1.Amirtharaj Vs. State Rep. by Inspector of Police, - Court Judgment

SooperKanoon Citationsooperkanoon.com/1167303
CourtChennai High Court
Decided OnJul-31-2013
JudgeS.RAJESWARAN
Appellant1.Amirtharaj
RespondentState Rep. by Inspector of Police,
Excerpt:
before the madurai bench of madras high court dated:31/07/2013 coram the honourable mr.justice s.rajeswaran and the honourable mr.justice t.mathivanan criminal appeal (md) no.146 of 2008 1.amirtharaj 2.raja mohammed ... appellants vs state rep. by inspector of police, maraneri police station, virudhunagar district. in crime no.69 of 2004 ... respondent prayer appeal is filed under section 374 of the code of criminal procedure, against the judgment dated 21.02.2008 made in s.c.no.34 of 2005, on the file of the learned principal sessions judge, virudhunagar district at srivilliputtur. !for appellant ... mr.s.ashok kumar senior counsel for k.j.associates ^for respondent ... mr.r.ramachandran additional public prosecutor :judgment (judgment of the court was made by s.rajeswaran, j.) this memorandum of criminal appeal is directed against the judgment dated 21.02.2008, made in the sessions case in s.c.no.34 of 2005, on the file of the learned principal sessions judge, virudhunagar district at srivilliputturi.2. the trial court found the first appellant/first accused guilty under sections 302, 392 r/w 397 and 201 i.p.c., and convicted and sentenced him to undergo life imprisonment with a fine of rs.1,000/- for the offence under section 302 i.p.c. with default sentence and sentenced him to under go seven years rigorous imprisonment and to pay a fine of rs.1,000/- for the offence under section 392 r/w 397 i.p.c. with default clause and sentenced him to under go three years rigorous imprisonment and to pay a fine of rs.500/- for the offence under under section 201 i.p.c. with default sentence. the second appellant/ second accused was found guilty under sections 302 read with 114, 392 read with 397 and 201 i.p.c. and sentenced him to undergo life imprisonment with a fine of rs.1,000/- for the offence under sections 302 r/w 114 i.p.c. with default sentence and sentencing him to undergo seven years rigorous imprisonment with a fine of rs.1,000/- for the offence under section 392 r/w 397 i.p.c. and sentenced to undergo three years rigorous imprisonment with a fine of rs.500/- for the offence under section 201 i.p.c. with default sentence.3. the entire case of the prosecution hinges only on circumstantial evidence. p.w.1/village administrative officer, sivakasi on information found a fully burnt dead body on the southern side of a bridge in sivakasi - vilampatti road near patthukal mandapam on 29.03.2004 at about 12.30 p.m. he lodged a complaint (ex.p.1) before the sub inspector of police, maraneri police station and the same was registered in crime no.69 of 2004 under section 174 cr.p.c. on 29.03.2004 at about 1.30 p.m.4. on 29.03.2004 at about 2.50 p.m., the inspector of police, sivakasi taluk police station proceeded to the place of occurrence and prepared a rough sketch (ex.p.39) and an observation mahazar (ex.p.2) in the presence of p.w.1 and one ganapathi. the investigating officer/p.w.20 has also recovered broken scissor (m.o.1), one litre plastic can with petrol smell (m.o.2), bunch of hair with hair clip and a portion of burnt gunny bag (m.o.3), a portion of burnt red and yellow colour chudithar with flower design (m.o.4) and 15 cm length of rope (m.o.5). then the investigating officer p.w.20 conducted inquest between 3.00 p.m. and 5 p.m. and made request for postmortem. due to the condition of the body, postmortem was conducted by p.w.5 in the place where the burnt dead body was found. on the opinion of the doctor, p.w.20 altered the f.i.r. from 174 cr.p.c. to 302 i.p.c.5. the postmortem doctor p.w.5 conducted postmortem on 29.03.2004 at 5.00 p.m. and noticed deep charred burns all over the body. scalp hair burnt, only 3". hair present in few areas. p.w.5 preserved the hyoid bone, skull, pelvis bone, right femur, blood, vaginal swab, stomach with parts of intestines, part of liver and kidney. p.w.5 gave his opinion after obtaining opinion of viscera and other chemical analysis report on 22.07.2004 that the deceased appears to have died of diazepam poisoning.6. poison diazepam was detected from stomach, intestines, liver and kidney as per viscera report dated 21.04.2004. the district police surgeon, department of forensic medicine of madurai medical college hospital in his report dated 05.05.2004 (ex.p.28) has stated that hyoid bone is in tact. the femur and pelvic bone appears to be human in origin and appears to be female aged 18 to 20 years.7. p.w.4 ravi lodged a complaint before the sivakasi east police station on 30.03.2004 that his daughter brigit ahila mary, who went on 28.03.2004 in a bicycle did not return home. the sivakasi east police took him to sivakasi taluk police station on the information that an unknown burnt dead body was recovered in their jurisdiction. p.w.4 identified her cloth (m.o.4) and hair clip (m.o.3) recovered from that burnt dead body on 29.03.2004 as belong to his daughter. his wife and another daughter have also identified that those m.os. as belong to their daughter brigit ahila mary. p.w.4 suspected the accused on the ground that his daughter often visiting the second accused tailoring shop, namely baby tailoring shop at p.s.r. road, sivakasi town.8. p.w.20, the investigating officer arrested the accused on 31.03.2004 at about 10.00 a.m. from a tea stall near carnation colony bus stand in sivakasi in the presence of p.w.1, village administrative officer and one ganapathy. confessional statements were also recorded from the accused at about 10.00 a.m. and 11.00 a.m. pursuant to the confessional statements, the investigating officer went to the baby tailoring shop of the second accused at p.s.r. road, sivakasi town on 31.03.2004 at 12.30 p.m. and prepared a sketch (ex.p.40) and the observation mahazar (ex.p.41). he also recovered m.o.nos.6, 7 and 8 under a mahazar ex.p.5. the investigating officer had also recovered jewels m.os.9 to 15 through accused no.2 from a pumb set near a2's sister shanthi's house at n.g.o. colony, sachiapuram (ex.p.7).9. a four wheel cart (m.o.17) was also recovered through accused from p.w.13. the deceased's bicycle (m.o.18) was recovered through the accused under a mahazar ex.p.9 from olympic theatre cycle stand. the investigating officer had examined p.w.4 and his wife paraloga mary on 01.04.2004 and recorded their statements. he has also examined p.w.s.9 to 14 and three others on 02.04.2004. the investigating officer/p.w.20 sent the hyoid bones and other preserved parts from the burnt dead body to the department of forensic science through the judicial magistrate, sivakasi. he also sent the skull recovered from the burnt dead body to the director of forensic department, along with the photograph of brigit akila mary for superimposition test. the investigating officer, p.w.20 had also made request for d.n.a. test.10. p.w.21 continued further investigation from 22.07.2004, since p.w.20 went on medical leave. p.w.21 examined p.ws.5, 18 and 19 and head constables rajagopal and soundirapandian and recorded their statements. he concluded the investigation and filed the final report ex.p.42 against the accused on 30.07.2004 for offences punishable under sections 302 read with 114, 392 read with 397 and 201 i.p.c.11. the principal sessions judge, virudhunagar district at srivilliputhur had taken the trial after committal and framed charges under sections 302, 392 read with 397 and 201 i.p.c. as against a.1 and under sections 302 read with 114, 392 read with 397 and 201 i.p.c. as against a.2.12. 23 witnesses were examined and 41 exhibits were marked on behalf of the prosecution. 21 material objects were also produced before the trial court during trial.13. when the incriminating circumstances, arising out of the testimonies of the prosecution witnesses, were put to the appellants/accused during the course of proceedings under section 313(i)(b) cr.p.c. so as to enable them to explain, they had replied that this case was foisted against them. the accused denied the case of the prosecution and mentioned one veni w/o. raja mohammed and subramani s/o. gopal as their witnesses in their statements given under section 313 cr.p.c., but they have not been examined as witnesses.14. in conclusion of the trial, both the accused were found guilty of the offences charged against them.15. having been aggrieved by the impugned judgment of conviction and sentence dated 21.02.2008, as afore stated the appellants/accused now stand before this court.16. heard mr.s.ashok kumar, learned senior counsel appearing for the appellants/accused and mr.r.ramachandran, learned additional public prosecutor appearing for the respondent police. the evidence of the witnesses and the exhibits were also perused.17. there is no eye-witness for the occurrence and the prosecution relied on the circumstantial evidences to substantiate their case. according to the learned senior counsel appearing for the appellants, the circumstances are not clinching and they do not complete the chain of events fixing the guilty of the accused. the learned senior counsel pointed out the following discrepancies in the prosecution case: according to the prosecution, the deceased was strangled to death with m.o.8, cycle chain, but according to the doctor, the death was due to poisoning. there was no mark on the neck of the dead body to suggest strangulation. he has also pointed out from the forensic report that the hyoid bone was in tact. he further contended that the witnesses were picked up and tutored after getting the opinion of doctor p.w.5. the learned senior counsel pointed out the discrepancies in the evidence of p.w.7 and contended the last seen theory was also failed in this case, as p.w.7 does not speak about the presence of p.w.10 in his evidence. he also contended that the material contradictions in the recovery of miranda bottles and deceased went to attend sujatha's birthday party she went are all fetal to the prosecution. in support of his contention, he relied on the judgment of this court reported in 2013 (1) mwn (cr.) 331 (db) (balu @ balamurugan v. state).18. per contra, the leaned additional public prosecutor appearing for the state would contend that the deceased was last seen in the second accused's shop on 28.03.2004 and she was recovered dead with burn injuries on the next day. p.w.4 father of the deceased had identified the cloth and hair clip recovered from the dead body and the d.n.a. test and superimposition test had proved that the deceased is the daughter of p.w.4.19. the accused were arrested and jewels of the deceased were recovered through their confessional statements. p.w.4 in his evidence has stated that the accused had already demanded the jewels of the deceased for their business development. he also relied on the evidence of p.ws.7 and 10 as they are independent and natural witnesses. p.w.7 had last seen the deceased going to the accused shop on 28.03.2004 at about 6.00 p.m. the recovery of jewels are not disputed. he contended that the circumstances are cogent and connecting the guilt of the accused.20. we have considered the rival submissions carefully with regard to the facts and citations. we have also gone through the evidence on record.21. the village administration officer, p.w.1 on information found the dead body on the southern side of a bridge in sivakasu - vilampatti road near patthukallu mandapam on 29.03.2004 at about 12.30 p.m. and lodged a complaint ex.p.1 before the jurisdictional police station. the dead body was fully burnt and the identification was not fully known. the dead body was in such a condition that it could not be taken to the hospital for postmortem and the postmortem was therefore conducted in the place in which the body was recovered. p.w.5, the doctor, who conducted the postmortem gave his opinion on 22.07.2004 in ex.p.13, after obtaining the chemical analysis report and viscera report that the deceased appears to have died due to diazepam poisoning. the viscera report dated 21.04.2004, discloses the presence of diazepam in the stomach, intestine, liver and kidney.22. the investigating officer had recovered broken scissor, one liter plastic bottle with petrol smell, a bunch of hair with hair clip, portion of red and yellow colour sudithar with flower design, portion of burnt gunny bag and burnt rope from the place where the body was recovered. the scientific assistant, forensic department, chennai in his report dated 20.05.2005 (ex.p.25) mentioned the presence of petrol in m.o.2. condition of the dead body, petrol can, the gunny bag, the burnt rope disclose it is a homicide.23. the body was fully burnt. however, p.w.4 identified the dead body through cloth m.o.4, hair clip m.o.3 recovered from the dead body that they belong to his deceased daughter brigit akila mary. it was also confirmed by his wife and another daughter. the evidence of p.w.4 discloses that the deceased brigit akila mary and a2's wife sujatha were classmates and the deceased often visited their tailoring shop. his evidence was corroborated by the evidence of p.w.7 and p.w.10.24. the deceased left the house on 28.03.2004 in a bicycle around 5.00 p.m. to meet a2's wife sujatha on account of her birth day. p.w.7, a petty shop owner having a shop adjacent to the second accused's tailoring shop had witnessed the deceased going inside the tailoring shop on 28.03.2004 at about 6.00 p.m. according to p.w.7, the deceased came in a bicycle and was wearing red colour chudithar with yellow flower design. a.1 had purchased three mini miranda bottles, from his shop around 7.00 p.m and around 7.30 p.m. brought a four wheel cart and taken a gunny bag in that cart.25. the accused were arrested by p.w.20 on 31.03.2004 at about 10.00 a.m. from a tea stall in sivakasi carnation colony bus stop in the presence of p.w.1. the accused gave a confessional statement and pursuant to the same p.w.20 recovered a cycle chain covered with cloth, three miranda bottles, sudithar jacket, sign board from the accused shop. the investigating officer p.w.20 had also recovered jewels m.os.9 to 15 from a pump set room near a.2's sister's house. a four wheel cart was recovered from the cycle shop of p.w.13 at the instance of the accused. an atlas cycle (m.o.18) was recovered from olympic theatre cycle stand in a mahazar ex.p.9. a strip of valium tablet was recovered from the medical shop of p.w.15. the skull and the bones were collected and vaginal swab taken from the dead body were sent for chemical analysis.26. the district police surgeon, department of forensic medicine, madurai medical college, madurai vide his report dated 05.05.2004 in ex.p.28 gave a report that hyoid bone is in tact. on examination of other bones, he gave an opinion that the femur, pelvic bones and the sacrum appears to be human origin, female, aged about 18 - 20 years and appears to be belonging to one and the same individual. on examination of the vaginal swab, the assistant chemical examiner, regional forensic lab in his report dated 29.04.2004, gave his opinion that there was no semen detected. the d.n.a. test was conducted with the recovered bone from the deceased and by taking blood samples from the parents of the deceased. the assistant chemical examiner/assistant director forensic department vide his report dated 31.12.2004 (ex.p.31) opined that (i) the bones in item 1 and 2 described above belong to a human female individual. (ii) the person brijid akila mary to whom the bones in items 1 and 2 described above is the biological offspring of mr.d.ravi and ms.r.paralogamary.27. the skull recovered from the deceased was also subjected to superimposition test. the additional director of chennai forensic department p.w.23 had stated that the skull coincide with the photograph of brigit akila mary. the superimposition test is also marked as ex.p.34.28. from the available evidence, the body recovered on 29.03.2004 on the southern side of the bridge in sivakasi - vilampatti road is of brigit akila mary. the deceased appeared to have died due to poisoning. but she was recovered in a burnt condition on the southern side of the bridge. along with the dead body a half burnt gunny bag, rope and bottle with petrol smell were recovered. on chemical examination of m.o.2, the presence of petrol was detected. from these above materials it is evident that it is a case of homicide and not a case of suicide. the deceased was identified as daughter of p.w.4 from the dress and hair clip recovered from the dead body, d.n.a. test and superimposition test.29. the deceased brigit akila mary was a classmate of sujatha @ veni, wife of a.2/raja mohammed. the deceased left the house on account of birth day celebration of sujatha. the said sujatha was curiously not examined by the prosecution. it is in fact a material defect on the part of the prosecution. however, the case of prosecution that the deceased and sujatha were classmates was not denied by the accused. on the other hand, a suggestion was put to p.w.4 that the deceased had love affair with one joseph, son of george and the accused had suppressed their affair and on that enmity p.w.4 is giving evidence against them. thus, a.1 had admitted his acquaintance with the deceased and she was last seen in the tailoring shop by p.w.7. moreover, the accused have referred the said sujatha @ veni, wife a.2 as their witnesses when they were examined under section 313 of cr.p.c. but failed to examine her as witness.30. p.w.7 is a neighbour to accused tailoring shop. p.w.7 and the accused came as tenant of p.w.10. p.w.7 is running a petty shop and would be available from 7.30 a.m. to 11.00 p.m. therefore, he is a material witness and also independent witness in this case. according to p.w.7, the deceased often visited the second accused's tailoring shop and went to accused tailoring shop on 28.03.2004 at about 6.00 p.m. in a bicycle and parked the bicycle in front of the shop and went inside. after some time, a.1 came and purchased three mini miranda bottles from his shop. at about 7.30 p.m. a.1 brought a four wheel cart and parked it in front of the shop. after some time, both the accused brought the gunny bag from the tailoring shop and kept the same in the cart. when p.w.7 enquired about the gunny bag, the second accused replied it was waste cloth bundle. a.2 took the cart on the eastern side and a.1 followed the same in the cycle. p.w.7, who had noted the deceased entering into the accused tailoring shop and had stated that he has not seen the deceased coming out of the shop. these evidences were also cross-examined on the same day. p.w.7 was examined on 20.12.2005 and he was also cross-examined on the same day. p.w.7 was also called again on 03.08.2007 and he was cross-examined. in the evidence dated 03.08.2007, he has stated that he has referred only a girl with lean body aged about 20 - 22 years came in a bicycle on 28.03.2004 at 6.00 p.m. and was wearing yellow red colour sudithar with flower designs. he denied that he has not stated before the police that the deceased used to come often to the tailoring shop and said lean girl is the deceased.31. the learned senior counsel had also pointed out that p.w.7 has stated that he has not spoken about p.w.10 and the accused had returned the miranda bottles immediately, whereas according to the investigating officer the three miranda bottles were recovered on the admission made by the accused shop on 31.03.2004. the photograph of the deceased was not at all shown to p.w.7. therefore, it cannot be fixed that it is only the deceased brigit akila mary came to a.2's shop, on 28.03.2004 at 6.00 p.m.32. as we have already stated, p.w.7 is a natural witness and also an independent witness, he is a neighbor of accused and there is no reason for him to speak against the accused. p.w.7 had specifically stated in his evidence that on 28.03.2004, at about 6.00 p.m. the deceased came to second accused's tailoring shop in bicycle. p.w.7 had witnessed the accused bringing four wheel cart and taking out a gunny bag on 28.03.2004. this evidence is corroborated by the evidence of p.w.10 and p.w.13. p.w.10, the house owner of the accused. p.w.7 had informed the accused taking a gunny bag in the four wheel cart at 7.00 p.m. the presence of p.w.10 was not stated by p.w.7 in his evidence. p.w.10 was not present at 6.00 p.m. when the deceased entered into the shop of the accused. he joined p.w.7 at 7.30 p.m. when the accused taken out four wheel cart. p.w.7, who described the incident from 6.00 p.m. had omitted the presence of p.w.10 at 7.30 p.m. and it cannot be material defect to disbelieve both p.w.7 and p.w.10, who are natural witnesses and also independent witnesses and their evidence cannot be thrown out at this minor contradiction.33. the hiring of four wheel cart by the accused on 28.03.2004 was re- established by recovering m.o.17 and ex.p.35. p.w.13 had identified a.1 that he had only hired the four wheel cart from his cycle shop on 28.03.2004 and the same was entered in the register (ex.p.35). the evidence of p.w.13 would corroborate the evidence of p.w.7 and p.w.10.34. p.w.4, father of the deceased stated in his evidence that the deceased and second accused's wife sujatha were classmates. his daughter often used to go to his shop. this evidence of p.w.4 also corroborates the evidence of p.w.7 that the deceased often visited the second accused's tailoring shop. p.w.7 has also stated that when the deceased girl came to the tailoring shop on 28.03.2004, she was wearing red and yellow color sudithar with flower design and that was emphasized again in his evidence on 03.08.2007. the red and yellow colour dress was recovered from the dead body and the same was marked as m.o.4. the parents of the deceased have identified their daughter's things and the hair clip (m.o.3). while so, there is no reason to disbelieve the evidence of p.w.7.35. regarding the recovery of miranda bottles from the accused shop on 31.03.2004 and the evidence of p.w.7 that miranda bottles were returned by the accused on the same day. the miranda bottles have not been sent for chemical analysis. since some bottles of miranda were recovered on 31.03.2004 from the accused shop, it cannot be a ground to disbelieve the evidence of p.w.7.36. the cycle of the deceased also was recovered from a cycle stand at the instance of the accused and marked as m.o.18. the accused gave a confessional statement that they administered valium-10 tablet to the deceased and through their confessional statements a strip of valium-10 tablet was recovered from the medical shop belonging to p.w.15. the recovered valium-10 tablet was sent for chemical analysis on 21.04.2004. the scientific assistant who examined the viscera on 21.05.2004 (ex.p.37) reported that diazepam was detected from the stomach, intestine, liver and kidney. they have also examined valium-10 tablets recovered from p.w.15 and reported that diazepam was detected from those tablets. the valium-10 tablets were recovered from p.w.15 in mahazar ex.p.10 on 20.04.2004, pursuant to the confession statements of the accused. though p.w.15 turned hostile, the chemical analysis report discloses that the chemical diazepam detected in the valium tablets was also detected from the stomach, liver, intestine and kidney of the deceased.35. p.w.4 in his evidence had stated that the accused had demanded the jewels of the deceased for their business development, even two years prior to the occurrence. the deceased informed p.w.4 and p.w.4 objected to it that the same was required for her marriage. this was not denied by the accused. the jewels of the deceased were recovered from the pump set near a.2's sister house at the instance of the accused. the deceased was last seen in the accused tailoring shop by p.w.7. cycle of the deceased was recovered in olympic cycle stand at the instance of the accused. the accused had hired a four wheel cart on 28.03.2004 at about 7.00 p.m. from p.w.13 and the register for the same is recovered and marked by the prosecution. the accused had taken the gunny back in the four wheel cart on 28.03.2004 at 7.30 p.m. and the same was witnessed by p.w.7 and p.w.10. along with the dead body, a half burnt gunny bag and rope were recovered. the chemical in the valium 10 tablets recovered at the instance of the accused is tallying with the chemical present in the stomach, intestine, liver and kidney of the deceased. all these circumstances form a link as a chain of events and would constitute the guilt of the accused.36. the judgement relied on by the learned senior counsel is not applicable to the facts of the present case, wherein the prosecution case was on the recovery of jewels alone, whereas in the case on hand there are other linking evidence other than recovery.37. in the light of foregoing, the conviction and sentence imposed by the trial court is confirmed and the appeal is dismissed. the bail bonds executed by the accused stand cancelled. the respondent police is hereby directed to take steps to secure the accused in order to undergo the remaining period of sentence. sj to 1.the inspector of police, maraneri police station, virudhunagar district. 2.the additional public prosecutor, madurai bench of madras high court, madurai.
Judgment:

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:31/07/2013 CORAM THE HONOURABLE MR.JUSTICE S.RAJESWARAN AND THE HONOURABLE MR.JUSTICE T.MATHIVANAN Criminal Appeal (MD) No.146 of 2008 1.Amirtharaj 2.Raja Mohammed ... Appellants Vs State rep. by Inspector of Police, Maraneri Police Station, Virudhunagar District. In Crime No.69 of 2004 ... Respondent Prayer Appeal is filed under Section 374 of the Code of Criminal Procedure, against the Judgment dated 21.02.2008 made in S.C.No.34 of 2005, on the file of the learned Principal Sessions Judge, Virudhunagar District at Srivilliputtur. !For Appellant ... Mr.S.Ashok Kumar Senior Counsel for K.J.

Associates ^For Respondent ... Mr.R.Ramachandran Additional Public Prosecutor :JUDGMENT

(Judgment of the Court was made by S.RAJESWARAN, J.) This memorandum of criminal appeal is directed against the Judgment dated 21.02.2008, made in the Sessions Case in S.C.No.34 of 2005, on the file of the learned Principal Sessions Judge, Virudhunagar District at Srivilliputturi.

2. The trial Court found the first appellant/first accused guilty under Sections 302, 392 r/w 397 and 201 I.P.C., and convicted and sentenced him to undergo life imprisonment with a fine of Rs.1,000/- for the offence under Section 302 I.P.C. with default sentence and sentenced him to under go seven years Rigorous Imprisonment and to pay a fine of Rs.1,000/- for the offence under Section 392 r/w 397 I.P.C. with default clause and sentenced him to under go three years Rigorous Imprisonment and to pay a fine of Rs.500/- for the offence under under Section 201 I.P.C. with default sentence. The second appellant/ second accused was found guilty under Sections 302 read with 114, 392 read with 397 and 201 I.P.C. and sentenced him to undergo life imprisonment with a fine of Rs.1,000/- for the offence under Sections 302 r/w 114 I.P.C. with default sentence and sentencing him to undergo seven years Rigorous Imprisonment with a fine of Rs.1,000/- for the offence under Section 392 r/w 397 I.P.C. and sentenced to undergo three years Rigorous Imprisonment with a fine of Rs.500/- for the offence under Section 201 I.P.C. with default sentence.

3. The entire case of the prosecution hinges only on circumstantial evidence. P.W.1/Village Administrative Officer, Sivakasi on information found a fully burnt dead body on the southern side of a bridge in Sivakasi - Vilampatti Road near Patthukal Mandapam on 29.03.2004 at about 12.30 p.m. He lodged a complaint (Ex.P.1) before the Sub Inspector of Police, Maraneri Police station and the same was registered in Crime No.69 of 2004 under Section 174 Cr.P.C. on 29.03.2004 at about 1.30 p.m.

4. On 29.03.2004 at about 2.50 p.m., the Inspector of Police, Sivakasi Taluk Police Station proceeded to the place of occurrence and prepared a Rough Sketch (Ex.P.39) and an Observation Mahazar (Ex.P.2) in the presence of P.W.1 and one Ganapathi. The Investigating Officer/P.W.20 has also recovered broken Scissor (M.O.1), one litre plastic can with petrol smell (M.O.2), bunch of hair with hair clip and a portion of burnt gunny bag (M.O.3), a portion of burnt red and yellow colour Chudithar with flower design (M.O.4) and 15 cm length of rope (M.O.5). Then the Investigating Officer P.W.20 conducted inquest between 3.00 p.m. and 5 p.m. and made request for postmortem. Due to the condition of the body, postmortem was conducted by P.W.5 in the place where the burnt dead body was found. On the opinion of the doctor, P.W.20 altered the F.I.R. from 174 Cr.P.C. to 302 I.P.C.

5. The postmortem doctor P.W.5 conducted postmortem on 29.03.2004 at 5.00 p.m. and noticed deep charred burns all over the body. Scalp hair burnt, only 3". hair present in few areas. P.W.5 preserved the Hyoid bone, skull, Pelvis bone, right femur, blood, vaginal swab, stomach with parts of intestines, part of liver and kidney. P.W.5 gave his opinion after obtaining opinion of viscera and other chemical analysis report on 22.07.2004 that the deceased appears to have died of diazepam poisoning.

6. Poison diazepam was detected from stomach, Intestines, liver and Kidney as per Viscera Report dated 21.04.2004. The District Police Surgeon, Department of Forensic Medicine of Madurai Medical College Hospital in his report dated 05.05.2004 (Ex.P.28) has stated that Hyoid Bone is in tact. The femur and pelvic bone appears to be Human in origin and appears to be female aged 18 to 20 years.

7. P.W.4 Ravi lodged a complaint before the Sivakasi East Police Station on 30.03.2004 that his daughter Brigit Ahila Mary, who went on 28.03.2004 in a bicycle did not return home. The Sivakasi East Police took him to Sivakasi Taluk Police Station on the information that an unknown burnt dead body was recovered in their jurisdiction. P.W.4 identified her cloth (M.O.4) and hair clip (M.O.3) recovered from that burnt dead body on 29.03.2004 as belong to his daughter. His wife and another daughter have also identified that those M.Os. as belong to their daughter Brigit Ahila Mary. P.W.4 suspected the accused on the ground that his daughter often visiting the second accused tailoring shop, namely Baby Tailoring Shop at P.S.R. Road, Sivakasi Town.

8. P.W.20, the investigating Officer arrested the accused on 31.03.2004 at about 10.00 a.m. from a tea stall near Carnation Colony Bus Stand in Sivakasi in the presence of P.W.1, Village Administrative Officer and one Ganapathy. Confessional statements were also recorded from the accused at about 10.00 a.m. and 11.00 a.m. Pursuant to the confessional statements, the investigating officer went to the Baby Tailoring Shop of the second accused at P.S.R. Road, Sivakasi Town on 31.03.2004 at 12.30 p.m. and prepared a sketch (Ex.P.40) and the Observation Mahazar (Ex.P.41). He also recovered M.O.Nos.6, 7 and 8 under a Mahazar Ex.P.5. The Investigating Officer had also recovered jewels M.Os.9 to 15 through accused No.2 from a pumb set near A2's sister Shanthi's house at N.G.O. Colony, Sachiapuram (Ex.P.7).

9. A four wheel cart (M.O.17) was also recovered through accused from P.W.13. The deceased's bicycle (M.O.18) was recovered through the accused under a mahazar Ex.P.9 from Olympic Theatre Cycle Stand. The Investigating Officer had examined P.W.4 and his wife Paraloga Mary on 01.04.2004 and recorded their statements. He has also examined P.W.s.9 to 14 and three others on 02.04.2004. The Investigating Officer/P.W.20 sent the Hyoid bones and other preserved parts from the burnt dead body to the Department of Forensic Science through the Judicial Magistrate, Sivakasi. He also sent the skull recovered from the burnt dead body to the Director of Forensic Department, along with the photograph of Brigit Akila Mary for superimposition test. The investigating Officer, P.W.20 had also made request for D.N.A. Test.

10. P.W.21 continued further investigation from 22.07.2004, since P.W.20 went on medical leave. P.W.21 examined P.Ws.5, 18 and 19 and Head Constables Rajagopal and Soundirapandian and recorded their statements. He concluded the investigation and filed the final report Ex.P.42 against the accused on 30.07.2004 for offences punishable under Sections 302 read with 114, 392 read with 397 and 201 I.P.C.

11. The Principal Sessions Judge, Virudhunagar District at Srivilliputhur had taken the trial after committal and framed charges under Sections 302, 392 read with 397 and 201 I.P.C. as against A.1 and under Sections 302 read with 114, 392 read with 397 and 201 I.P.C. as against A.2.

12. 23 witnesses were examined and 41 exhibits were marked on behalf of the prosecution. 21 Material Objects were also produced before the trial Court during trial.

13. When the incriminating circumstances, arising out of the testimonies of the prosecution witnesses, were put to the appellants/accused during the course of proceedings under Section 313(i)(b) Cr.P.C. so as to enable them to explain, they had replied that this case was foisted against them. The accused denied the case of the prosecution and mentioned one Veni W/o. Raja Mohammed and Subramani S/o. Gopal as their witnesses in their statements given under Section 313 Cr.P.C., but they have not been examined as witnesses.

14. In conclusion of the trial, both the accused were found guilty of the offences charged against them.

15. Having been aggrieved by the impugned Judgment of conviction and sentence dated 21.02.2008, as afore stated the appellants/accused now stand before this Court.

16. Heard Mr.S.Ashok Kumar, learned Senior Counsel appearing for the appellants/accused and Mr.R.Ramachandran, learned Additional Public Prosecutor appearing for the respondent Police. The evidence of the witnesses and the exhibits were also perused.

17. There is no eye-witness for the occurrence and the prosecution relied on the circumstantial evidences to substantiate their case. According to the learned Senior Counsel appearing for the appellants, the circumstances are not clinching and they do not complete the chain of events fixing the guilty of the accused. The learned Senior Counsel pointed out the following discrepancies in the prosecution case: According to the prosecution, the deceased was strangled to death with M.O.8, Cycle chain, but according to the doctor, the death was due to poisoning. There was no mark on the neck of the dead body to suggest strangulation. He has also pointed out from the forensic report that the hyoid bone was in tact. He further contended that the witnesses were picked up and tutored after getting the opinion of doctor P.W.5. The learned Senior Counsel pointed out the discrepancies in the evidence of P.W.7 and contended the last seen theory was also failed in this case, as P.W.7 does not speak about the presence of P.W.10 in his evidence. He also contended that the material contradictions in the recovery of Miranda Bottles and deceased went to attend Sujatha's birthday party she went are all fetal to the prosecution. In support of his contention, he relied on the judgment of this Court reported in 2013 (1) MWN (Cr.) 331 (DB) (Balu @ Balamurugan v. State).

18. Per contra, the leaned Additional Public Prosecutor appearing for the State would contend that the deceased was last seen in the second accused's shop on 28.03.2004 and she was recovered dead with burn injuries on the next day. P.W.4 father of the deceased had identified the cloth and hair clip recovered from the dead body and the D.N.A. Test and Superimposition Test had proved that the deceased is the daughter of P.W.4.

19. The accused were arrested and jewels of the deceased were recovered through their confessional statements. P.W.4 in his evidence has stated that the accused had already demanded the jewels of the deceased for their business development. He also relied on the evidence of P.Ws.7 and 10 as they are independent and natural witnesses. P.W.7 had last seen the deceased going to the accused shop on 28.03.2004 at about 6.00 p.m. The recovery of jewels are not disputed. He contended that the circumstances are cogent and connecting the guilt of the accused.

20. We have considered the rival submissions carefully with regard to the facts and citations. We have also gone through the evidence on record.

21. The Village Administration Officer, P.W.1 on information found the dead body on the southern side of a bridge in Sivakasu - Vilampatti road near Patthukallu Mandapam on 29.03.2004 at about 12.30 p.m. and lodged a complaint Ex.P.1 before the jurisdictional police station. The dead body was fully burnt and the identification was not fully known. The dead body was in such a condition that it could not be taken to the hospital for postmortem and the postmortem was therefore conducted in the place in which the body was recovered. P.W.5, the doctor, who conducted the postmortem gave his opinion on 22.07.2004 in Ex.P.13, after obtaining the chemical analysis report and viscera report that the deceased appears to have died due to diazepam poisoning. The viscera report dated 21.04.2004, discloses the presence of diazepam in the stomach, intestine, liver and kidney.

22. The Investigating Officer had recovered broken scissor, one liter plastic bottle with petrol smell, a bunch of hair with hair clip, portion of red and yellow colour Sudithar with flower design, portion of burnt gunny bag and burnt rope from the place where the body was recovered. The Scientific Assistant, Forensic Department, Chennai in his report dated 20.05.2005 (Ex.P.25) mentioned the presence of petrol in M.O.2. Condition of the dead body, petrol can, the gunny bag, the burnt rope disclose it is a homicide.

23. The body was fully burnt. However, P.W.4 identified the dead body through cloth M.O.4, hair clip M.O.3 recovered from the dead body that they belong to his deceased daughter Brigit Akila Mary. It was also confirmed by his wife and another daughter. The evidence of P.W.4 discloses that the deceased Brigit Akila Mary and A2's wife Sujatha were classmates and the deceased often visited their tailoring shop. His evidence was corroborated by the evidence of P.W.7 and P.W.10.

24. The deceased left the house on 28.03.2004 in a bicycle around 5.00 p.m. to meet A2's wife Sujatha on account of her birth day. P.W.7, a petty shop owner having a shop adjacent to the second accused's tailoring shop had witnessed the deceased going inside the tailoring shop on 28.03.2004 at about 6.00 p.m. According to P.W.7, the deceased came in a bicycle and was wearing red colour Chudithar with yellow flower design. A.1 had purchased three mini Miranda Bottles, from his shop around 7.00 p.m and around 7.30 p.m. brought a four wheel cart and taken a gunny bag in that cart.

25. The accused were arrested by P.W.20 on 31.03.2004 at about 10.00 a.m. from a tea stall in Sivakasi Carnation Colony Bus Stop in the presence of P.W.1. The accused gave a confessional statement and pursuant to the same P.W.20 recovered a cycle chain covered with cloth, three Miranda bottles, Sudithar Jacket, sign board from the accused shop. The Investigating Officer P.W.20 had also recovered jewels M.Os.9 to 15 from a pump set room near A.2's sister's house. A four wheel cart was recovered from the cycle shop of P.W.13 at the instance of the accused. An Atlas Cycle (M.O.18) was recovered from Olympic Theatre Cycle Stand in a Mahazar Ex.P.9. A strip of Valium tablet was recovered from the medical shop of P.W.15. The skull and the bones were collected and vaginal swab taken from the dead body were sent for chemical analysis.

26. The District Police Surgeon, Department of Forensic Medicine, Madurai Medical College, Madurai vide his report dated 05.05.2004 in Ex.P.28 gave a report that hyoid bone is in tact. On examination of other bones, he gave an opinion that the Femur, Pelvic bones and the Sacrum appears to be human origin, female, aged about 18 - 20 years and appears to be belonging to one and the same individual. On examination of the Vaginal swab, the Assistant Chemical Examiner, Regional Forensic Lab in his report dated 29.04.2004, gave his opinion that there was no semen detected. The D.N.A. test was conducted with the recovered bone from the deceased and by taking blood samples from the parents of the deceased. The Assistant Chemical Examiner/Assistant Director Forensic Department vide his report dated 31.12.2004 (Ex.P.31) opined that (i) The bones in item 1 and 2 described above belong to a human female individual. (ii) The person Brijid Akila Mary to whom the bones in items 1 and 2 described above is the biological offspring of Mr.D.Ravi and Ms.R.Paralogamary.

27. The skull recovered from the deceased was also subjected to superimposition test. The Additional Director of Chennai Forensic Department P.W.23 had stated that the skull coincide with the photograph of Brigit Akila Mary. The Superimposition Test is also marked as Ex.P.34.

28. From the available evidence, the body recovered on 29.03.2004 on the southern side of the bridge in Sivakasi - Vilampatti Road is of Brigit Akila Mary. The deceased appeared to have died due to poisoning. But she was recovered in a burnt condition on the southern side of the bridge. Along with the dead body a half burnt gunny bag, rope and bottle with petrol smell were recovered. On Chemical examination of M.O.2, the presence of petrol was detected. From these above materials it is evident that it is a case of Homicide and not a case of suicide. The deceased was identified as daughter of P.W.4 from the dress and hair clip recovered from the dead body, D.N.A. test and superimposition test.

29. The deceased Brigit Akila Mary was a classmate of Sujatha @ Veni, wife of A.2/Raja Mohammed. The deceased left the house on account of birth day celebration of Sujatha. The said Sujatha was curiously not examined by the prosecution. It is in fact a material defect on the part of the prosecution. However, the case of prosecution that the deceased and Sujatha were classmates was not denied by the accused. On the other hand, a suggestion was put to P.W.4 that the deceased had love affair with one Joseph, son of George and the accused had suppressed their affair and on that enmity P.W.4 is giving evidence against them. Thus, A.1 had admitted his acquaintance with the deceased and she was last seen in the tailoring shop by P.W.7. Moreover, the accused have referred the said Sujatha @ Veni, wife A.2 as their witnesses when they were examined under Section 313 of Cr.P.C. but failed to examine her as witness.

30. P.W.7 is a neighbour to accused tailoring shop. P.W.7 and the accused came as tenant of P.W.10. P.W.7 is running a petty shop and would be available from 7.30 a.m. to 11.00 p.m. Therefore, he is a material witness and also independent witness in this case. According to P.W.7, the deceased often visited the second accused's tailoring shop and went to accused tailoring shop on 28.03.2004 at about 6.00 p.m. in a bicycle and parked the bicycle in front of the shop and went inside. After some time, A.1 came and purchased three mini Miranda bottles from his shop. At about 7.30 p.m. A.1 brought a four wheel cart and parked it in front of the shop. After some time, both the accused brought the gunny bag from the tailoring shop and kept the same in the cart. When P.W.7 enquired about the gunny bag, the second accused replied it was waste cloth bundle. A.2 took the cart on the eastern side and A.1 followed the same in the cycle. P.W.7, who had noted the deceased entering into the accused tailoring shop and had stated that he has not seen the deceased coming out of the shop. These evidences were also cross-examined on the same day. P.W.7 was examined on 20.12.2005 and he was also cross-examined on the same day. P.W.7 was also called again on 03.08.2007 and he was cross-examined. In the evidence dated 03.08.2007, he has stated that he has referred only a girl with lean body aged about 20 - 22 years came in a bicycle on 28.03.2004 at 6.00 p.m. and was wearing yellow red colour sudithar with flower designs. He denied that he has not stated before the police that the deceased used to come often to the tailoring shop and said lean girl is the deceased.

31. The learned Senior Counsel had also pointed out that P.W.7 has stated that he has not spoken about P.W.10 and the accused had returned the Miranda bottles immediately, Whereas according to the Investigating Officer the three Miranda bottles were recovered on the admission made by the accused shop on 31.03.2004. The photograph of the deceased was not at all shown to P.W.7. Therefore, it cannot be fixed that it is only the deceased Brigit Akila Mary came to A.2's shop, on 28.03.2004 at 6.00 p.m.

32. As we have already stated, P.W.7 is a natural witness and also an independent witness, he is a neighbor of accused and there is no reason for him to speak against the accused. P.W.7 had specifically stated in his evidence that on 28.03.2004, at about 6.00 p.m. the deceased came to second accused's tailoring shop in bicycle. P.W.7 had witnessed the accused bringing four wheel cart and taking out a gunny bag on 28.03.2004. This evidence is corroborated by the evidence of P.W.10 and P.W.13. P.W.10, the house owner of the accused. P.W.7 had informed the accused taking a gunny bag in the four wheel cart at 7.00 p.m. The presence of P.W.10 was not stated by P.W.7 in his evidence. P.W.10 was not present at 6.00 p.m. when the deceased entered into the shop of the accused. He joined P.W.7 at 7.30 p.m. when the accused taken out four wheel cart. P.W.7, who described the incident from 6.00 p.m. had omitted the presence of P.W.10 at 7.30 p.m. and it cannot be material defect to disbelieve both P.W.7 and P.W.10, who are natural witnesses and also independent witnesses and their evidence cannot be thrown out at this minor contradiction.

33. The hiring of four wheel cart by the accused on 28.03.2004 was re- established by recovering M.O.17 and Ex.P.35. P.W.13 had identified A.1 that he had only hired the four wheel cart from his cycle shop on 28.03.2004 and the same was entered in the register (Ex.P.35). The evidence of P.W.13 would corroborate the evidence of P.W.7 and P.W.10.

34. P.W.4, father of the deceased stated in his evidence that the deceased and second accused's wife Sujatha were classmates. His daughter often used to go to his shop. This evidence of P.W.4 also corroborates the evidence of P.W.7 that the deceased often visited the second accused's tailoring shop. P.W.7 has also stated that when the deceased girl came to the tailoring shop on 28.03.2004, she was wearing red and yellow color Sudithar with flower design and that was emphasized again in his evidence on 03.08.2007. The red and yellow colour dress was recovered from the dead body and the same was marked as M.O.4. The parents of the deceased have identified their daughter's things and the hair clip (M.O.3). While so, there is no reason to disbelieve the evidence of P.W.7.

35. Regarding the recovery of Miranda bottles from the accused shop on 31.03.2004 and the evidence of P.W.7 that Miranda bottles were returned by the accused on the same day. The Miranda bottles have not been sent for chemical analysis. Since some bottles of Miranda were recovered on 31.03.2004 from the accused shop, it cannot be a ground to disbelieve the evidence of P.W.7.

36. The cycle of the deceased also was recovered from a cycle stand at the instance of the accused and marked as M.O.18. The accused gave a confessional statement that they administered Valium-10 tablet to the deceased and through their confessional statements a strip of Valium-10 tablet was recovered from the medical shop belonging to P.W.15. The recovered Valium-10 tablet was sent for chemical analysis on 21.04.2004. The Scientific Assistant who examined the viscera on 21.05.2004 (Ex.P.37) reported that diazepam was detected from the stomach, intestine, liver and kidney. They have also examined Valium-10 tablets recovered from P.W.15 and reported that diazepam was detected from those tablets. The Valium-10 tablets were recovered from P.W.15 in Mahazar Ex.P.10 on 20.04.2004, pursuant to the confession statements of the accused. Though P.W.15 turned hostile, the chemical analysis report discloses that the chemical diazepam detected in the Valium tablets was also detected from the stomach, liver, intestine and kidney of the deceased.

35. P.W.4 in his evidence had stated that the accused had demanded the jewels of the deceased for their business development, even two years prior to the occurrence. The deceased informed P.W.4 and P.W.4 objected to it that the same was required for her marriage. This was not denied by the accused. The jewels of the deceased were recovered from the pump set near A.2's sister house at the instance of the accused. The deceased was last seen in the accused tailoring shop by P.W.7. Cycle of the deceased was recovered in Olympic Cycle Stand at the instance of the accused. The accused had hired a four wheel cart on 28.03.2004 at about 7.00 p.m. from P.W.13 and the register for the same is recovered and marked by the prosecution. The accused had taken the gunny back in the four wheel cart on 28.03.2004 at 7.30 p.m. and the same was witnessed by P.W.7 and P.W.10. Along with the dead body, a half burnt gunny bag and rope were recovered. The chemical in the Valium 10 tablets recovered at the instance of the accused is tallying with the chemical present in the stomach, intestine, liver and kidney of the deceased. All these circumstances form a link as a chain of events and would constitute the guilt of the accused.

36. The judgement relied on by the learned Senior Counsel is not applicable to the facts of the present case, wherein the prosecution case was on the recovery of jewels alone, whereas in the case on hand there are other linking evidence other than recovery.

37. In the light of foregoing, the conviction and sentence imposed by the trial Court is confirmed and the appeal is dismissed. The bail bonds executed by the accused stand cancelled. The respondent police is hereby directed to take steps to secure the accused in order to undergo the remaining period of sentence. sj To 1.The Inspector of Police, Maraneri Police Station, Virudhunagar District. 2.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.