the settingin which it is discovered. Information supplied by aperson in custody that 'I will produce a knifeconcealed in the roof of my house' does not lead to thediscovery of the knife : knives were discovered manyyears ago. It leads to the discovery of the fact thata knife is concealed in the house of the informant tohis knowledge, and if the knife is proved to have beenused in the commission of the offence, the factdiscovered is very relevant. But if to the statementthe words be added 'with which stabbed A.', these wordsare inadmissible since they do not related to thediscovery of the knife in the house of the informant.(p.77)"(Emphasis added)177. After approving the aforesaid observation and referring toseveral other Supreme Court decisions, the various requirements ofSection 27 have been summed up in AIR 2004 SC 2865 (ANTER SINGH v.STATE OF RAJASTHAN) in the following manner."16.....(1)The fact of which evidence is sought tobe given must be relevant to the issue. It must beborne in mind that the provision has nothing to do withquestion of relevancy. The relevancy of the factdiscovered must be established according to the https://hcservices.ecourts.gov.in/hcservices/ prescriptions relating to relevancy of other evidenceconnecting it with the crime in order to make the factdiscovered admissible. (2) The fact must have been discovered.(3) The discovery must have been in consequence ofsome information received from the accused and not byaccused's own act.(4) The persons giving the information must beaccused of any offence.(5) He must be in the custody of a police officer.(6) The discovery of a fact in consequence ofinformation received from an accused in custody must bedeposed to.(7) Thereupon only that portion of the informationwhich relates distinctly or strictly to the factdiscovered can be proved. The rest is admissible."178. In the light of the above observation made by the SupremeCourt and the Privy Council, it is necessary to examine the evidenceon record.179. The statement of accused No.2 was made before the Police atVelacherry Police Station. P.W.7, who was working as VelacherryVillage Administrative Officer in the office of Tahsildar, Mambalam-Guindy Taluk, had been directed to go to the Office of the AssistantCommissioner of Police for help and assistance during theinvestigation on 30.11.2001. He had gone to such police station lock-up, where accused Nos.2, 3, 4 and 5 were in police custody. A-2 gavea confessional statement to the Inspector of Police, wherein he stated".... if he were taken to Kodaikanal, he would show the spot, TigerChola where the dead body was thrown by them. ..." It appears thatsubsequently, A-4 and A-3 made similar statements. A-2 was taken toKodaikanal in Police Van, along with police personnel, accompanied byP.W.7. According to P.W.7: "... A2 showed the spot at which the dead body wasthrown at Tiger Chola and then by going to the Policestation at Kodaikanal; A2 identified the photos of the deadbody of Santhakumar kept by the police there; and the pant,shirt and belt worn by Santhakumar. This was done on1.12.2001 ...."180. In Cross Examination, P.W.7 has stated ".... A2 showed theplace near by the curve in the area Tiger Chola. A2 did not climbdown that valley and pointed out that particular spot. There is aname board post planted near that curve showing the same TigerChola. ..." https://hcservices.ecourts.gov.in/hcservices/

181. P.Ws.41 and 42 were the relevant Investigating Officersbefore whom the statements leading to discovery had been made. P.W.41has stated ".... The A-2 had stated that he would identify thesite in which the dead body was buried if he is taken toTiger Shola at the peak of Kodaikanal hills. ....... On theway, A2 having looked upon a bend in the place havingplaque which reads as "Tiger Shola", found at the peak ofthe Kodaikanal hills, stated that he threw the dead bodyon that site only. . . . But, no such dead body was foundthere...."He has further stated that thereafter they proceeded to KodaikanalPolice Station and there it was found that the dead-body had beenrecovered and photographs of such dead-body were identified by fouraccused persons as that of Santhakumar.P.W.42, another Investigating Officer stated :- "..... On 1.12.2001 evening at about 4 PM, when wewere proceeding towards Kodaikanal by van, on requestingto stop the vehicle at Tiger Solo bend, we stopped thevan. Then, the accused Daniel got down from the van andidentified the said place. He pointed out that place asthe place where they threw the dead body. . . . .Allalkathan, Inspector of Police, who present with us,questioned the accused that the dead body was not found inthat place, all the three accused answered as they threwthe dead body there only. ...""He further stated that all of them had proceeded to KodaikanalPolice Station where it was found that forest officials had alreadyfound a dead-body and on seeing the photographs of such dead-body, theaccused, who were present there, identified the photographs as that ofthe deceased.182. It may prima facie appear as if the evidence of P.W.7,to some extent, contradicts the evidence of P.W.41 and more so P.W.42inasmuch as P.W.7 has not categorically stated that the dead-body wasnot found at the place where A2 had pointed out that body had beenthrown. On the other hand, the evidence of P.W.41 and P.W.42indicates that no dead-body was found at the place where it was statedto have been thrown by the accused. The specific statement of P.W.7was "A2 did not climb down that valley and pointed out that particularspot". This only indicates that A2 had not climbed down that valley.But the statement is consistent with that of P.W.41 and P.W.42 to theextent that A2 had pointed out the place where the dead-body had beenthrown. The evidence of P.W.41 and P.W.42 makes it clear no suchdead-body could be found there and thereafter all of them proceeded toKodaikanal police station where it transpired that the dead-body hadalready been recovered from Tiger Chola by the forest officials and https://hcservices.ecourts.gov.in/hcservices/ photographs of that dead-body were identified by A2 and other accusedpersons to be that of the deceased Santhakumar. Under thesecircumstances, it may be reasonable to conclude that though on thebasis of the statement made by A2 no dead-body could be discovered byP.W.41 and P.W.42 from the place where it was thrown, the fact remainsthat such statement ultimately led to discovery of the fact that thedead-body of Santhakumar had been recovered from Tiger Chola. To someextent, such statement would be admissible under Section 27 of theEvidence Act, inasmuch as, ultimately, the statement paved the way forthe prosecution to discover the dead-body of the deceased. 183. Learned Senior Counsel appearing for the AppellantNos.2 to 9 submitted that in view of the decision of the Supreme Courtin (1997) 6 SCC 171 (VIJENDER v. STATE OF DELHI), the statement ofAccused No.2 regarding place where the dead-body was thrown cannot beconsidered as admissible as it led not to discovery of any "fact", butto the particular place Tiger Chola, where no dead-body was found. Though in the first blush it may appear that the above decisionof the Supreme Court is applicable, on deeper scrutiny, we find thatthe said decision is not applicable to the facts of the present case.In that case, deceased Khurshid had been dragged on 26.6.1992 and thedead-body of young boy was found on 27.6.1992, which was later onidentified by the mother P.W.6., as the dead-body of her son Khurshid.Under such circumstances, the Supreme Court observed :-"17. . . . Evidence was led through the above threepolice witnesses that in consequence of information receivedfrom the three appellants on 30-6-1992 they discovered theplace where the dead body of Khurshid was thrown. As alreadynoticed, the dead body of Khurshid was recovered on 27-6-1992 and therefore the question of discovery of the placewhere it was thrown thereafter could not arise. UnderSection 27 of the Evidence Act if an information given bythe accused leads to the discovery of a fact which is thedirect outcome of such information then only it would beevidence but when the fact has already been discovered as inthe instant case — evidence could not be led in respectthereof."It may be noted that, in the present case, an unidentified dead-body had been accidentally recovered from the concerned place and itis only the statement of the accused which ultimately led the policeto connect such unidentified dead-body to be that of the deceasedSanthakumar. It is not even remotely suggested to any of theInvestigating Officers that the unidentified dead-body, which had beenaccidentally recovered, was already known to the police to be that ofthe deceased Santhakumar.184. On the other hand, the decision of the Supreme Court in 2000SCC (Cri) 1088 (STATE OF MAHARASHTRA v. DAMU), appears to be squarely https://hcservices.ecourts.gov.in/hcservices/ applicable and, therefore, we feel it worthwhile to quote extensivelyincluding the factual backdrop from the said decision. It wasobserved therein :-"34. After the arrest of A-3 Mukinda Thorat, he toldthe investigating officer that “Dipak’s dead body wascarried by me and Guruji (A-2) on his motorcycle and thrownin the canal”. The said statement of A-3 Mukinda Thorat wasnot found admissible in evidence as the dead body was notrecovered pursuant to the said statement. This aspectrequires more consideration. It must be pointed out thatpursuant to the said statement and the offer made by A-3Mukinda Thorat that he would point out the spot, he wastaken to the spot and there PW 44 (investigating officer)found a broken piece of glass lying on the ground. It waspicked up by him. In this context, it is important to referto another item of evidence. A motorcycle was recovered fromthe house of A-2 Guruji and its tail lamp was found brokenand one piece of it was missing. But when the broken glasspiece recovered from the spot pointed out by A-3 MukindaThorat was placed on the broken situs of the tail lamp ofthe motorcycle, it so fitted the space that PW 44, theinvestigating officer had no doubt whatsoever that the saidglass piece was originally part of the tail lamp of thatmotorcycle.35. The basic idea embedded in Section 27 of theEvidence Act is the doctrine of confirmation by subsequentevents. The doctrine is founded on the principle that if anyfact is discovered in a search made on the strength of anyinformation obtained from a prisoner, such a discovery is aguarantee that the information supplied by the prisoner istrue. The information might be confessional or non-inculpatory in nature, but if it results in discovery of afact it becomes a reliable information. Hence thelegislature permitted such information to be used asevidence by restricting the admissible portion to theminimum. It is now well settled that recovery of an objectis not discovery of a fact as envisaged in the section. Thedecision of the Privy Council in Pulukuri Kottaya v.Emperor6 is the most quoted authority for supporting theinterpretation that the “fact discovered” envisaged in thesection embraces the place from which the object wasproduced, the knowledge of the accused as to it, but theinformation given must relate distinctly to that effect.36. No doubt, the information permitted to be admittedin evidence is confined to that portion of the informationwhich “distinctly relates to the fact thereby discovered”.But the information to get admissibility need not be sotruncated as to make it insensible or incomprehensible. The https://hcservices.ecourts.gov.in/hcservices/ extent of information admitted should be consistent withunderstandability. In this case, the fact discovered by PW44 is that A-3 Mukinda Thorat had carried the dead body ofDipak to the spot on the motorcycle.37. How did the particular information lead to thediscovery of the fact? No doubt, recovery of dead body ofDipak from the same canal was antecedent to the informationwhich PW 44 obtained. If nothing more was recovered pursuantto and subsequent to obtaining the information from theaccused, there would not have been any discovery of any factat all. But when the broken glass piece was recovered fromthat spot and that piece was found to be part of the taillamp of the motorcycle of A-2 Guruji, it can safely be heldthat the investigating officer discovered the fact that A-2Guruji had carried the dead body on that particularmotorcycle up to the spot.38. In view of the said discovery of the fact, we areinclined to hold that the information supplied by A-2 Gurujithat the dead body of Dipak was carried on the motorcycle upto the particular spot is admissible in evidence. Thatinformation, therefore, proves the prosecution case to theabovementioned extent."185. Therefore, it can be said that the statement made by theaccused had led to ultimate discovery of the dead-body of Santhakumar.This can be considered as an additional link lending assurance to theprosecution case; but we must hasten to add that even if suchdiscovery under Section 27 in respect of the dead-body is eschewedfrom consideration, the other materials on record, which we havealready analysed, are sufficient to fasten the liability on theconcerned accused persons.186. P.W.1 had stated that A-6 Kasi gave a confession that if hewere taken to his colony he would identify and produce money purse ofSanthakumar containing photograph of Jeevajothi and also Rs.2,400/-and a gold chain. Thereafter A-6 took them to that place and took outthe cash, gold chain and moneypurse with photograph, which were seizedunder mahazar. 187. P.W.42, who was the Investigating Officer at that stage ofthe investigation, stated about the confession of Kasi, which has beenmarked as Ex.P-15, wherein it was stated that the accused if taken tothe residence at Gangai Apartments, the articles can be brought out.Mahazar which was prepared is Ex.P-16. Money purse with photograph ofP.W.1 had been marked as M.O.7, gold chain had been marked as M.O.9,cash was marked as M.O.14 series and the shawl was marked as M.O.17. https://hcservices.ecourts.gov.in/hcservices/

188. Laying emphasis upon the contradiction in the evidence ofP.W.1, it was contended that P.W.1 had already seen M.Os.7, 9 and 17at Kodaikanal on 02.12.2001 which would obviously contradict theprosecution case that such M.Os.7,9 and 17 were recovered on13.12.2001 on the basis of the statement of A6.189. As submitted by the learned Public Prosecutor, P.W.1was cross examined at length for quite a number of days. M.O.5 Shirt,M.O.6 Pant, M.O.7 Money purse with photograph of P.W.1 and Rs.2,400/-,M.O.8 Black coloured Belt, M.O.9 Gold Chain and M.O.17 Shawl weremarked in the Court on one day. Since all the Material Objects weremarked on one single day, overawed by the Court atmosphere, by slip oftongue, P.W.1 stated about the identification of M.Os.7, 9 and 17 atKodaikanal Police station. On the other hand, the specificsuggestion to P.W.1 was as if she had not identified M.Os.7, and 9 atKodaikanal Police Station. It is worthwhile to extract such statementof P.W.1, which runs as follows :-". . . If it is stated that I have not identified M.O.7and M.O.9 chain in the Kodaikanal police station, it is notcorrect". Obviously because P.W.1 could not have understood the implication ofthe question, she had merely denied such a suggestion, meaning therebyas if M.O.7 and M.O.9 were identified at Kodaikanal Police Station.When P.W.1 was recalled, she has rectified such mistake by statingthat she has identified M.Os.7, 9 and 17 only at Velachery Policestation. The answers elicited from P.W.1 during cross examinationwould not in any way nullify the evidentiary value of P.W.1 regardingidentification of M.Os.7, 9 and 17. Recovery of M.Os.7, 9 and 17based on the confession statement of A6 is yet another militatingcircumstance against the accused.190. In this connection, it has to be noticed that P.W.2.,who had gone with P.W.1 to the Kodaikanal Police Station and hadidentified the photographs M.Os.11, 12 and 14 as well as wearingapparels such as shirt, pant and belt (M.Os.5, 6 and 8), had neverstated that M.Os.7, 9 and 17 were also identified at Kodaikanal PoliceStation. As a matter of fact, no suggestion was made to her thatsuch M.Os.7, 9 and 17 were also available at Kodaikanal Police Stationand had been identified either by P.W.1 or by her. Similarly, nosuggestion was made to the Investigating Officers, either P.W.41 orP.W.42, that M.Os.7, 9 and 17 were already available at KodaikanalPolice Station on 2.12.2001. From these, it is apparent that thestatement of P.W.1 that she had seen M.O.7 and M.O.9 at KodaikanalPolice Station was an obvious slip of tongue, which was corrected whenshe was re-examined. After such clarification was made by P.W.1, eventhough searching cross-examination had been made, nothing had beenelicited to discard such clarification. https://hcservices.ecourts.gov.in/hcservices/ Recovery of M.Os.7, 9 and 17 at the instance of Accused No.6 canbe considered as an additional link.191. Even if for sake of argument, we do not rely upon theincriminating circumstances relating to discovery of fact on the basisof the statements leading to discovery as envisaged under Section 27of the Evidence Act, we have no doubt in our mind that the othercircumstances on record, including the statement of P.W.1., which isamply corroborated by the statement of P.W.2 as well as certaindocumentary evidence showing the presence of the accused persons indifferent places near about the scene of occurrence, clearly point outonly one conclusion that Santhakumar was killed by other accusedpersons on the basis of the instructions of Accused No.1, after whichhe was forcibly taken away by other accused persons in the vehiclebelonging to Accused No.2.192. Once conclusion of guilt of the accused is reached, theCriminal Appeal No.637 of 2004 filed by the accused persons is boundto be dismissed. However, the remaining question is relating toCriminal Appeal No.748 of 2004 filed by the State. As alreadynoticed, the trial court, even though believed the prosecution case intoto, has convicted the accused persons only under Section 304(I) IPC.For the aforesaid purpose, the trial court seems to have commentedupon P.W.1 and, more particularly P.W.2, regarding their interactionwith Accused No.1. Since it is difficult to fathom and summarize thereasons for which the trial court thought that the offence committedwould be under Section 304(I), it would be more appropriate to quotethe relevant portion of the judgment of the trial court, which is asfollows :-“In the fair analysis and assessment of things, thiscourt is of firm view and opinion that P.W.1, even afterknowing the inner mind and heart of A1, from the beginningof the episode, for the reasons best known to her, has notshown the resistance at all. If really, she was averse andagainst it, she could have why she should have nipped it atthe bud itself.Summing up, A1 was lured, an wooed, and enticed byP.W.2 and the same was not discouraged by P.W.1 at thebeginning and budding condition itself. As such, A1 cannotbe blamed or found fault with in-entirety or wholesale forhis “lust” and “craze” towards P.W.1.Moreover, it has been seen depicted and picturised byP.W.1, in her own words that on 1.10.2001 when she wasalone, in the upstairs-room of godown, A1 has told her thathe could do her whatever he liked but he would not stoopdown so cheaply. The said aspect has also been seenincorporated in a specific manner in the complaint VizEx.P.3 (at page 32). This attitude of A1 also depicts his https://hcservices.ecourts.gov.in/hcservices/ other side to a considerable extent.At such evidentiary back-drop, this court, since of theopinion, that A1 by himself alone is not solely and whollyblameworthy, the need and necessity does arise to view andweight accordingly the veracity and gravity of the offenceof murder U/s.109 r/w 302 I.P.C. to a lesser and reduceddecree as U/s.109 r/w.304(i) I.P.C. and accordinglydecided.”193. We do not think it requires much forensic knowledge or skillto hold without any hesitation that the accused persons had committedoffence under Section 302 IPC. Whether offence is punishable underSection 302 or 304 Part I or 304 Part II depends upon the materials bykeeping a distinction between Sections 299 and 300 IPC.Sections 299 and 300 of the Indian Penal Code are extractedhereunder :-"299. Culpable homicide: -- Whoever causes deathby doing an act with the intention of causing death, orwith the intention of causing such bodily injury as islikely to cause death, or with the knowledge that he islikely by such act to cause death, commits the offence ofculpable homicide.Explanation 1—A person who causes bodily injury toanother who is labouring under a disorder, disease or bodilyinfirmity, and thereby accelerates the death of that other,shall be deemed to have caused his death.Explanation 2—Where death is caused by bodily injury,the person who causes such bodily injury shall be deemed tohave caused the death, although by resorting to properremedies and skilful treatment the death might have beenprevented.Explanation 3—The causing of the death of child in themother’s womb is not homicide. But it may amount to culpablehomicide to cause the death of a living child, if any partof that child has been brought forth, though the child maynot have breathed or been completely born.300. Murder: -- Except in the cases hereinafterexcepted, culpable homicide is murder, if the act by whichthe death is caused is done with the intention of causingdeath, or—2ndly—If it is done with the intention of causing suchbodily injury as the offender knows to be likely to causethe death of the person to whom the harm is caused, or— 3rdly—If it is done with the intention of causingbodily injury to any person and the bodily injury intended https://hcservices.ecourts.gov.in/hcservices/ to be inflicted is sufficient in the ordinary course ofnature to cause death, or—4thly—If the person committing the act knows that it isso imminently dangerous that it must, in all probability,cause death or such bodily injury as is likely to causedeath, and commits such act without any excuse for incurringthe risk of causing death or such injury as aforesaid.Exception I—When culpable homicide is not murder—Culpable homicide is not murder if the offender, whilstdeprived of the power of self-control by grave and suddenprovocation, causes the death of the person who gave theprovocation or causes the death of any other person bymistake or accident. The above exception is subject to the following provisos:--First—That the provocations not sought or voluntarilyprovoked by the offender as an excuse for killing or doingharm to any person.Secondly—That the provocation is not given by anythingdone in obedience to the law, or by a public servant in thelawful exercise of the powers of such public servant.Thirdly—That the provocations not given by anythingdone in the lawful exercise of the right of private defence.Explanation—Whether the provocation was grave andsudden enough to prevent the offence from amounting tomurder is a question of fact."194. It is no doubt true that there is no specific materialavailable as to which of the accused persons actually caused the deathof Santhakumar by strangulation. However, the intention of theaccused persons to cause homicidal death is apparent. Since the deathwas caused with the intention of causing death, such culpable homicideas defined under Section 299 would amount to murder as it does notcome within any of the exceptions indicated in Section 300. There isno question of any grave and sudden provocation as contemplated underException-1. Similarly there is no question of exercise of right ofprivate defence as contemplated in Exception-2 nor it can be said thatthe offence was committed with premeditation in a sudden fight in theheat of passion upon a sudden quarrel as contemplated in Exception-4.Since none of the exceptions can be applied, there is no otheralternative than to come to the conclusion that the offence ispunishable under Section 302 IPC. 195. The trial court convicted A1 and A7 guilty under Sec.109r/w.304 (I) IPC and A2, A3, A4 and A6 under Sec.304 (I) IPC. In acase mainly based upon circumstantial evidence once guilt of theaccused is established, there cannot be any escape from theconclusion that if the prosecution case on record is found to be https://hcservices.ecourts.gov.in/hcservices/ proved, how such offence under Sec.302 IPC can be treated as Sec.304(I) IPC. If the act of the accused falls within any one of theClauses (i) to (iv) of Sec.300 IPC, but is covered by any of the fiveExceptions, it will be punishable under Sec.304 (I) IPC. If the actcomes under Clause (iv) of Sec.300 IPC, but is covered by any of theExceptions, it will be punishable under second part. First part ofSec.300 IPC applies where there is guilty intention and second partapplies where there is no such intention, but there is guiltyknowledge. Act of the accused is not covered by any of the fiveExceptions. While so, conviction under Sec.304 (I) IPC is notappropriate. Therefore, the appeal filed by the State Government isbound to be allowed and the accused [A1, A2, A3, A4, A6 and A7] mustbe held to be guilty under Sec.302 IPC in addition to the otheroffences as found by the trial court. Once they are found guilty under Section 302, the sentence whichcan be imposed is either death sentence or life imprisonment. In thepresent case, apart from the fact that the trial court had convictedthem of a lesser offence and such order is upturned in appeal, itcannot be said that the manner in which the offence committed israrest or rare type justifying the imposition of death sentence.Accordingly, it is directed that all such accused persons found guiltyunder Section 302 IPC shall undergo imprisonment for life. Inrespect of other offences, the trial court has imposed varioussentences as well as fine. We do not find any justification inimposing huge fine on Accused No.1.196. In the result, the appeal preferred by the StateGovernment [C.A.No.748/2004] is allowed and the appeal preferred bythe accused [C.A.No.637/2004] is dismissed.●A1, A2 to A4, A6 and A7 are convicted under Sec.302 IPC andthey are sentenced to undergo life imprisonment.●Fine of Rs.30 Lakhs imposed upon A1 for the conviction underSec.109 r/w.304 (I) IPC and fine of Rs.30,000/- imposed uponA2 for the conviction under Sec.304 (I) IPC is set aside.●For the conviction under Sec.302 IPC, fine of Rs.15,000/- eachis imposed upon A1, A2, A3, A4, A6 and A7, in default toundergo RI for 3 months. ●Conviction and sentence of RI for 3 years imposed upon A1, A5,A8 and A9 under Sec.109 r/w.364 IPC and conviction andsentence of RI for 3 years imposed upon A2 to A4, A6 and A7under Sec.364 IPC is confirmed.●Fine of Rs.20 lakhs imposed upon A1 for the conviction underSec.109 r/w.364 IPC and fine of Rs.15,000/- imposed upon A2for the conviction under Sec.364 IPC is reduced toRs.10,000/- each, in default to undergo RI for 3 months. ●Fine of Rs.10,000/- each imposed upon A3, A4, A6 & A7 for theconviction under Sec.364 IPC is confirmed,in default to https://hcservices.ecourts.gov.in/hcservices/ undergo RI for 3 months, in default to undergo RI for 3months.●Fine of Rs.5,000/- each imposed upon A5, A8 & A9 for theconviction under Sec.109 r/w.364 IPC is also confirmed, indefault to undergo RI for 3 months. ●Conviction and sentence of RI for 2 years imposed upon A1under Sec.109 r/w.201 IPC and A2 to A4, A6 & A7 under Sec.201IPC is confirmed. ●Fine of Rs.5 Lakhs imposed upon A1 for the conviction underSec.109 r/w.201 IPC is reduced to Rs.5000/-, in default toundergo RI for 3 months. ●Fine of Rs.5,000/- each imposed upon A2, A3, A4, A6 & A7 forthe conviction under Sec.201 IPC is confirmed, in default toundergo RI for 3 months. ●Direction for payment of compensation to P.W.1 is set aside.●The order of the trial court directing the sentences to runconcurrently shall hold good.●The Additional Sessions Judge shall take steps to secure thepresence of the accused and commit them to prison to undergothe period of sentence imposed.●Bail bond of all the accused persons has been discharged.Consequently, M.P.No.164 of 2008 is closed.197. As we have already indicated, the incident in this caseis only a sequel to the incident dated 1.10.2001, which is the subjectmatter of the decision in Crl.A.Nos.668 and 669 of 2004. ThoseCriminal Appeals have been dismissed by a separate judgment pronouncedtoday. Since the incident in the present case is only a sequel to theearlier incident and sentences of imprisonment have been imposed inboth the matters, we deem it appropriate in exercise of power underSection 482 Cr.P.C., to direct that the substantive sentences imposedin Crl.A.Nos.668 and 669 of 2004 shall run concurrently along with thesubstantive sentences imposed in Crl.A.Nos.637 and 748 of 2004. dpkSd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To1.The Additional Sessions Judge, Chennai at Poonamallee2.Do Through Prl Sessions Judge, City Civil Court, Chennai.3.The Public Prosecutor,High Court, Madras.4.The Inspector of Police,(Law and Order),J-7 Velachery Police Station,Chennai 42.5.The IX Metropolitan Magistrate,Saidapet, Chennai 15.6.Do Through the Chief Metropolitan Magistrate, Egmore, Chennai 8.7.The District Collector,Chennai.8.The Director General of Police,Santhome, Chennai 4.9.The Superintendent,Central Prision, Puzhal,Chennai.•2 ccs to the Mr. T. Vijayaraghavan, Advocate SR No.8523•1 ccs to the Public Prosecutor, High Court, Madras.SCD(CO)SR/19.3.2009COMMON JUDGMENT INCRL.A.NOs.637 & 748/2004