V. Bakthavatsalu, J.@mdashThe appeal is preferred by the sole accused against the conviction and sentence imposed by the learned Principal Sessions Judge, Cuddalore in S.C. No. 63 of 97. The learned Sessions Judge has framed four charges against the Appellant/accused.
2. The first charge is that on 6.11.96, between 12.45 p.m. and 2.30 p.m. at Annamalai Nagar in Raja Muthiah Medical College, the accused abducted one Navarasu, the first year M.B.B.S student, who was staying in Room No. 95 of E1 Malligai Hostel, from Dean''s room to accused room No. 319 in K.R.M. Hostel, while the deceased was going out after attending the viva voce test along with the other students and therefore, he is liable to be punished u/s 364 IPC.
3. The second charge is that on the same day at about 2.45 p.m. and in the course of the same transaction, the accused wrongfully confined Navarasu inside Room No. 319 and therefore, he is liable to be punished u/s 342 IPC.
4. The third charge against the accused is that in the same transaction, the accused murdered Navarasu by severing his head from the trunk with the aid of stainless steel knives, while he was lying on the floor unconsciously and therefore, he is liable to be punished u/s 302 IPC.
5. The fourth charge is that in the same transaction, the accused cut and dismembered both the upper and lower limbs of Navarasu and loaded the torso in a big suit case and the limbs in another suit case and the accused put the head in a zip bag after removing the ring, wrist watch and minor chain and went to the open terrace of the hostel and burnt the blood stained old clothes and threw the zip bag containing the head of Navarasu in the boat canal and the other articles in a thick thorny bush in the northern bank of the boat canal and that at about 8.30 p.m. he carried the two suit cases to Chidambaram railway station and boarded the train coming from Thanjavur bound for Madras and when the train crossed Cuddalore, the accused threw away from the train, the limbs of Navarau in a river and that he reached Madras on 7.11.96 with one empty suit case and at about 5.30 p.m. he came to Tambaram railway station and found a bus parked there and removed the torso of Navarasu packing from the suit case and placed it underneath the back seat of the bus and returned to Chidambaram with two emptied suit cases with an intention to screen from legal punishment and that therefore, he is liable to be punished u/s 201 IPC. The accused pleaded not guilty to the above charges.
6. The prosecution to prove the above charges has examined P.Ws 1 to 78 and marked Exs.P-1 to P-128 and M.Os 1 to 49.
7. The case of the prosecution as disclosed from the above evidence is as follows: The deceased Navarasu is the son of Ponnusamy, P.W. 1. P.W. 1 was the Vice Chancellor of Madras University. The deceased was admitted in Raja Muthiah Medical College in Annamalai University in the month of November 1996 in the first year (Junior). The deceased was staying in the Hostel E1 Malligai in Room No. 95. The accused was at that time studying first year M.B.B.S course (Senior) and he was staying in Room No. 319 in K.R.M. Hostel.
8. On 6.11.96, a viva voce test was conducted in Physiology. P.W. 4 attended the said class. The above test was completed at 11.30 p.m. on 6.11.96. The accused enquired him as to whether he has done well in the above test. He also enquired P.W. 4 whether the students, who are having alphabets of M and N, finished their test, for which P.W. 4 told him that the above test would not have been completed and thereupon the accused left the place. P.W. 3 was the warden of Malligai Hostel. Ex.P-8 is the practical record book of the accused dated 27.6.96. P.W. 4 has written notes in the above book for the accused and he has also drawn drawings at the request of the accused. P.W. 5, who was a junior student on the date of the occurrence, also wrote notes, which is marked as Ex.P-9, for the accused. P.W. 6 another junior student also wrote notes for the accused at pages 5, 6, 7, 10 and 12 in Ex.P-10, the record book.
9. P.W. 7 was the Reader in Biochemistry branch in the month of November 1996. The deceased was his student at that time. On 6.11.96, he conducted class between 8.30 and 9.30 am. The deceased and other students also attended the above class. Ex.P-11 the attendance register contains the entries of the persons who attended the class. P.W. 9 is a Lecturer in Physiology subject. He conducted viva voce test on 6.11.96 between 10.30 and 12.30 p.m. Ex.P-7 is the record evidencing the above test. Serial No. 66 relates to the deceased Navarasu. The deceased Navarasu attended the above class.
10. P.W. 10, is the Reader in Anatomy Branch. He used to conduct classes in Anatomy between 8.30 a.m. and 9.30 a.m. He conducted practical test on 6.11.96 between 2.30 p.m. and 4.30 p.m. But the deceased did not attend the above test.
11. P.W. 15, the second year student, was staying in Room No. 318 at K.R.M. Hostel. The Cricket Match between India and South Africa was telecasted on 6.11.96. He returned to his room after 11.00 p.m. The accused. Raja Chidambaram and Zakir Kabiris were staying in Room No. 319. P.W.16, who was staying in Room No. 317, at K.R.M. Hostel, went to the T.V. room to view the cricket match and he returned to the room at 10.30 p.m. P.W. 17, who was staying in Room No. 321, was also viewing the match between 5.00 and 11.00 p.m. in the T.V. room. P.W. 18 was staying in the house bearing D.No. 113, S.P. Koil Street, Chidambaram. On 6.11.96, P.W. 37, Raja Chidambaram, came to his house and after viewing the cricket match till 10.30 p.m, he returned to the hostel.
12. P.W. 19, the first year student, also attended the viva voce test on 6.11.96. The deceased also attended the said class. After P.W. 19 returned to his room, the accused enquired him whether Navarasu participated and completed the test, for which P.W. 19 told him that the deceased did not complete his test. Thereafter, the accused left the place. P.W. 20, was the first year medical student. When he was returning after attending the class on 6.11.96 at about 12.00 noon, he met the accused. The accused enquired him as to whether viva voce test was completed and he also told him that Navarasu did not complete his test. P.W. 21, the first year student, attended the test on 6.11.96 and was returning from the hall alongwith P.W. 22. At that time, they saw the accused sitting in the bench in front of the Dean''s room. At that time, the accused called the deceased and he gave signal to P.W. 21 and two others to leave that place. P.W. 23, the lab-assistant, saw the accused and the deceased together talking on 6.12.96 at about 12.45 or 1.00 p.m. in front of the Dean''s office. P.W. 25, the second year student, saw the accused and the deceased together on 6.11.96 at about 2.00 p.m. P.W. 8, the lecturer, in the said college in the anatomy branch was maintaining the attendance register Ex.P-13. The deceased attended the class on 6.11.96. But he did not attend the class thereafter.
13. P.W. 28 is the auto driver. The accused on the day prior to Deepavali hired an auto at 8.00 p.m. to reach the railway station. He took the auto to K.R.M. Hostel. The accused brought two suit cases and alighted in front of the railway station. P.W. 29, the Watchman, noted the auto entering K.R.M. Hostel at about 8.15 p.m. He also saw the accused coming out from the room with two suit cases at 8.30 p.m. The above watchman also noted the accused returning on 8.11.96 at 4.00 a.m. with the above said two suit cases.
14. P.Ws 37 and 38, the roommates of the accused noted that the accused did not return to Room No. 319 on 7.11.96. P.W. 40, who is staying in Room No. 323, K.R.M Hostel, saw the accused on 8.11.96 at 4.30 a.m. standing in front of Room No. 319 with two suit cases. When P.W. 40 enquired the accused as to why he is sitting there, the accused told him that the keys of the room were taken away by his roommate. At about 5.30 a.m. he placed one suit case in the room occupied by P.W. 40. M.O. 14 is the said suit case. At about 6.30 a.m. he saw the accused. The accused was found sleeping in Room No. 325 along with the suit case M.O. 13. P.W. 40 was told by Balaguru that foul smell emanated from Room No. 325. Thereafter, at 12.30 p.m. the accused left the room with the suit case M.O. 13.
15. P.W. 41 was staying in Room No. 325 K.R.M. Hostel. On 8.11.96, at about 6.00 a.m. the accused came to his room with the suit case M.O. 13. He permitted the accused to sleep in his room with the suit case. He also smelt bad odour from Room No. 325. P.W. 42 was staying in Room No. 314, K.R.M. Hostel. He saw the accused sleeping in the room of Pulkanil. On 9.11.96 at about 12.00 noon, he and the accused went to the mess room, but the accused did not eat anything. Subsequently, he found the accused leaning on the wall of Room No. 319. When P.W. 42 entered the room, bad odour emanated from the above room. When P.W. 42 enquired the accused, the accused told him that he brought briyani and that he did not take briyani and that smell is emanating from the above briyani packet. Thereafter, at about 4.30 p.m. the accused asked him to drop at the railway station in his motor bike. Accordingly, P.W. 42 took the accused to the railway station and the accused asked him to purchase a ticket to Thanjavur. On 10.11.96, when P.W. 42 saw the accused in front of Room No. 319 he enquired him and the accused told him that he returned from Trichy.
16. P.W. 53, the Conductor in Metropolitan Bus 21-G, was proceeding in the bus on 7.11.96 and near Kaliappa Hospital he heard a sound. When he saw underneath a passenger seat, he noticed a parcel kept beneath the seat. When he opened the parcel, he saw a torso. Thereupon, he went to Foreshore Estate police station and gave a report under Ex.P-40. P.W. 54, the Sub-Inspector received the above report and registered a case in Crime No. 1544 of 96 u/s 302 IPC. P.W. 55, the Inspector, proceeded to the spot on 7.11.96 at 8.15 p.m. and prepared an observation mahazar Ex.P-42 and a sketch Ex.P-43. He also recovered blood stained mud and ordinary mud under a mahazar Ex.P-44. He also extracted blood from the seat of the bus and recovered the same under mahazar Ex.P-45. In the presence of panchayadars, he also conducted inquest on the torso. Ex.P-46 is the inquest report. Thereafter, he sent the torso to the hospital for post mortem.
17. On 9.11.96, P.W. 2, the Deputy Warden of E.I Malligai Hostel went to Room No. 95 and saw the room was locked. Then, he informed the same to the Registrar. Intimation was also sent to P.W. 1. P.W. 1 was expecting his son to come to the house for Deepavali celebrations. As Navarasu did not come to the house, he contacted the Registrar and Vice Chancellor of the University. Subsequently, he received an information that his son was not found in Room No. 95. Thereafter, P.W. 1 reached Annamalai Nagar and gave a report Ex.P-1 to the police. P.W. 76, the Sub-Inspector attached to Annamalai Nagar Police Station received Ex.P-1 at about 11.30 p.m. on 10.11.96 and registered a case in Crime No. 509 of 96. Ex.P-110 is the first information report.
18. P.W. 57, the Inspector attached to Tambaram Police Station received the first information report Ex.P-41 and took up the investigation. He prepared the first information report Ex.P-49 and the same was received by the Annamalai Nagar Police Station. P.W. 66, the Police Surgeon attached to Department of Forensic Medicine, Government Royapettah Hospital, conducted autopsy on 8.11.96 at 12.55 p.m. on Torso of the human body. During post mortem, he found the following injuries:
1. Clean cut incised circumferential wound with regular margins measuring 38 cm at the level of the upper border C-6 vertebra with anteroposterior and transverse diameters measuring 14 and 13 cm respectively. All the structures of the neck and the cervical vertebra region were found clean cut along the line of this wound leading to the de-capitation of the head and neck. Extensive bruising of the sot tissues seen (antemortem wound). Blood clots were seen over the tracheal and oesophageal mucosa. 2. Clean cut incised circumferential wounds with regular margins (right 42 cm left 37 cm) seen along both the shoulder joints with intact glenoid cavities of the scapulae exposed. All the soft tissues of both the shoulder joints were found to be regularly cut along the line of the wound leading to the disarticulation of both the upper limbs. 3. Clean cut incised circumferential wound with regular margins seen along the inguinal regions and at the same level exposing the intact acetabular cavities on both sides (right side 70 cm left side 60 cm). All the soft tissues of both hip joints were found to be regularly cut along the line of this wound causing the disarticulation of both the lower limbs. In the upper limbs the vertical and transverse diameters of the right side wound are 16 cm and 13 cm respectively and on the left side 15 and 14 cm respectively. The vertical and transverse diameters of the right lower limb injury were 24 and 20 cm and on the left 23 and 20 cm respectively. 4. Clean cut incised circumferential wound with regular margins seen at the level of umbilicus and running all around the sides and back to the level of L3 and L4 and stopping short of the umbilicus at 6 cm each on either side (48 cm x 4 cm left 3 cm right). All the tissues were found to be cut along the line of this wound including the intervertebral disc between L3 and L4 excepting the bone and exposing the peritoneal cavity. The coils of the intestines were found exposed on both sides of the abdomen. On dissection, all the large intestines were found intact.
INTERNAL EXAMINATION All the other organs have started decomposing. Cut section pale. Heart chambers empty. Stomach contains 20 ml of pinkish fluid. No specific smell perceived. Mucosa NAD. In large intestine, small quantities of formed faecal matter seen. In anus sphincter lax but not patulous. No evidence of foreign matter in the anal canal. Stomach, intestines, liver and kidneys were sent for chemical analysis. Swabs from the anus and the lower rectum were preserved for micro biology examination and for detection of spermatozoa. Tissues from the cut ends of the wound preserved for histopathology examination. Bladder empty.
The Doctor is of the opinion that the deceased would appear to have died of decapitation injuries. Ex.P-74 is the post mortem certificate.
19. P.W. 78, the Inspector took up investigation and examined the witnesses on 11.11.96 and 12.11.96. He also inspected Room No. 319 on 13.11.96 and examined the witnesses. During investigation, he came to know that the accused surrendered before Judicial Magistrate, Mannargudi on 15.11.96. P.W. 32, the Head Clerk, of Mannargudi Court was present in the Court when the accused surrendered before the Court. Ex.P-21 is the surrender petition. Subsequently, he sent an intimation to Annamalai Nagar Police Station and Chidambaram Court. The accused before surrendering himself to Judicial Magistrate, Mannargudi was staying in Room No. 101 alongwith one Dr. Ester in Saradhambal Hotel on 10.11.96 and he vacated the said room on 12.11.96. P.W. 34, who is the Computer Operator in Nagapattinam Control room, sent a message about the surrender of the accused to Annamalai Nagar Police Station.
20. P.W. 78 took steps for obtaining the accused into police custody and accordingly, on 18.11.96, the Court permitted police custody for five days. On 19.11.96, the accused gave a confession statement in the presence of P.W. 58, the Village Administrative Officer, the admissible portion of which is marked as Ex.P-50. In pursuance of the above statement, the accused pointed out the boat canal behind K.R.M. Hostel. Thereupon, P.W. 78 prepared an observation mahazar Ex.P-115. He also sent a requisition Ex.P-56 to the Fire Officer, for draining out water from the canal. P.W. 59, the Fire Officer, came to the spot alongwith his squad and the persons attached to the fire office drained water from the boat canal. In the presence of P.W. 59, the accused identified the place. When P.W. 59 and others searched for the objects in the water, they found a rexin bag, which was identified by the accused. M.O. 3 is the said bag. P.W. 78 recovered the same under mahazar Ex.P-51. At about 4.30 p.m. a head was found in the boat canal and the same was lifted by the fire service employee Sathasivam and the same was recovered by the police under mahazar Ex.P-55. P.W. 78 also recovered note books kept in the rexin bag under mahazar Ex.P-51 in the presence of P.W. 58.
21. P.W. 61 is a coolie by profession. He cut the bushes in the boat cancel and at that time, he found a gold chain and he handed over the same to the accused, who in turn handed over to the Inspector on 19.11.96 at 11.30 a.m. P.W. 78 went to Room No. 319, where he prepared an observation mahazar Ex.P-117 and a sketch Ex.P-118. The accused produced M.Os. 9 to 11, the knives from the room. The accused also produced M.Os 13, and 14, the suit cases, M.O. 15, the banian and M.O. 29, the chappals and the said objects were recovered under mahazar Ex.P-52 in the presence of P.W. 58 and other witnesses.
22. P.W. 78 recovered blood stained cement and ordinary cement M.Os 30 and 31 under mahazar Ex.P-53. Thereafter, he proceeded to Room No. 325. At about 3.15 p.m. he recovered M.O. 32, the blood stained cement and ordinary cement under a mahazar Ex.P-54. P.W. 60 and other students identified the head as that of the deceased Navarasu. Thereafter, he altered the case from the head "man missing" to under Sections 342, 201 and 302 IPC. Ex.P-119 is the first information report. He also conducted inquest in the presence of panchayadars and prepared the report Ex.P-120. At about 7.45 p.m. P.W. 78 in the presence of P.W. 58 recovered M.O. 22 the zip bag and M.O. 34, the nylon rope etc., under mahazar Ex.P-55. P.W. 70, the photographer, was pressed into service to take photos of the scene of occurrence. P.W. 78 took the accused to Royapettah Hospital, Madras at about 2.30 p.m. The accused identified the torso. P.W. 70 also sent a requisition to the Court for sending the material objects to the chemical examiner. Thereafter, he sent a requisition to the Doctor to conduct post mortem on the head and torso. He also conducted inquest between 11.00 a.m and 12.30 p.m. on 21.11.96 on both the head and torso and prepared report Ex.P-121.
23. P.W. 66 received requisition Ex.P-75 on 21.11.96 for conducting autopsy on the head of Navarasu and accordingly, he con ducted autopsy and noted the following injuries:
Appearance found at the post-mortem, a head with skeletonised face and fore-head. The scalp along with the hair could very easily be removed from the underlying skull by the hands. The scalp was not dry but it was in the stage of partial dissolution. The skeletonised lower jaw was found loosely hanging from the respective temporal fossa with amorphous soft tissues at their articular surfaces and they could be easily disarticulated. The upper fifth cervical vertebra were skeletonised and were found loosely hanging from the respective position of the base of the skull and they were in alignment with each other by means of amorphous soft tissues. Post mortem loosening of the teeth seen in both the upper and lower jaws. Skull: It is that of a male. There is a 7 cm long fissured fracture on the left side of the occipital bone with extravasation of blood along the fractured margins. There was no obliteration of the ecto cranial sutures. On opening the skull meninges could be made out which was shrunken and only small quantity of liquified brain seen. There was no evidence of obliteration of the endocranial sutures. Height of the skull is 22.5 cms. Maxilla: The third molars have erupted but not fully come out of the alveolar sockets and are in line with the alveolar margins. All the teeth were present except the two incisors canine and second premolar on the left side of sockets were fully mature with no evidence of extravasation of blood in them. Cavitation seen in the right first molar and left first molar with evidence of filling in them. A fissured fracture on the right hand palate with no evidence of extravasation of blood in its margins. Mandible: The third molars have erupted and just above the alveolar margins with absolutely no evidence of secondary dental changes. All the teeth were present except the medial incisor on the left side whose socket was fully mature with no extravasation of blood in it. Cavitation seen in the first molar with evidence of filling in it. The skull alongwith the mandible is that of a male and its age is above 17 but below 19 years. Cervical Ver tebra: The 1 to 5 cervical vertobra were found along with the skull. There was no bony injuries in those vertebra. The respective surface of the fifth cervical vertebra of the head was found to be receprocally fitting into the corresponding surface of the sixth certical vertebra of the torso (by post mortem No. 331/96) and this articulation was exact in nature.
The Doctor issued post mortem certificate Ex.P-76.
24. P.W. 43 belongs to Thiruvakarai Village. He was the Village Administrative Officer of Kunimedu Village. On 20.11.96, he was told by the Fishermen that a parcel was found lying near the beach. On 21.11.96, P.W. 43 went to the bridge and saw bones and a yellow colour lungi and rope. Thereafter, he lodged a complaint under Ex.P-26 to Marakkanam Police Station. P.W. 44, the Sub-Inspector attached to Marakkanam Police Station received the complaint Ex.P-26 and registered a case in Crime No. 541 of 96 u/s 174 Code of Criminal Procedure Ex.P-27 is the first information report. Then, he proceeded to the spot and prepared an observation mahazar Ex.P-28 and a sketch Ex.P-29 in the presence of the witnesses Vasu and Vijayamoorthy. He also conducted inquest and prepared report Ex.P-30. Thereafter, he sent the above bones and other material objects to Tindivanam Government Hospital for post mortem under a requisition Ex.P-31. P.W. 45, the Doctor conducted post mortem on the above bones on 22.11.96 at about 10.30 a.m. and gave the report under Ex.P-35. During investigation, P.W. 78 examined P.W. 52 the Dentist attached to Madras Medical Collage. It was revealed during the said investigation that the deceased came to the clinic on 28.8.95 for tooth ailment. P.W. 52 has stated that Navarasu was already treated for tooth ailment. He also noted a small hole in one of the teeth in the upper jaw. Ex.P-2 is the record relating to the teeth of the deceased.
25. As the period of police custody expired, P.W. 78 gave a requisition to the Court for taking the accused to further police custody for about 3 days and orders were passed accordingly. P.W. 78 also sent requisition to the Court for recording the statement of witnesses u/s 164 Code of Criminal Procedure Ex.P-83 is the requisition letter.
26. P.W. 71, the Magistrate recorded the statement of witnesses on 25.11.96. P.W. 71 also received the material objects from Judicial Magistrate No. I, Chidambaram. The witness Raja Chidambaram also identified M.Os 1 to 11 in the presence of the Magistrate. Ex.P-90 is the report M.Os 9 to 23 were identified in the identification parade by the witnesses. Though, P.W. 78 took the accused for further custody on 26.11.96, the accused did not give any statement.
27. The Investigating Officer sent a requisition to the Doctor to conduct post mortem on 25.11.96. As per the requisition, the doctor, P.W. 66, examined the Femur, Tibia and Fibula and noted the following.
Femur The Composite epiphysis of the upper femur was fully ossified and united with the shaft. The lower epiphyseal end was not found and its corresponding shaft margin was serrated. The anatomical configuration of the femur is that it belongs to the right side and that of a male. Its age is above 17 but below 19. Its length is 47 cms. Tibia: The upper epiphysis was not found and its corresponding shaft margin was serated. The lower end was not found and its corresponding shaft margin was irregular. The rest of the shaft was is present and intact. The anatomical configuration of the tibia is that it belongs to right side and that of a male. The upper epiphyseal union is not complete and its age is above 17 but below 19. Its length is 37 cms. Fibula: The lower epiphyseal end is complete and is united. The upper epiphyseal end was not found and its corresponding shaft margin was serrated. The anatomical configuration of the fibula is that it belongs to right side and that of a male. Its age is above 17 but below 19. Its length is 41 cms. No soft tissues were seen on the surgaces of the bone and they were not dry, but still emitting foul odour. No bone injuries seen on the available parts. There was no reduplication of the available bones. Therefore, they belong to one individual and it is male. The stature estimated from the available femur is 179.54 cms by applying the multiplication factor arrived locally (MF 3.8). Adding up the missing lower and as 3 cms the stature comes to 182.54 cms. This estimation of stature is only an approximatte and not a pregmatic one. The right head of the femur reciprocally fit into the corresponding acetabular cavity of the torso (post mortem No. 331/96) and this acetabula femoral articulation was exact in nature. The other long bones could not be aligned with the respective available bones, because of the missing parts in them. However, their age group fits in exactly with each other and also that of the torso vide post mortem No. 331/96 and that of the head vide post mortem No. 330 of 96
Ex.P-77 is the report given by the Doctor. Thereafter, he sent the skull alongwith torso and hair to State Forensic Science Laboratory.
28. On 27.11.96, the accused gave a statement in the presence of the witnesses and the same was recorded at about 8.00 a.m. P.W. 78 inspected Room No. 319 and in the presence of Mohan, he recovered blood stained cement,M.O. 47, ordinary cement, M.O. 48 and broom stick, M.O. 49 under mahazar Ex.P-122. On 29.11.96, P.W. 78 sent a requisition to the Doctor to examine the head, torso and bone to ascertain, whether the above objects belong to one and the same person. Ex.P-98 is the said requisition. For the purpose of conducting DNA test, he also sent requisition to Judicial Magistrate No. I for taking blood from P.W. 1 and his wife. P.W. 1 and his wife gave their blood for the purpose of DNA test. On 7.12.96, P.W. 78 inspected Room No. 254. In K.R.M Hostel and prepared an observation mahazar Ex.P-124 and sketch Ex.P-125. He also inspected the T.V. Room in the second floor and prepared an observation mahazar Ex.P-126 and a sketch Ex.P-127. On 10.12.96, P.W. 78 contacted P.W. 1 and obtained photos of Navarasu for conducting super imposition test. He also sent requisition to the Court for sending the photos relating to the teeth of the deceased for chemical examination. On 10.1.97, P.W. 78 obtained a full size photo of the deceased from P.W. 1.
29. P.W. 64, the Assistant Director in the office of Forensic Science received M.Os 2, 16 to 20, 24 to 27 under a covering letter Ex.P-65. He examined them and sent reports under Exs.P-58 and P-59. Thereafter, he received another requisition under Ex.P-66 whereunder, he was requested to send a report regarding the blood group and accordingly, he sent report under Exs.P-68 and P-69. He also inspected the Head, Torso and Bones of Navarasu kept in the Royapettah Government Hospital and took tissues separately and sent the same for DNA test. He also sent the blood taken from P.W. 1 and his wife for DNA test.
30. P.W. 65 is attached to Forensic Science Department and he was employed as an Assistant Director in Anthropology Division. On 3.12.96, he received the photographs and a skull with mandible. On 4.12.96, the Inspector of Police, Ramakrishnan, produced another photo of Navarasu and on 17.1.97, constable Elangovan produced another photo of Navarasu. The above material objects were numbered as 1 to 11 and were examined by him. Based on the above examination, P.W. 65 has given opinion stating that item-3, the skull, could very well belong to a male individual seen in the photos and accordingly, he sent a report under Ex.P-72.
31. P.W. 72, the Head Clerk of Chidambaram Magistrate Court, sent the material objects M.Os 3 to 5, M.Os 30 and 31, M.Os 32 and 33, M.Os 22 and 34 and M.Os 9 to 14 and 15 and M.Os 47 to 49 and M.O. 1 to the chemical examiner. Subsequently, the Court received reports Exs.P-99 and P-100. The Head Clerk also received requisition under Ex.P-101 with regard to the other items. The Court also received report sent by the DNA Office under Ex.P-104. As a mistake, has crept in in the report, a letter was sent to the DNA Department and subsequently, the Court received letter Ex.P-108 after rectifying the mistake.
32. P.W. 77 was employed as Scientist in DNA Centre at Hyderabad. He received a requisition Ex.P-111 from the Investigating Officer and also another requisition from the Court under Ex.P-112. He has stated in his chief examination thus:
He has assigned CDFD (Centre for DNA Fingerprinting and Diagnostics) No. 179 to analysis. He also received blood sample said to belong to Tmt. Baby Ponnuysamy alias Sivakamy. He has assigned Ex. No. A for blood sample and CDFD No. 815 and identification Card as No. 1. He lias also received (1) tissues from the chest of the suspected deceased (2) tissues from the head of the suspected deceased (3) tissues from the leg of the suspected deceased (4) bone marrow of right femar bone of suspected deceased and (5) two maxillary third molar teeth from the skull of the suspected deceased. He has stated that the above five items were stated to be from the body of suspected deceased Navarasu involved in the above crime number. He lias given for all the above items the identification mark No. Two, Ex. No. B, C, D, E and F respectively and CDFB No. 816a, 816b, 816c, 816d and 816e respectively. He has also received blood sample stated to be that of Dr. P.K. Ponnusamy, father of the suspected deceased. He has given marking for that blood sample as identification card No. 3. Ex. No. G and CDRD No. 817. He has examined and analysed the above items. He has sent a report with the result of examination and conclusion with reasons therefor. He has sent his report dated 24.2.97 to the Director of Forensic Science Department, Madras. The said report is Ex.P-104. He has stated that on the basis of the DNA examination carried out, it was concluded beyond any reasonable doubt that (1) the source of the tissues of the chest, femur bone and two molar teeth are from one and the same human individual (2) the source of the tissues of the chest, femur bone and that of die two molar teeth are of the biological off spring/child of the suspected parents Dr. P.K. Ponnusamy and Tmt. Babu Ponnusamy alias Sivakami. Along with that report, he has sent three enclosures. Identification Card No. 1 relates to the details of Tmt. Baby Ponnusamy alias Sivakami. In such card No. 1, he has put the date of receipt of that case on 6.12.96. Identification card No. 2 relates to the details of Thiru. Navarasu S/o. Dr. P.K. Ponnusamy. The date of receipt of that case was mentioned by him as 6.12.96. In the same enclosure, identification card No. 3 relates to the details of Dr. P.K. Ponnusamy S/o. Kandasamy. The date of receipt of that case was mentioned by him as 6.12.96. Enclosure No. 2 relates to details of my examination and analysis of above said items. Subsequently, he received a letter with respect to date of receipt of above items in his office, since he has mentioned in Ex.P-104 the date of receipt as 6.6.96. To the letter received from J.M. No. 1, Chidambaram in Ex.P-113, he has sent a reply stating that the correct date of receipt of above items was only 6.12.96 and not 6.6.96.
P.W. 78 examined the doctors and other witnesses. After obtaining the approval of the Special Prosecutor and Deputy Director, P.W. 78 filed the charge sheet on 5.2.97 under Sections 342, 364, 302 and 201 IPC.
33. The incriminating materials were explained to the accused u/s 313 of the Code of Criminal Procedure. The accused denied the above evidence. On the side of the accused, Exs.D-1 to D-6 were marked. The accused has also filed a written statement u/s 233(1) Code of Criminal Procedure. He has stated in the above statement that most of the witnesses have given false evidence. He has stated that he did not have any ill-will towards Navarasu and that he never asked him to write his record note book and that he did not call him or make him sit till 2.00 p.m. in front of the Dean''s office and that it is true that he was sitting in front of Dean''s room at about 1.00 p.m. to seek an appointment with the Dean and that since he was busy, he left after sometime and that he did not kill Navarasu as alleged by the prosecution and that he did not point out any place in the canal.
34. He has, further, stated that he boarded the train on 6.11.96 at about 9.00 p.m. at Chidambaram bound for Trichy to go to Karur and that he took his brief case M.O. 13 and that M.O. 14 belongs to P.W. 37 and that after meeting his parents on 7.11.96, he returned to Chidambaram hostel on 8th morning and that he was in the hostel on 9, 10 and 11th and that on 10.11.96 his mother and cousin stayed in Saratharam Hotel. On 11th, Inspector Ramakrishnan came to his room and enquired about the disappearance of Navarasu and that he told him that he did not know about it and that then, they took him to the guest house of the University, where the Vice-Chancellor and Dean were present and that in outer room, SP, ASP and other police officers including Ramakrishnan grilled him till 11.00 p.m. on 11.11.96 and that they told him that he must come with the truth otherwise serious case would be framed against him alongwith his parents and that thereafter, he went to the house of an Advocate, who advised him to surrender before the Court.
35. The accused has further stated that the police applied for taking him into custody and that the accused was not willing to go into police custody and that he was handed over to the police against his wish and protest and that the police officials continued to grill him till 5.00 a.m. on the next day and that they did not give any food or water and that they assaulted him without causing any external injuries and that they instructed him to confess before them and before the Magistrate and that thereafter, the police officials grilled him from 1.00 p.m. on 18.11.96 to 5.00 a.m. on 19.11.96 and that the police staged a farce of recovery of a head and other material objects and that P.W.s 37 and 38 have given evidence due to fear of the police and that every time the accused was produced in Court, the police collected many followers of political parties particularly the students belonging to All India Students Federation and that they raised slogans against him.
36. On a consideration of oral and documentary evidence, the trial Court convicted the accused under Sections 302, 201, 364 and 342 IPC and sentenced him to undergo imprisonment for life under Sections 302 and 364 IPC. The accused was sentenced to undergo rigorous imprisonment for one year u/s 342 IPC and rigorous imprisonment for seven years u/s 201 IPC. The accused was also sentenced to pay a fine of Rs. 1 lakh u/s 201 IPC. The above sentences were ordered to run concurrently. Against the said convictions and sentences, the accused has come forward with this appeal.
37. Learned Counsel for the Appellant/accused Thiru. G.M. Vridhachalam contended that the trial Court ought to have acquitted the accused especially when the trial Court disbelieved the case of the prosecution on several aspects of the case. Learned Counsel assails the findings of the trial Court regarding the identity of the deceased and the recovery of material objects, especially the head from the canal. Learned Counsel, further, contended that the evidence adduced by the prosecution to prove that the deceased was last seen with the accused replete with inherent improbabilities and inconsistencies. Learned Counsel also took us through the oral evidence and also the documentary evidence.
38. On the other hand, learned Public Prosecutor contended that the prosecution has established beyond any doubt that the accused had motive to cause bodily harm to the deceased and that the evidence also would clearly establish that on 6.11.96, the deceased was in the company of the accused and that thereafter, both the deceased and the accused disappeared and that the confession statement of the accused leading to discovery of head in the canal is a clinching circumstance to connect the accused with the offence. Learned Public Prosecutor, further, contended that the fact that the accused absconded from the hostel and surrendered before the Court would serve as an additional link in the chain of circumstances to prove the charges levelled against him. Elaborate arguments advanced by the learned Counsel for the Appellant would be considered at the appropriate stage of this judgment.
39. Learned Counsel for the Appellant inter alia contended that the identity of the deceased has not been properly established through the material objects recovered and that the medical evidence does not support the case of the prosecution that the deceased was kidnapped by the accused and that it is the accused who murdered the deceased on the afternoon of 6.11.96. Learned Counsel has pointed out certain defects in the medical evidence.
40. On the other hand, learned Public Prosecutor contended that it is not necessary in a murder case to establish corpus delicti. In support of the same, he relies upon a decision reported in Sevaka Perumal v. State of Tamil Nadu (1991 Crl.L.J 1845), wherein it is held as follows:
In a trial for murder it is not absolute necessity or an essential ingredient to establish corpus delicti. The fact of death of the deceased must be established like any other fact. Corpus delicti in some cases may not be possible to be traced or recovered.
In this case, it is the case of the prosecution that the accused murdered Navarasu and severed his head and that the severed head, torso and bones were separately discovered at difference places and that after conducting post mortem and DNA test, it was established that the above objects relates to one and the same person i.e., the deceased. As the prosecution relies upon the recovery of the head to connect the accused with the offence, it must be estab lished by reliable evidence that the severed head and other parts recovered relate to the deceased Navarasu. It must be stressed at this stage that even assuming that the dismembered joints and severed head belong to the deceased Navarasu, the prosecution has to further establish beyond reasonable doubt that the brutal and cruel act of cutting the head from the body and dismembering the joints were done by the accused. Therefore, firstly, we propose to give the finding on the question whether the prosecution has established the identity of the deceased through the objects recovered in this case.
41. It is the case of the prosecution that the head, (M.O. 35), was recovered in pursuance of the confession statement given by the accused. It is admitted that the above head i.e., skull empty of the brain, was recovered on 19.11.96 i.e., two weeks after the date of the alleged offence. The trial Court accepting the evidence of P.W. 65, who conducted super imposition test, has held that the severed head has been proved to belong to Navarasu, the son of P.W. 1. P.W. 65, the Assistant Director, Anthropology Division, in the Forensic Science Department conducted the test from 4.12.96. He has stated that he received photos of Navarasu and the objects were serially numbered as 1 to 11. Ex.P-72 is the report submitted by P.W. 65. In the above report, Item-3 is noted as the skull with mandible. Items 1, 2, 4, 8 to 11 are the photos of Navarasu. On examining the skull by comparing the same with the photos, P.W. 65, has stated that the skull, Item-3, could very well have belonged to a male individual seen in the photograph items. He has stated that an unusual feature of humped nasal bone found in the skull are correlated with the humped bridge of nose found in the photographs. The reasons for arriving at a such a conclusion are narrated in the report Ex.P-72. The evidence of P.W. 65 remains unchallenged since he was not cross examined by the defence.
42. Learned Counsel for the Appellant contended that the opinion of the witness, P.W. 65, that the skull could have belonged to a person seen in the photograph does not furnish any positive opinion. He has, further, contended that the evidence of P.W. 1 itself would show that he is unable to identify the skull. P.W. 1, the father of the deceased, has stated in his evidence that the head appears to be only a skull, though some flushes are found on the forehead and other places. But, he would say that since a mole was found in the torso, he could say that it belongs to his son. It is seen that P.W. 1 has identified the skull and torso in the Royapettah Hospital, Madras. He has also admitted that no eyes were found in the skull. The evidence of P.W. 1 that the head appears to be only a skull cannot be taken into consideration for holding that the skull cannot be identified at all. The trial Court has observed that the investigating agency has collected six photos from P.W. 1, marked in this case as M.Os 6 to 8 and that the production of M.Os 6 to 8 are not for the purpose of substantial evidence and that the production was only for comparison by the scientists. The trial Court has also pointed out that the production of the above photos were not objected by the defence. The opinion given by P.W. 65 in his report is not challenged in the cross examination. Taking into consideration, the reasons given in the report of P.W. 65, the trial Court has come to the conclusion that the skull, (M.O. 35), belongs to Navarasu.
43. There is yet another clinching factor to prove that the skull,(M.O. 35), is referrable to that of Navarasu. P.W. 52, the Dentist, has stated in his evidence that he examined Navarasu on 28.8.95 and that Navarasu told him that his teeth were already examined. P.W. 52 seems to have given silver filling on Navarasu''s right upper first molar tooth. Ex.P-2 is the record written by P.W. 52. P.W. 66, the Doctor, has noted the teeth and has given details in Ex.P-76. Relying upon the above factors, the trial Court has come to the correct conclusion in holding that the skull belongs to Navarasu.
44. It is the admitted case of the prosecution that the head was recovered on 19.11.96 and torso was recovered on 7.11.96 at Raja Annamalaipuram near Kaliappa Hospital and the bones were recovered on 21.11.96 at Kanimedu beach, Tindivanam taluk. P.W. 45, conducted postmortem on bones on 21.11.96 and sent the report Ex.P-35. The above bones are Femur, Tibia and Fibula. The fact that P.W. 45 conducted post mortem on the above three bones and submitted the report are not seriously challenged in the cross examination.
45. Regarding Torso, P.W. 66 conducted post mortem on 8.11.96. It is P.W. 56, the Constable, who handed over the Torso at the Royapettah Hospital on 7.11.96. M.O. 28 series are photos consists of Torso. It is P.W. 66, who conducted autopsy on the head, torso and also bones on different dates. The injuries found by the doctor and the salient features discovered during the post mortem were already discussed by us in paragraphs 18, 23 and 27 of this judgment. Ex.P-74 is the post mortem certificiate with regard to the torso; Ex.P-76 is the post mortem certificate with regard to the head and Ex.P-77 is the report given by P.W. 66 regarding the bones. P.W. 66 has noted clean cut injuries on torso. He gave an opinion stating that the deceased would appear to have died of decapitation injuries. It is P.W. 66 who extracted the tissues from the cut ends and wounds for Histopathology examination. On examining the skull, the Doctor has given opinion stating that the skull alongwith mandible is that of a male, who is aged above 17 but below 19 years. Regarding Cervical Vertebra the Doctor has stated thus:
The 1 to 5 cervical vertebra were found alongwith the skull. There was no bony injuries in those vertebra. The respective surface of the fifth cervical vertebra of the head was found to be receprocally fitting into the corresponding surface of the sixth certical vertebra of the torso (by post mortem No. 331/96) and this articulation was exact in nature" Regarding examination of bones, the Doctor has stated thus:
The right head of the femur reciprocally fit into the corresponding acetabluer cavity of the torso (post mortem No. 331/96) and this acetabula femoral articulation was exact in nature.
As regards the other long bones, it could not be aligned with the respective available bones, because of the missing parts in them". But the Doctor is of the opinion that however their age group fits in exactly with each other. He has also stated that the injury on the skull was ante-mortem and that the skull injury would not have caused the death immediately and that it could have caused unconsciousness. It is the case of the prosecution that the accused severed the head and dismembered the parts of the body with weapons M.Os 9 to 11. P.W. 66 has stated that sharp cut weapons like M.Os 9 to 11 could have been used for causing the injuries found on the torso. He has also admitted that severing of the head and removal of the muscles and nerves of the limbs could have been done by M.Os 9 to 11. He has also admitted that thigh bones referred to in the above report exactly fixed to die torso. He has also admitted that the ante mortem injuries found on the skull could have been caused by the head coming into contact with a blunt objects during a fall. He has stated that he has found a fracture upon the palate right side and that he has mentioned by implication suggesting post mortem. He has also admitted that injuries 2 to 6 found on the torso are post mortem injuries. However, he has admitted that the post mortem injuries found on the skull could have been caused while such severed head was thrown down from a higher place of 20 to 30 feet. In cross examination, he has also admitted that the death was not due to skull injuries.
45. Learned Counsel for the Appellant contended that in view of the evidence of P.W. 66 that he could not say whether there could have been unconsciousness or coma since there was no brain in the skull, the prosecution cannot be said to have established the cause of death. Learned Counsel also contended that the time of death is not mentioned in any of the reports Exs.P-74, P-76 and P-77. It is, further, contended that though P.W. 66 has admitted that he came to the conclusion on 8th itself regarding the probable time of death, he failed to mention the same in Exs.P-74, P-76 and P-77. The Doctor has admitted that four factors are taken into consideration to estimate the time of death. Learned Counsel contended that it is not possible to give the accuracy of time in this test. As already stated, the head, torso and bones were discovered on different dates at different places. Further, the torso contains clean cut injuries. The skull was empty of the brain. In the above circumstances, the Doctor can only estimate the probable time of death on guess work. It is impossible for a Doctor or even an Expert to fix the actual time of death while conducting post mortem on different parts of the body, which were recovered on different dates. Learned Counsel for the Appellant further contended that the Doctor has admitted that he is unable to answer as to how long after severance of the head, the severance of the upper limbs took place. The above answer given by the Doctor will not in any way assist the case of either party. The medical evidence with reference to the reports were elaborately discussed by the trial Court and the trial Court has come to the following conclusions:
Again on internal examination, P.W. 66 opined that the deceased would appear to have died of decapitation injuries. P.W. 66 had also confirmed the ante-mortem nature of injury found on the head by not only finding the same in the corresponding injury in the torso, but also by doing histological examination of both. Even though gaping one of the feature of ante-mortem was not found in the torso and that the entire substance of the brain was not available to note as to whether the clot was harder to suggest that it was ante-mortem, P.W. 66 had scrapped the tissues in the wound found in the torso and neck portion and col lected bits of tissues in other parts of torso, to find out whether the injuries are ante-mortem or post-mortem.
46. Regarding the identification of torso with limbs, P.W. 66 has found that the respective surface of the fifth cervical vertebra of the head was found to be reciprocally fitting into the corresponding surface of the sixth cervical vertebra of the torso. Therefore, P.W. 66 has come to the conclusion that the head and torso belongs to one and the same person. Though the counsel for the Appellant pointed out certain defects in the above post mortem conducted by P.W. 66, on an analysis of the entire evidence, the trial Court has come to the conclusion that the torso belong to the deceased Navarasu and it is also based on opinion. The evidence of the Doctor is only based on opinion and the data collected after several days of murder. Even assuming that the torso and limbs did not connect with the skull, it would not materially affect the prosecution case. In other words, the evidence regarding the recovery of head at the instance of the accused would be a clinching circumstance to connect the accused with the offence. If the prosecution is able to establish that the head was recovered in pursuance of the confession given by the accused, the fact that the evidence of P.W. 66 that the torso is fitted with the head is not reliable, would not render the other evidence unbelievable.
47. The prosecution has also adduced evidence regarding the analysis of DNA test. P.W. 77, is the Scientist incharge of DNA Centre at Hyderabad. The evidence of P.W. 77 is already extracted in paragraph 32 of this judgment. The evidence of P.W. 77 will show that he received blood samples of P.W. 1 and that he also received tissues from the chest, head, legs and skull of the deceased. On the analysis of the above objects, he has sent the report Ex.P-104. The Scientist, P.W. 77, has come to the conclusion that the source of the tissues of the chest, femur bone and two molar teeth are from one and the same human individual. It is seen from the evidence of P.W. 66 that he preserved the tissues from the cut ends of the wounds for Histopathology examination. But he has admitted that the tissues were collected around the top of the torso and that they were not sent to Pathology Department. However, he has admitted that the tissues were sent to chemical examiner for ascertaining the blood group. P.W. 77 has clearly stated in his report that the source of the tissues of the chest, femur bone and that of two molar bones are of the biological offspring/child of the suspected parents i.e, Dr. P.K. Ponnusamy and Baby Ponnusamy. The evidence of P.W. 77 and the report issued by him are assailed by theaccused counsel on several grounds.
48. P.W. 77 has admitted that though he received five items of tissues, items 2 and 3 did not yield any DNA and that they were not fit for analysis. Learned Counsel has also pointed out that femur bone and molar teeth were received at his request over phone only on 13.12.96 and that there is no evidence as to who extracted the tissues from the chest, bones etc., It is, further, contended that there are no materials to show in whose custody the above objects were kept and that the above essential ingredients were not kept in mind by the trial Court while analysing the DNA test. Learned Counsel has also contended that P.W. 77 could have asked for more tissues from the chest, so that a little can be preserved for re-test by the accused. When the above argument was advanced before the trial Court, the trial Court has held that when once P.W. 77 is able to impress upon the Court upon necessary datas, it is for the counsel for the accused to have sent for lab records and other exhibits. As already stated, P.W. 66 has preserved certain tissues for chemical analysis. The letter Ex.P-103, sent by the Inspector, to the Court will show that the Director of Forensic Science Laboratory was requested to send the teeth recovered from the head of the deceased to the Director, C.C.M.B, Hyderabad. Similarly, the Professor Head and Police Surgeon, Royapettah Hospital, Madras was directed to send the femur to the Director, C.C.M.B, Hyderabad. Regarding the contention of the learned Counsel for the Appellant that some more tissues were not set apart for retest, the trial Court has rightly observed that only if there is a cloud in the process of the first test and if there is necessity of retest, the non-availability of some portions of forwarded materials and setting apart the tissues would arise for consideration and that when once, there is no necessity for retest, the failure on the part of the authorities to set apart some materials for retest, would not affect the enitre evidence of P.W. 66 and P.W. 77. The trial Court also relies upon the evidence of P.W. 66, who has extracted tissues and P.W. 74 who has restored it to DNA for analysis.
49. As already stated, even assuming that the DNA analysis and the post mortem conducted on torso and limbs are not satisfactory, if the prosecution is able to establish that the head of the deceased was recovered at the instance of the accused, it would be a valuable piece of evidence to connect the accused with the offence. Learned Counsel for the Appellant contended that the evidence of the Doctors and Scientists would show that the alleged act of murder would not have occurred in the time and manner alleged by the prosecution. We would like to discuss the above aspect of the case, when giving a finding on the acceptability of the circumstantial evidence.
50. The entire case of the prosecution hinges upon the circumstantial evidence. The prosecution relies upon the following circumstances to connect the accused with the offence:
(1) Motive for the accused to murder the deceased.
(2) The accused was last seen in the company of the deceased on 6.11.96 between 1.00 and 2.00 p.m. and disappeared on the afternoon of 6.11.96.
(3) The accused leaving the hostel and reaching the railway station after 8.00 p.m. on 6.11.96 with two suit cases.
(4) The accused was seen in the hostel at 4.00 a.m. on 8.11.96 with M.Os 13 and 14.
(5) The accused again leaving the hostel on 9.11.96 at 4.30 p.m. under suspicious circumstances.
(6) The accused was staying in the lodge at Chidambaram and surrendering before the Magistrate Court, Mannargudi on 14.11.96.
(7) The confession of the accused leading to discovery of head in the boat cancal and the accused pointing out a place where the head is found.
(8) Discovery of torso at Madras
(9) Discovery of limbs at Kunimedi beach, Tindivanam Taluk.
(10) Chemical examiner''s report and serologist report regarding tallying of blood group in material objects.
(11) Blood stains found in Room No. 319.
(12) Medical evidence and DNA analysis.
51. Learned Counsel for the Appellant contended that the circumstantial evidence placed by the prosecution is not sufficient and satisfactory to connect the accused with the offence and that the trial Court failed to consider the inherent improbabilities attached with the oral evidence and glarding inconsistencies in the evidence. Learned Counsel also contended that the manner under which the young medical student was murdered will naturally cause a sense of revulsion and that the offence alleged in this case is described as a "revolting murder" and that however, the above facts would not decide the fate of the case. Learned Counsel also contended that when the murder is said to have been committed in a brutal and diabolical manner, it is necessary to examine the evidence with more than ordinary care lest the shocking nature of the crime might induce an instinctive reaction against a dispassionate judicial scrutiny. The learned Counsel seems to have relied upon a decision reported in
52. The entire case of the prosecution rests only on circumstantial evidence. It is well settled that when the case rests upon circumstantial evidence, the guidelines formulated by the Apex Court in
(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established. (2) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused. (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else, and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation on any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused, but should be inconsistent with his innocence.
The accused through the cross examination of the witnesses and the statement filed during 313 Code of Criminal Procedure examination has stoutly denied his involvement in the disappearance of Navarasu from the college and hostel. It is no doubt true that in the case which rests on circumstantial evidence, motive aspect would play a significant role. But, it must be stressed herein that even if the prosecution failed to prove the motive for the crime, the said fact alone would not render the entire case of the prosecution unbelievable. In this case, regarding motive, the trial Court on a consideration of the oral evidence and documentary evidence, Exs.P-9 and P-10, has come to the conclusion that the accused was accustomed of getting his record book written by the first year junior students and that when all the students obliged the accused, the deceased Navarasu had declined to write the record book of the accused and that therefore, the accused developed grudge against the deceased. It is the case of the prosecution that the accused was in the habit of ragging the junior students and that he exhibited his bossism. Learned Counsel for the accused contended that the motive suggested by the prosecution is feeble and that the alleged ragging has no bearing with the charge with which the accused is facing. To prove the motive aspect of the case, the prosecution relies upon the evidence of P.Ws 3, 5, 7, 8, 11, 12, 21 and 22.
53. P.W. 3 has stated in his evidence that on 19.1.96 at about 8.30 a.m. the junior students were paraded in front of the hostel called "Malligai" and that the senior students including the accused were standing there and that an enquiry was conducted by P.W. 3 and that he gave the report under Ex.P-3. P.W. 3 has been examined to show the impulsive character of the accused. It is well settled that in the criminal case, the evidence regarding the character of the accused is irrelevant. In this case, the above incident is said to have taken place on 19.1.96. But the occurrence took place on 6.11.96. P.W. 3 has admitted that in the document Exs.P-3 to P-5, he did not mention the name of the deceased. P.W.3 is the Professor in the college. It is not uncommon that in the Educational Institutions, the practice of senior students ragging the junior students are prevalent and the said vice could not be arrested till now. The tendency of the senior students ragging the junior students during the commencement of the academic year has to be curbed and nipped in the bud. But the above fact, will not be a link in the chain of circumstantial evidence to show that the accused had bad character. Further the incident that occurred on 19.1.96 cannot be taken as a relevant factor to decide the crucial issue involved in this case.
54. P.W. 4, the student studying in the first year, has stated in his evidence that on 19.9.96, the accused and others came to their hostel and insisted P.W. 4 and others to purchase tickets for a cultural programme and that the Warden and Deputy Warden at that time caught hold of the accused and one Kumar an and that they purchased tickets due to compulsion made by the accused. Relying upon the above evidence, the trial Court has held that the above act of the accused would show the impulsive character of the accused and his big expectations upon the junior students. P.W. 4 has not stated that the deceased also purchased tickets from the accused. In the absence of any evidence that the accused exercised any coercion on the deceased when he sold the tickets for the cultural programme, the above aspect of the case would not assume any importance in this case. But, the trial Court has held that the above aspect of the case have to be taken into consideration while analysing the evidence regarding the other links. Even if we analyse the above aspect of the case with other evidence adduced in this case, we do not accept the conclusion reached by the trial Court that the fact of selling tickets by force to the students and the act of the accused and other senior students in parading the junior students outside the hostel will have bearing on the charges levelled against the accused.
55. The prosecution has adduced evidence to show that the accused on 6.11.96 was in search of the deceased and that the deceased was last seen in the company of the accused till the forenoon of 6.11.96 and that the deceased disappeared in the afternoon of 6.11.96. Learned Public Prosecutor contended that the evidence adduced by the prosecution would show that the deceased was found in the company of the accused and that the same was seen by other witnesses and that thereafter, the deceased was taken to room No. 319 by the accused and that the prosecution has established that the deceased was found in the company of the accused and that therefore, the above evidence would amount to a crucial link in the chain of circumstantial evidence.
56. Learned Counsel for the accused contended that even assuming that the deceased was last seen with the accused on 6.11.96, there is no other evidence to show that the deceased was taken by the accused to Room No. 319 and that absolutely, there are no materials to prove that the deceased was wrongfully restrained or confined and abducted to Room No. 319 or any other place. For proper appreciation of the above contention, it would be useful to refer to the oral evidence adduced on this aspect.
57. As already stated, only on 10.11.96 at about 11.30 p.m. P.W. 1, the father of the deceased, lodged a complaint. It is also not in dispute that the above complaint was registered under the head "man missing". Ex.P-119, will show that only on 19.11.96, the case was altered into Sections 342, 302 and 201 IPC. In the light of the above facts, the oral evidence has to be examined and analysed. P.W. 7, is a Reader in Annamalai University. He has stated in his evidence that on 6.11.96, the deceased Navarasu attended the class between 8.30 to 9.30 a.m and that subsequently, he did not attend the classes. P.W. 7 has also produced the attendance register and the entries are Exs.P-11 and P-12. The prosecution has also examined witnesses to prove that junior students wrote records for the accused in Exs.P-8, P-9 and P-10. P.W. 4 has stated that in the Record Book, Ex.P-8, he wrote notes at pages 13, 17 and other pages and that as per the command given by the accused, he wrote the above records in the book. P.W. 5 has also admitted that he has written records in Ex.P-9, the book maintained by the accused. P.W. 10, employed as Reader in Annamalai University, has also admitted that the Record Book Ex.P-8 is maintained by the accused and that he has also initialled in the said book. P.W. 6 has stated that in the Record Book Ex. P-10, which was maintained by the accused, he wrote entries and notes due to fear of aging. P.W. 11, the reader in the Anatomy branch, has admitted that he has initialled in the Record Book Ex.P-8 maintained by the accused. P.W. 12 has admitted that he has initialled in Ex.P-9, Record Book, maintained by the accused. The evidence of the students and lecturers that certain entries in the note books maintained by the accused were written by the junior students and that the above Record Books were also initialled by the Reader and Lecturers are not seriously challenged by the accused.
58. The prosecution attempted to connect the above aspect of the case with the evidence relating to the enquiries made by the accused about the deceased on 6.11.96. P.W. 4, the junior student, has stated that on 6.11.96, the accused enquired him as to whether the students bearing initial ''M'' ''N'' attended the class, for which he told him that the examinations of the above students were not completed. The evidence of the above witness is vague. The above evidence will not show that the accused enquired about the deceased. P.W. 10, the Reader, has stated that the deceased did not participate in the practical examination con ducted between 2.30 and 4.30 p.m. on 6.11.96. P.W. 9, the Lecturer, has stated that the deceased attended the examination conducted between 10.30 a.m and 12.30 p.m. on 6.11.96. When his attention was drawn to Ex.P-15, the Attendance Register, he has admitted that he has put mark "A" on 5.11.96 to show that Navarasu was absent on 5.11.96. P.W. 19 has stated in his evidence that he attended the oral tests on 6.11.96 and after attending the above test, he returned to his room and that the accused came to his room between 11.30 a.m and 12.00 noon and enquired him whether the deceased had attended the practical test, for which he told the accused that the said test is not over. P.W. 20, another student, has also stated that the accused enquired about the deceased and that he told him that the deceased did not complete his test. P.W. 21, who is the resident of Room No. 56 in Malligai Hostel, has stated in his evidence that the accused used to compel the junior students to write records in his note book and that when he insisted the deceased to write the records, the deceased did not agree for the same. But P.W. 22, who is the resident of Room No. 93, has stated that he does not know whether the deceased was compelled by the accused to write records for him. The above witnesses were examined to substantiate the case of the prosecution that the accused was last seen with the deceased in the forenoon of 6.11.96. P.W. 21 has stated that when he and others were returning from the examination hall, the accused was found seated in front of the Dean''s room and that at that time, the deceased alone was called by the accused and that the accused asked P.W. 21 and others to leave from that place. To the like effect is the evidence of P.W. 22. The prosecution mainly relies upon the evidence of P.Ws 21 and 22 to show that the deceased was seen in the company of the accused before 2.00 p.m. on 6.11.96.
59. But, the learned Counsel for the Appellant contended that leading questions were put to the above witnesses and that the examination was not conducted fairly by the Public Prosecutor. On reading the chief examination of P.W. 21, it is clear that the above witness was asked to answer the question as to whether the accused asked the deceased to write records for him. As the above question carried an answer, learned Counsel for the accused contended that the chief examination was not conducted in a fair manner. The same leading question was also put to P.W. 22. But there is no indication in the deposition to show that when the Public Prosecutor put the above leading question to the witness, the same was objected by the counsel for the accused. Therefore, it is needless to embark an elaborate enquiry on the above aspect of the case. As already stated, P.W. 22 has stated that he does not know whether the accused asked the deceased to write records for him. P.W. 21 has also admitted that number of senior students used to insist the junior students to write records for them and that it is one of the acts of ragging. The evidence of P.W. 21 would clearly show that the habit of senior students asking the junior students to write records is not confined to the accused alone. On the other hand, it is shown that the above practice is followed by other senior students also. P.W. 22 has stated that the accused asked the deceased to sit in the bench. P.W. 23, the lab-attendant of the College, has stated that on 6.11.96, he saw both the accused and the deceased found talking near the dean''s room at about 12.45 p.m. or 1.00 p.m. It is significant to note that P.W. 23 has admitted that when he returned after taking meals at about 1.45 or 2.00 p.m. he saw both the accused and the deceased found talking by sitting in the bench. He has stated that he does not know the name of the deceased. Even assuming that the accused and the deceased were found talking by sitting on the bench near the dean''s room, as per the evidence of P.W. 23, it will show that the relationship between the deceased and the accused was not strained in the forenoon of 6.11.96. The very fact that the accused and the deceased were found talking from 12.45 p.m. to 2.00 p.m. in one and the same place will only negative the contention of the prosecution that the accused developed ill-feelings or grudge against the deceased on account of the refusal of the deceased to write records for the accused.
60. P.W. 25, the Senior Student, has stated in his evidence that he saw the accused and the deceased together when he went there to take his bike. He has stated that on 11.11.96, the police came to the hostel and enquired the whereabouts of Navarasu. But he would say that he was examined 15 days after Deepavali. The evidence of P.W. 25 will show that he would not have been examined by the police on 11.11.96. In cross examination, the memory power of P.W. 25 was tested. He has stated that he did not remember as to what are the classes that were conducted on 4.11.96 and 5.11.96. The evidence of the above witness would not in any way establish the case of the prosecution that the deceased was last seen with the accused only on 6.11.96. The places where the accused is alleged to have met the deceased are only College, examination hall and dean''s room etc. The above places are busy places. The fact that one student met another student occasionally would not be taken as a link to connect the accused with the offence. Unless and until it is established that the accused took the deceased to Room No. 319, after meeting the deceased near the dean''s room, the evidence of the above witness that the accused enquired about the deceased and was seen talking with the deceased at about 1.00 or 2.00 p.m. will not be considered as a crucial link in the chain of circumstantial evidence.
61. Learned Public Prosecutor contended that the accused has admitted during 313 Code of Criminal Procedure examination that he was seated in front of the dean''s room in the forenoon of 6.11.96. It is, no doubt, true that the accused has admitted that he was sitting on the bench near the dean''s room. He has stated that he did not call any student at that time. As already stated, the fact that the accused was found sitting on the bench and talking with the deceased alone cannot be taken into consideration for holding that the accused by deceitful means kidnapped the deceased to his room. At this juncture, it has to be seen whether the prosecution has established that the deceased was accosted to Room No. 319 by the accused. It is the case of the prosecution that the murder took place in Room No. 319 in the occupation of the accused. The prosecution has examined P.W. 24, the student residing in Room No. 323 to prove that the accused by catching hold of the hands of the deceased was proceeding to the hostel at 2.00 p.m on 6.11.96. But he has not supported the version of the prosecution. P.W. 26, is the resident of Room No. 325 in K.R.M. Hostel. He has stated in his evidence that he left his room at 2.30 p.m. on 6.11.96 to watch T.V. P.W. 26 has been treated as hostile. He has been examined by the prosecution to show that he saw the accused and the deceased found talking in front of Room No. 319 i.e.., the room of the accused. P.W. 26 has denied the above statement. To prove the fact that the accused took the deceased to his room, the prosecution has examined P.W. 27. P.W. 27 was staying in Room No. 325 alongwith P.W. 26. He has also been treated as hostile. It is suggested by the prosecution to the above witness that Navarasu with a rexin bag in his hand was accosted by the accused to Room No. 319. The above suggestion is denied by P.W. 27. There are no materials to show that the accused took the deceased to Room No. 319. after meeting the deceased near the dean''s room. The above circumstance is a crucial link in this case, since it is the specific case of the prosecution that the murder took place in Room No. 319.
62. The trial Court has also given a specific finding in paragraph 100 of the judgment that Room No. 319 may not be the place of murder. The trial Court has also, further, held in paragraph 118 of the judgment that the place of murder as spoken to by the prosecution could not be believed. But the Court has held that this fact instead of weakening the case of the prosecution will be a base for the charge of offence u/s 201 IPC against the accused. The trial Court has also held that it was only by deceitful means the deceased was taken away by the accused and that he is guilty of the offence under Sections 342 and 364 IPC. For coming to such a conclusion, the trial Court relies upon the evidence of the students who have stated that the accused enquired about Navarasu on 6.11.96. Relying upon the above evidence, the trial Court has held that although ordinary viewers may not attach much importance to the search, any prudent person can see through the matter in finding out the unquenchable thirst the accused had in labouriously searching for the accused unmindful of the unnecessary suspicion and slur to be cast on him by the colleagues and junior students and this coupled with his above mentioned antecedents of ragging and his character of bossism and attitude of big brother will go to indicate that his search made of Navarasu was not in the latter''s interest, but only at his detriment. It is seen that the trial Court has given the above finding purely on surmises and conjectures. The trial Court failed to note the evidence of P.W. 23. P.W. 23 has stated that he saw the accused and the deceased talking at about 12.45 or 1.00 p.m. and even after he returned from the mess both accused and the deceased were found talking at about 1.45 or 2.00 p.m. The evidence of P.W. 23 will show that both accused and the deceased were found talking in a congenial atmosphere. As already stated, there is no evidence to show that the deceased was taken by the accused to Room No. 319. If that is so, we are unable to sustain the findings given by the trial Court that the accused by deceitful means abducted the deceased to his room with an intention to cause bodily harm.
63. The main charge against the accused is that the accused murdered the deceased in Room No. 319 by severing his head and that to cause certain evidence of the offence to disappear, the accused cut and dismembered both the upper and lower limbs of the deceased and that he loaded the torso in a big suit case and the limbs in another suit case and that he put the head in a zip bag and threw the said bag in a boat canal and that while he was going in the train, he had thrown away the limbs in the river and that in Madras he removed the torso from the suit case and placed it in a bus and therefore, he is liable to be punished u/s 201 IPC. In the above charge, it is also stated that the accused went to the open terrace of the hostel and burnt blood stained clothes, bed sheet and the deceased clothes etc. The trial Court has also given a finding that although no blood was recovered from Room No. 319 on 19.11.96, which perhaps may not be so much favourable to the prosecution, the presence of the other evidence saves the same. It is, thus, seen that the connecting links in the chain of circumstantial evidence i.e., taking the deceased to Room No. 319 by the accused where the incident is said to have taken place that room are missing in this case.
64. The prosecution has examined number of students to show that on 6.11.96, the roommates of the accused went to the other place to view the cricket match between India and South Africa. From the above evidence, the prosecution wants to establish that at the time of committing murder, the room mates were not available in the room and that the students residing in adjacent rooms were also not available and that therefore, no student could have witnessed the occurrence or heard the sound from Room No. 319 and that taking advantage of the above situation, the accused would have severed the head and dismembered the limbs and packed the same in the suit cases. P.W. 37, the student residing alongwith accused in Room No. 319, has stated that he went to the house of P.W. 18 and that he returned to the room at about 11.00 p.m. P.W. 38, another room mate of the accused, has stated that he went to the T.V. room of the hostel to watch the cricket match and that he returned to his room at about 11.00 p.m. The witnesses have stated that the accused did not return to the above room during the night of 6.11.96. P.W. 17, who is residing in Room No. 321, has stated that he went to the T.V. room and that he was viewing the cricket match between 5.00 and 11.00 p.m. Though P.W. 38 has stated in his evidence that he went to the T.V. room to view the cricket match, in cross examination he has admitted that he has stated before the Magistrate that he went to his senior room to watch T.V. However, it is admitted that the above students returned to Room No. 319 on the night of 6.11.96. If really the offence of murder and cutting the body into pieces took place in the said room, the above students would have atleast sensed the blood smell. But they have not stated that they smelt any blood or noted any blood stains in the above room. That is why, the trial Court has given a finding that the prosecution failed to prove that the murder took place in Room No. 319. Even assuming that the other students went to the T.V. room to watch the cricket match till 11.00 p.m., it is highly improbable that they did not return to the room till 11.00 p.m. It is not the case of the prosecution that the offence took place during night. On the other hand, it is the specific case of the prosecution that the offence of murder took place in a busy hostel that too after 2.30 p.m. As the main link i.e., place of murder, is not proved, it has to be held that there are no materials to prove that the accused by deceitful means accosted the deceased to Room No. 319 on the afternoon of 6.11.96.
65. The trial Court relies upon the evidence of P.W. 28, the auto driver and P.W. 29, the watchman, for coming to the conclusion that on the night of 6.11.96, i.e., at about 8.00 p.m. the accused left the hostel for the railway station with two suit cases and that the accused ought to have gone to Madras and that the accused could not prove his case that on that day, he went to Trichy. It is contended by the learned Public Prosecutor that on the afternoon of 6.11.96, the deceased did not appear in the classes, which is amply proved by acceptable evidence and that the fact that the accused also left the hostel after 8.00 p.m. on the same day with two suit cases will be a clinching circumstance to connect the accused with the offence and that the above circumstance has to be considered alongwith the other evidence adduced by the prosecution. On the other hand, learned Counsel for the accused contended that the finding of the trial Court that the accused ought to have gone to Madras is not based on any legal evidence. For proper appreciation of the above contention, it would be useful to refer to the evidence of P.Ws 28 and 29.
66. P.W. 28 has stated that on the day prior to Deepavali, the accused hired his auto to go to the railway station at about 8.00 p.m and that the accused also brought two suit cases and that he took the accused to the railway station. He has admitted that 15 or 20 days after the said incident, he was examined by the police. The evidence of P.W. 28 will only show that he took the accused to the railway station. P.W. 29, the watchman of K.R.M. Hostel, has stated that about 8.00 p.m. on 6.11.96, he saw an auto in front of the main gate and that the accused emerged from the hostel with two suit cases at 8.30 p.m. The accused has admitted in his statement that at about 9.00 p.m on 6.11.96, he boarded a train at Chidambaram, which was bound for Tiruchirapalli to go to his native place, Karur and that at that time, he took his brief case M.O. 13 and that the above train proceeded to Tiruchirapalli via Mayavaram, Kumbakonam and Thanjavur and that after meeting his parents on 7.11.96, he returned to Chidambaram on 8th morning and that he was available in the hostel on 9th, 10th and 11th. The evidence of P.Ws 28 and 29 will not prove the case of the prosecution that the accused went to the railway station only to go to Madras. P.W. 30, the Station Master, employed in Chidambaram railway station, has stated that Thanjavur passenger bound for Madras would leave Chidambaram at 8.37 p.m and that on 6.11.96, the above train arrived at 9.01 p.m. and left Chidambaram at 9.05 p.m. for Madras. In cross examination, he has admitted that between 8.00 p.m. and 9.00 p.m. two trains would cross each other and that the train coming from north proceed towards south via., Chidambaram. He has admitted that students on that day travelled towards north as well as south. P.W. 30 has not asserted that no train passes through Chidambaram towards south at 9.00 or after 9.00 p.m. On the other hand, the evidence of P.W. 30 will show that between 8.00 p.m. and 9.00 p.m. two trains would cross each other at Chidambaram. As there is no evidence to show that the accused proceeded to Madras on 6.11.96 at 9.00 p.m. from Chidambaram railway station, there can be no difficulty in accepting the version of the accused that on that day, he went to his native place to see his parents. But the trial Court has observed that the accused would contend that he went to Trichy for which no supporting document was filed. The reasoning adopted by the trial Court cannot be said to be sustainable in law. It is for the prosecution to establish that the accused with his two suit cases proceeded to Madras at 9.00 p.m. The accused is not under obligation to substantiate his version beyond reasonable doubt. It is sufficient for the accused to explain the circumstances under which he went to Chidambaram railway station. It is not disputed that the parents of the accused reside in Karur. But in paragraph 119 of the judgment, the trial Court has given a wrong finding. The trial Court has observed that on the evening of 6.11.96, the purpose of visit to Madras by the accused as spoken to by P.W. 29 and P.W. 28 would be only for concealing the torso. As already stated, the evidence of P.Ws 28 and 29 do not show that the accused left Chidambaram railway station for Madras only. As already stated, the accused has given explanation as to why he reached Chidambaram railway station on 6.11.96. It is well settled that the accused is entitled to the benefit of every reasonable doubt and when the accused offers reasonable explanation of his conduct then even though he cannot prove his assertions, they should ordinarily be accepted, unless the circumstances indicate that they are false (vide Aher Raja Khima v. State of Saurashtra ( 1956 MWN (Crl.) SC 153 ). If the explanation offered by the accused is considered in the light of the evidence discussed supra, we have no hesitation in holding that the conclusions reached by the trial Court on the basis of the evidence of P.Ws 28 and 29 cannot be sustained.
67. In a case, which rests upon circumstantial evidence, the conduct of the accused subsequent to the date of the offence can be also taken into consideration. In this case, the prosecution has adduced evidence to show that on the early morning of 8.11.96, the accused returned with two suit cases M.Os 13 and 14. To prove the above aspect of the case, the prosecution has examined P.Ws 40 and 41. P.W. 40, is a resident of Room No. 323. He has stated that at about 4.30 a.m. on 8.11.96, the accused was found sleeping in front of Room No. 319 and that at 5.00 a.m. the accused was found standing in the verandah and that when he enquired the accused, the accused told him that he did not have keys of his room and that P.W. 40 told him that he could sleep in his room and that at about 5.30 a.m. the accused placed the suit cases and that at 6.30 a.m. he went to the room of one Bulga i.e., Room No. 325 and that the accused was found sleeping in the said room with the suit case M.O. 13. P.W. 41 has also stated that at about 6.00 a.m. the accused came to his room with the suit case M.O. 13 and that he slept in his room till 12.00 noon and that at about 12.45 p.m. the accused left the room with the suit case M.O. 13. Both P.Ws. 40 and 41 have stated that when the accused slept in the room with the suit case, they sensed some foul smell emanating from the room. The evidence regarding placing the suit case in the room is sought to be relied on by the prosecution to corroborate with chemical examiner''s report and serologist report. How far the evidence of P.Ws 40 and 41 could be accepted will be decided at the appropriate stage of this case. At this stage, it would be sufficient to hold that the fact that the accused slept in the rooms of P.Ws 40 and 41 on 8.11.96 will not be a circumstance to connect the accused with the offence. On the other hand, it would only show that the accused was available in the hostel on 8.11.96. The trial Court has held that the evidence of P.Ws 40 and 42 will show that the accused was in fact found in a melancolic mood without sleeping and without even urge to take lunch on 8.11.96. We fail to understand as to how the above aspect of the case will improve the case of the prosecution. The evidence of P.W. 42 will show that on 9.11.96 at about 4.30 p.m he was requested by the accused to take him to the railway station and accordingly, he dropped the accused at Chidambaram railway station. The trial Court has observed that thereafter, the accused could not be seen. But the evidence of P.W. 35 is relied on by the prosecution to show that the accused was found alongwith his mother at Chidambaram lodge on 10.11.96. The accused denied that he stayed with his mother in the above lodge. P.W. 35, the receptionist of the lodge, has stated that Dr. Ester and accused took Room No. 101 on 10.11.96. P.W. 35 was examined on 9.9.97 before the Court. He has admitted that he does not know Dr. Ester before 10.11.96. He has admitted that there is no indication to show that the accused also stayed in the said room on 10.11.96. He has also admitted that it is not his duty to verify as to who are the persons stayed in a particular room from 10 to 12 November 1996. The accused would have gone to the above room to see his mother. Therefore, it cannot be readily inferred from the evidence of P.W. 35 that the accused absconded from the hostel and stayed in the lodge on 10.11.96.
68. Learned Counsel for the accused contended that there are certain materials to show that the offence of murder would not have taken place on 6.11.96 and that the admitted materials will show that the deceased was seen alive on 7.11.96. The trial Court in paragraph 133 of the judgment considering the evidence of P.W. 66, the doctor, has held that a combined reading of the portion of his evidence would indicate the time of death as approximately 6th or 7th November 1996. For coming to such a conclusion, the trial Court has accepted the evidence of P.W. 66, whose evidence is already discussed supra. That apart, the defence relies upon the report of the Vice Chancellor, Annamalai University, which is filed alongwith the accused statement. In response to the order of Sessions Court, the Vice Chancellor has sent the report and the above report will show that the Vice Chancellor of Annamalai University has sent the report to the Governor. It is stated in the above report that the father of the deceased was informed around 10.00 p.m. about the whole thing and that he insisted upon knowing whether any one had definite information of his son being seen after 6.11.96 and that he was informed that Navarasu had been seen by one of his class mates in the mess at breakfast, later by the mess-servant at lunch and subsequently, by the Warden and Deputy Warden in the evening all on 7.11.96. It is, thus, seen that the Vice-Chancellor of the Annamalai University has gathered certain materials to show that the deceased was seen alive on 7.11.96. The prosecution has not examined the Vice-Chancellor to substantiate the averments contained in the above report even though he is cited as witness in the chargesheet. As already stated, the accused can only show probabilities and he can only show that the offence of murder would not have taken place on 6.11.96. If the averments contained in the above report of the Vice-Chancellor are true, then the case of the prosecution that the deceased was last seen alive in the company of the accused cannot be true and in the above circumstances, the theory of "last seen" on 6.11.96 would lose its significance. The trial Court has also not given a definite finding that the offence of murder took place only on 6.11.96 in Room No. 319. On the other hand, the trial Court is prepared to accept the evidence of P.W. 66 for holding that the offence of murder could have taken place either on 6th or 7th November.
69. But, it is contended by the prosecution that the prosecution has adduced satisfactory evidence to show that the deceased did not attend the class in the afternoon of 6.11.96 and that he was not seen on 7.11.96 in the hostel. It is seen from the report of the Vice Chancellor, Annamalai University that the events that occurred from 6.11.96 till 25.11.96 are stated. As already stated, the class lecturer has given absent mark stating that the deceased was absent on 5.11.96 also. In view of the above facts, it is extremely unsafe to accept the case of the prosecution that the deceased was last seen alive with the accused till the forenoon of 6.11.96 and that the deceased was in the company of the accused thereafter. As already stated, the mere fact that the accused was found talking with the deceased for about one hour by sitting on the bench will not establish the case of the prosecution that the deceased was taken by the accused to his Room No. 319 on that day. There is also evidence to show that the accused was available till 11.11.96 in the hostel and that only on 14.11.96, he surrendered before the Judicial Magistrate, Mannargudi. P.W. 42 has stated to the investigating officer, P.W. 78, that he saw the accused on 11th also. Though, P.W. 42 has stated that he does not remember the above fact, P.W. 78 the investigating officer, has admitted the said fact in cross examination. Therefore, it is clear that P.W. 42 saw the accused on 11.11.96 also in the hostel or in the town. The above facts will show that the accused did not abscond from the hostel after 6.11.96. The fact that the accused surrendered before the Court on 14.11.96 is not in any way consonance with the guilt. Unless there are other connecting links in the case, the fact that the deceased was seen with the accused in the college at a particular point of time and that the deceased was not seen thereafter would not tantamount to crucial links in the chain of prosecution case.
70. The law is well settled that if the dead body is recovered at the instance of the accused, it would be a clinching factor to connect the accused with the offence. In this case, the prosecution has adduced evidence to show that only on the basis of the confession statement given by the accused, the head of the deceased was recovered from the boat canal on 19.11.96 and that the accused gave the statement in the police station after 2.00 a.m, the admissible portion of which is marked as Ex.P-50 and that in pursuance of the said statement, the head and other materials were recovered from the boat canal. Learned Public Prosecutor contended that the prosecution has established that the head of the deceased was recovered in pursuance of the confession given by the accused. Learned Public Prosecutor also relies upon certain decisions on this aspect.
71. In State of Tamil Nadu v. Karuppusamy ( 1993 SCC (Cri) 123 ), the Apex Court has held that the confession statement made by the accused leading to discovery of severed head of the deceased and sickle are admissible u/s 27 of the Evidence Act and that the above circumstance would go a long way to corroborate the prosecution case. The facts of the above case will show that apart from the recovery of severed head, the offence was established by direct evidence of the child witness.
72. In Earabhadrappa v. State of Karnataka (1983 SCC (Cri) 447), the Apex Court has held thus: "For the applicability of Section 27 of the Evidence Act two conditions are prerequisite, namely (i) the information must be such as has caused discovery of the fact; and (2) the information must ''relate distinctly'' to the fact discovered. The word ''fact'' in the context of Section 27 means some concrete or material fact to which the information directly relates.
In
Where, in a murder charge, the Appellant (accused) had stated to the police that he would give the clothes of the deceased, which he had placed in a pit above a brickklin and thereafter, the Appellant, in the presence of witnesses, dug the pit in the brick-kiln and took out the clothes, which were identified as the clothes of the deceased, the statement of the Appellant to the police is admissible.
There can be no quarrel over the proposition of law that if a dead body or head or torso or other parts of the body are recovered at the instance of the accused, it would play a vital role in fixing the liability on the author of the confession statement. But, in this case, it is strenuously contended by the learned Counsel for the accused that the accused did not voluntarily give any statement which led to the discovery of the head and that the alleged confession statement would have been concocted by the police after grilling him for several hours and that therefore, as the confession statement itself is not admissible in evidence, the Court cannot place any reliance upon the evidence relating to the recovery of the head from the boat canal. Before proceeding to give a finding on the question whether the head was recovered from the boat canal by the investigating officer, P.W. 78, it becomes necessary to give a finding on the question whether the accused has voluntarily given the confession statement in the presence of P.W. 58.
73. It is admitted by the prosecution that the accused surrendered before the Court on 14.11.96. P.W. 32, the Head Clerk, of Judicial Magistrate, Mannargudi, has stated that the accused filed a surrender petition Ex.P-21 and surrendered before the Court on 14.11.96. Ex.D-1, is the application filed by P.W. 78 to the Court requesting the Court to handover the accused to police custody for seven days. When the accused was examined by the Magistrate on 17.11.96, the accused expressed his unwillingness to go to police custody. He has stated that he does not know anything about the missing boy. On behalf of the accused, a counter was also filed on 16.11.96 itself wherein it is stated that the accused was available for police interrogation on 10.11.96 and 11.11.96 and that the police interrogated him thoroughly on all angles and that to avoid police torture and ill treatment ,the accused voluntarily surrendered before the Judicial Magistrate, Mannargudi. The above facts will show that the accused opposed the move initiated by P.W. 78 and that he expressed his unwillingness to go to police custody. In the light of the above facts and documents, the evidence adduced on this aspect has to be examined.
74. The accused has stated in his statement that he was handed over to the police against his wish and that the S.P, A.S.P and other police officials who were there grilled him continuously till 5.00 p.m next day and that they did not give him food or water and that they did not allow him to sleep and that they wanted him to confess before the Magistrate. P.W. 78, the Investigating Officer, has admitted in his evidence that at about 1.30 p.m. on 18.11.96, he took the accused to the police station. He has also admitted that after the accused was brought to the police station he was continuously enquired by him and that during the said continuous interrogation, the accused did not reveal anything and that all of a sudden at about 1.30 a.m. on 19.11.96, the accused expressed his willingness to give a statement. The above evidence of P.W. 78 will clearly show that the accused was continuously interrogated till 1.30 a.m. on 19.11.96. P.W. 78 has admitted that he did not ask the accused as to what statement he is going to give. Without ascertaining the nature of the statement, P.W. 78 made all arrangements to bring attestors to witness the statement. P.W. 58, the Village Administrative Officer, who attested the above confession statement, has stated in his evidence that the enquiry started at 2.00 a.m. and it was completed at 5.15 a.m and that at that time, the police officials such as ASP was present. But P.W. 78 does not admit that S.P or A.S.P was present at the time when the accused was interrogated in the police station. However.
75. Learned Counsel for the Appellant/accused contended that much reliance cannot be placed upon the confession statement, if the statement was not voluntarily given by the accused. Learned Counsel for the Appellant/accused also relies upon Police Standing Orders 621 and also certain decisions. The Madras Police Standing Orders 621 states that it is open to the investigating officer to put questions to the accused as he considers necessary for the purpose of enabling him to explain or elucidate any circumstances and that the questioning should not be persistent or take the form of cross-examination nor should the accused be pressed to answer any questions or make any statement if he is unwilling to do so. It is, further, stated in the above standing order that the practice of resorting to persuasion, trickery or oppression to induce an accused person to confess or make any statement is prohibited.
76. Learned Counsel also relies upon a decision reported in Rev. Fr. Benedict v. State of Kerala ( 1967 MLJ (Cri) 569 ). In the above decision, it is held thus:
It is clear from the evidence of the investigating officer (P.W. 42) and from his report that it was by questioning the accused soon after his arrest that the investigating officer obtained information as to where the knife and the bag were. It was as a consequence of this information gathered from the statement the accused then made and not by reason of any subsequent statement made by the accused, that these articles were discovered and it is this statement alone that can be relevant u/s 27. Yet, it is of this statement that there is no evidence whatsoever. P.W. 42 does not speak to the contents of any such statement made to him by the accused and the subsequent statement amounting to a confession alleged to have been made to P.W. 42 at the spot where the body was found, and spoken to not by P.W. 42 but by P.W. 22, is inadmissible in evidence. Even the pointing out of the spot in pursuance of the previous statements alleged to have been made by the accused is little more than a repetition by sign language of the first statement, which alone can be regarded as having led to the discovery and which alone is admissible u/s 27, and of which there is no evidence. So it would appear that on a strict view of the matter even the evidence that the accused pointed out the place where the knife was subsequently discovered is inadmissible. "It is, no doubt, true that there are no materials to show that the accused was tortured by the police. However, it is established from the evidence of P.W. 78 that right from the time of the arrest, the accused was continuously enquired in the police station. P.W. 58 has also admitted that the accused started giving statement from 2.00 a.m. till 5.00 a.m. It is also established from the documentary evidence, which are referred to above, that the accused already raised objection for going to police custody. If the confession statement, Ex.P-50, is examined in the light of the above facts, there can be no difficulty in holding that the above confession state ment could not have been voluntarily given by the accused.
77. In Emperor v. Taduturu Poligadu ( 1939 MWN 133 ), this Court has held that the statement u/s 27 of the Evidence Act, must be voluntary. It is also held that where the statement has been induced, it is of no evidential value and must be excluded from consideration. In another decision reported in Chinna Papiah In Re. (1939 M.Cr.C. 282 ), the Court has held thus:
A statement made by the accused to the police after six hours persistent questioning by the latter cannot be said to have been made voluntarily. Such a practice of persistent questioning to get a statement from the accused is a flagrant violation of Rule 303, Vol. 1, Madras Police Executive Orders. Hence a statement made under such circumstances cannot be admitted in Evidence. And where the statement was followed by the production of an instrument alleged to have been used by the accused, the fact of the discovery or the production of the instrument alone will be admitted.
It is, thus, manifestly clear from the admitted facts and the principles of law laid down in the above decisions that if the statement is obtained by continuous and persistent questioning of the accused such statement must be held to be inadmissible in evidence. But the trial Court did not accept the above contention of the Appellant. The trial Court has held that when police custody is sought for, the Judicial Magistrate shall abide by Section 167 Code of Criminal Procedure and Rule 86 of Criminal Rules of Practice and that at no point of time in this case any allegation as to torture of the accused in the hands of the police was made. But the trial Court failed to take note of the fact that the accused was continuously enquired from 1.30 p.m. on 18.11.96 till 2.00 a.m. on 19.11.96. As already stated, the accused filed counter to the petition filed by P.W. 78 for taking the accused into custody. The accused has made all attempts to see that he is not handed over to police custody. P.W. 78 has also admitted that the accused was not prepared to give any statement till 1.30 a.m. on 19.11.96. If that is so, we fail to understand as to how the accused could have voluntarily given the confession statement that too at the wee hours. Having regard to the fact that the statement is said to have been obtained after persistent questioning and enquiry, that too after the accused refused to comply with the request of P.W. 78 for taking him to police custody, it has to be held that the above confession statement could not have been voluntarily given by the accused.
78. Even admitting but not conceding that the accused has given a statement covered under Ex.P-50, the prosecution must establish that in pursuance of the above statement, certain incriminating materials were recovered. It is contended on behalf of the Appellant that the portion marked as Ex.P-50 is not admissible in evidence, since the statement amount to confession of guilt. The English translation of the above statement is given below:
I have thrown the bag containing the head from the terrace into the canal and that I placed the suit cases in the room and that I had thrown the record book, pen and a brown colour rexin bag and that I have also thrown the watch, pen and a ring etc., into the canal and kept the knives and steel plates in the bureau. I would point out the head of Navarasu and his watch, chain, ring and the rexin bag which contained records and the place where the above materials where thrown and I would produce the same. I would also produce the suit cases which were used for taking the parts of the body. I would also point out the place where I have thrown the parts of the body while travelling in the train. I will also point out the place in the bus where I kept the for so.
The above admissible portion of the statement, marked by the trial Court, will show that the above statement also contained inculpatory statement. The words such as "I have thrown the head, I have kept the torso and I would produce the suit cases, in which the parts of the body were taken" are hit by Section 25 of the Evidence Act. Only the statement such as., "I would point out the place where the head and torso and other materials were hidden and produce the same" alone would be admissible in evidence u/s 27 of the Evidence Act. Therefore, the case of the prosecution regarding the recovery of the material objects has to be analysed in the above background.
79. The next crucial question that arises for consideration is whether the accused infact pointed out the rexin bag, which contained the head of the deceased. Learned Counsel for the Appellant contended that the evidence adduced by the prosecution on this aspect is tainted with certain inherent improbabilities and that the trial Court failed to consider the glaring contradictions in the evidence. P.W. 78, the investigating officer, has stated in his evidence that after the statement was recorded he was taken to the boat canal, which is situate on the south of K.R.M. Hostel and that the accused has pointed out the boat canal and that he also prepared an observation mahazar, Ex.P-115 and a sketch Ex.P-116 and that as water was flowing in the canal, he sought the assistance of the fire service department to drain water and that accordingly, he sent a letter under Ex.P-56. The evidence of P.W. 59, the fire officer, is relied on by the prosecution to substantiate their case. P.W. 59 has stated that after receipt of Ex.P-56, the requisition letter, he proceeded to the spot alongwith his fire personnel and that the depth of the water was 7 feet and that therefore, water was drained with the aid of motor pump sets and that at about 4.00 p.m. the accused was brought by the police and that the accused approximately pointed out a place in the boat canal and that at about 4.30 p.m. Sathasivam, the fire service constable, recovered a bag, M.O. 22, containing the head and that on showing the above bag to the accused, the accused has admitted that he had thrown the above bag in the canal. The evidence of P.W. 59 that the accused has admitted that he had thrown the above bag in the canal is not admissible in evidence. P.W. 59, has admitted that he reached the boat canal at about 8.30 a.m. The prosecution relies upon the evidence of P.W. 59 to show that it is the accused who pointed out the place where the rexin bag was thrown and that he has identified the above head in the presence of P.W. 59. If the evidence of P.W. 59 that the accused has pointed out the place in the canal where the bag was thrown and that it is the accused who identified the above bag after the same was taken from the river by Sathasivam are accepted, then the above circumstances would be one of the crucial links to connect the accused with the offence. But, it is seen from the evidence adduced by the prosecution that the evidence is not uniform on this aspect P.Ws. 58, the attestor to Ex.P-50, the Village Administrative Officer, has stated in his evidence that when they reached the canal at about 8.45 a.m. the accused has pointed out M.O. 3 the rexin bag and note book, M.O. 4 and that the same were recovered. It is seen that after the recovery of the other articles in the morning, the accused was taken to the hostel and in his presence, the room was searched. P.W. 78 has stated that he recovered M.Os 3 to 5 under mahazar Ex.P-51, which was prepared at 8.45 a.m. on 19.11.96. He has, further, stated that the accused was again taken to the boat canal and that the fireman Sathasivam, under the supervision of P.W. 59, took the bag from the place, which was pointed out by the accused. It has to be noted at this stage, that P.W. 78 has not stated that the accused pointed out the rexin bag and handed over to the police. P.W. 78 has also admitted that between 4.30 and 7.30 p.m. he conducted inquest on the head in the presence of P.W. 60 and other witnesses. Ex.P-120 is the inquest report. It is seen that P.W. 78 has stated that at about 7.45 p.m. he has prepared mahazar Ex.P-55 for recovery of M.O. 22 and M.O. 34. But, it is seen from Ex.P-55 that the time and date of the recovery of the head is noted as 7.45 p.m. It is seen that under the above mahazar, the bag and nylon rope were also recovered. P.W. 58, the Village Administrative Officer, has admitted in his evidence that the head was recovered at about 7.45 p.m. on 19.11.96. Further, the evidence of P.W. 58 will show that after the entire water was drained out, a bag was found and that the same was recovered, on being pointed out by the accused, under mahazar Ex.P-55. Thus, the categorical admission of P.W. 58 will show that the head would have been recovered at 7.45 p.m. on 19.11.96. The above fact is strengthened by the recitals found in Ex.P-55, the mahazar. The above discrepancy cannot be brushed aside on the ground that the difference regarding the actual time of the recovery would not affect the evidence. But the trial Court has observed that there was lot of process in the searching, drowning and finding the zip bag and the subsequent process of writing mahazar and that the process of recovery although started by 4.00 p.m. has ended only with the writing of mahazar till 7.45 p.m and that the evidence of P.W. 58 that M.O. 22 was recovered at 7.45 p.m. cannot be a material contradiction and it may at best only be an inconsequential inconsistency. It is for the prosecution to clarify the time of the recovery of the head in the re-examination of P.W. 58. It is seen that P.W. 58 was not re-examined on this aspect of the case. Therefore, we are unable to sustain the line of reasoning adopted by the trial Court with regard to the above glaring inconsistencies.
80. It is contended by the learned Counsel for the Appellant that Sathasivam, who actually made all arrangements to drain water and to take the rexin bag containing the head from the river, has not been examined. Learned Public Prosecutor contended that non-examination of Sathasivam will not affect the case of the prosecution, since the evidence of P.Ws 59 and 78 will establish that the head was recovered on information furnished by the accused. Learned Public Prosecutor also relies upon a judgment of the Supreme Court reported in Appabhai v. State of Gujarat ( 1988 SCC (Crl.) 559 )
81. The question whether the said Sathasivam is a material witness, who could unfold the events leading to the discovery of the head, would depend upon the evidence given by other witnesses. Learned Counsel for the Appellant has pointed out certain admissions made by P.W. 59 and P.W. 78 would show that the head could not have been recovered at the behest of the accused. P.W. 59 has stated in his evidence that at 4.00 p.m. the accused has pointed out the place in the boat canal and by that time water was drained to a depth of two feet and that at 4.30 p.m. Sathasivam retrieved the bag and that when the above bag was shown to the accused, he has admitted that he has thrown the above bag. The above evidence of P.W. 59 is not admissible in evidence. If really there is any truth in the version of P.W. 59 that the head with rexin bag was recovered only when the accused pointed out the place, P.W. 59 would have corroborated the evidence of P.Ws. 58 and 78 with regard to the recovery of the other objects prior to the recovery of the skull. It is the admitted case of the prosecution that at about 8.45 in the morning, M.O. 3, the rexin bag and note book, M.O. 4, were recovered under mahazar Ex.P-51 and that thereafter, the accused was taken to KRM Hostel for the purpose of conducting search in the rooms. P.W. 58 has stated in his evidence that they proceeded to the boat canal at 6.00 a.m. P.W. 78 has stated that on reaching the spot and after preparing the sketch, he sent intimation to the Fire Officer to drain out water from the canal. The above letter Ex.P-56 was prepared at 7.30 a.m on 19.11.96. P.W. 78 has also stated that at 8.45 a.m. M.Os 3 to 5 were recovered at the instance of the accused. P.W. 59 has also admitted that after they received letter Ex.P-56, they proceeded to the spot at 8.30 a.m. But, P.W. 59 has not corroborated the evidence of P.Ws 58 and 78 that at 8.45 a.m. M.Os 3 to 5 were recovered at the instance of the accused and that the above objects were pointed out by the accused.
82. P.W. 59 has admitted that he was present from 8.30 a.m. in the boat canal. But he could not say whether the accused was present at that place from 8.30 a.m. to 4.00 p.m. He admits that police officials were present during the above time. He has also admitted that till 4.00 p.m. on that day, they were searching for the skull in the canal. He has, further, admitted that the skull was recovered from the place pointed out by the accused and that prior to that, he did not point out any other place. Even though, P.W. 59 was present during draining water from the canal, he could not say whether the accused was present from 8.30 a.m. till 4.00 p.m. and he could not say whether any other articles were recovered at the instance of the accused after 8.30 a.m. It is significant to note that P.W. 59 has not even stated in the report sent to his superior officer that the accused has pointed out the place in the canal from where the skull was recovered. P.W. 59 has admitted that he sent the report immediately to his superior officer. But, he would say that they would not write in the report that the skull was recovered at the instance of the accused at 4.30 p.m. and that they have stated that the skull was recovered from a particular place. He has also admitted that Sathasivam has sent the report to the Office. As already stated, the recovery of a human head from the canal is a cruicial link to fasten the liability on the accused. As P.W. 59 has not stated that the other material objects were recovered at 8.45 a.m. and as he could not say whether the accused was present at that place before 4.00 p.m. much reliance cannot be placed upon his evidence for holding that the skull with bag M.O. 22 were recovered only when the accused pointed out the said place. If the prosecution had examined Sathasivam and filed his report sent to the Officer, it would have been possible to ascertain the fact whether the above material objects were recovered only at the instance of the accused. It is in this context, the evidence of Sathasivam, who would have unfolded the facts regarding the recovery of the skull, would be material. Hence, we have no hesitation in holding that non-examination of Sathasivam and the fact that the report sent by him is not filed, will only probablise the case of the defence that the above skull would not have been recovered at the time and manner alleged by the prosecution.
83. There are certain other materials to show that the skull would not have been recovered at the instance of the accused. P.W. 60 is the relation of P.W. 1. It is stated that he was present at the boat canal when the search was conducted. P.W. 60 has stated that the accused produced note books and the bag M.Os 3to 5 from the bund of the canal and that the first page in M.O. 4 is written by Navarasu. But, he has not stated that the skull was recovered from the place pointed out by the accused. On the other hand, he has stated that at 4.30 p.m. he identified the skull, retrieved by the Fire Officer from the canal, as that of Navarasu and that at that time, the accused was present. He has not stated that the place from where the alleged skull was recovered and M.O. 22 were identified by the accused. The above material omission in the evidence of P.W. 60 will only probablise the defence version that the accused would not have pointed out the place in the canal where the alleged skull was said to have been found. If really the place from where the skull was retrieved was pointed out by the accused, P.W. 60 would have stated the said fact, especially when he was present at the place from 8.00 a.m. till 4.00 p.m. on that day.
84. It is not in dispute that P.Ws 37 and 38 are room-mates of the accused. P.W. 78 has admitted in cross examination that P.W. 60 and co-students identified the skull as that of Navarasu. P.W. 78 has also admitted that when the skull was recovered P.Ws 37 and 38 were also present there. But P.Ws 37 and 38 have not stated in their evidence that the accused pointed out the place from where the skull was recovered. P.W. 78 is said to have conducted inquest between 4.30 and 7.30 p.m. P.Ws 37 and 38 have not whispered anything about their presence at the boat canal and identifying the skull by the accused. P.W. 78 is said to have completed the inquest by 7.30 p.m. If that is so, he could not have recovered the head under mahazar Ex.P-55 at 7.45 p.m. The above contradictions cannot be brushed aside. In the above circumstances, it is doubtful whether the skull could have been recovered from the place pointed out by the accused. In other words, we are unable to place reliance upon the evidence of P.Ws 58, 59 and 78 for holding that the accused has pointed out a particular place in the canal and that the skull was recovered only at the instance of the accused.
85. It is suggested to P.W. 78 that the place where the skull was found in the canal was already known to the police department and that therefore, they obtained custody of the accused during holidays and enacted a drama as though the place in the canal was identified by the accused and that all the documents were prepared only to fasten liability on the accused. Ex.P-56 is the letter sent by P.W. 78 to the Fire Service Department. It is stated in the above letter that they came to know from the statement of the accused that the head of the missing person was thrown in the boat canal on the southern side of the hostel and that therefore, the water has to be drained out to enable them to recover the head. It is, thus, clear that even before the accused and P.W. 78 proceeded to the spot P.W. 78 was aware of the fact that certain material objects are hidden in the canal on the southern side of KRM Hostel. Thereafter, P.W. 78 took the accused and the witnesses in the morning and after recovery of certain note books, the accused was taken to the hostel and after searching the room, again the accused was taken to the boat canal at 4.00 p.m. and that inquest report and other documents were prepared thereafter. The investigating officer, P.W. 78, is alleged to have recovered the suit cases and other objects and blood stained cement floor on 19.11.96 from room Nos. 323, 325 and 319. The investigating officer has started investigation even on 10.11.96. P.W. 78 has admitted that he suspected the accused as the culprit after examining the students on 11.11.96. He has admitted that even on 12.11.96 and 13.11.96, he went to Room No. 319. He has also admitted that he has examined P.Ws 37 and 38 in Room No. 319 on 13.11.96 P.Ws 37 and 38 have stated that the accused returned to the hostel on 8.11.96 after Deepavali. They also admitted that they were examined by the police on 13.11.96. P.W. 78 has admitted that he examined the students on 11.11.96. When P.W.78 came to know from the evidence that the accused was found with suit cases in Room No. 323 and 319 even on 8.11.96, he could have recovered the suit cases and material objects between 12.11.96 and 14.11.96. The very fact that all the material objects were recovered only on 19.11.96 that too after taking the accused to police custody, will only strengthen the plea of the defence that the alleged head would not have been recovered in the manner and time alleged by the prosecution. The possibility of preparing all the documents at one and the same time cannot be ruled out, in view of the inconsistencies pointed out above.
86. It is admitted that the accused was reluctant to give a confession to the police. The accused expressed his reluctance for handing over himself to police custody by filing a counter in the Court. Against the consent and will of the accused, he was given to police custody. It is also proved that the accused did not volunteer himself to give a confession statement and after prolonged enquiry and grilling the accused from 1.30 p.m. on 18.11.96 till 2 a.m. on the next day i.e., 19.11.96, some statement was recorded by the police. It is also proved that the accused has not subscribed his signature to the above statement. It is admitted by P.W. 58 that the accused was continuously enquired from 2.00 a.m. till 5.00 a.m. on 19.11.96. It is in the light of the above circumstances, we have analysed the evidence adduced by the prosecution regarding the recovery of the skull and other material objects. If the inconsistencies and improbabilities noted above, regarding the recovery of the skull, are considered alongwith the above circumstances, in recording the confession statement, we have no hesitation in holding that the alleged skull would not have been recovered in the manner as alleged by the prosecution.
87. The prosecution has adduced evidence to show that M.Os 3 to 5 were recovered at 8.45 a.m. and that the accused pointed out the above place. P.W. 60 has identified the above objects. He has stated that certain entries are written by Navarasu in the note book. P.W. 59 does not corroborate the evidence of P.W. 60 on this aspect. P.W. 60 has stated that the above note books were found on the bunds of the canal. The recovery of some note books from the canal will not connect the accused with the offence. Ex.P-51 is the mahazar for recovery of M.Os 3 to 5, which would show that a hand bag, a long size note book and an unruled note book were recovered. As already stated, there is no evidence to prove that the deceased was taken by the accused to Room No. 319 on the afternoon of 6.11.96. In the absence of any other connecting materials, the recovery of the above material objects from the canal would not be a link to connect the accused with the offence.
88. The prosecution also relies upon the evidence relating to the recovery of M.Os 13 and 14 the suit cases and other material objects to connect the accused with the offence. The evidence of P.W. 78 on the above aspect has already been discussed in the earlier portion of this judgment. The evidence will show that at 1.45 p.m. M.Os 9 to 11 and M.Os 13 and 14, the suit cases, and M.O. 15, the banian, were recovered from Room No. 319. The evidence of P.W. 78 and the mahazar Ex.P-53, will show that blood stained cement floor and ordinary cement floor were extracted from Room No. 323. The mahazar Ex.P-54 and the evidence of P.W. 78 will show that blood stained cement floor and ordinary cement floor were recovered from No. 325. All the above material objects were sent to the chemical examiner, P.W. 64. Ex.P-69, the serologist report, would show that one knife, suit cases and two other objects contained human ''A'' group blood. The cement plasters were also sent for chemical examination. Ex.P-100 is the letter sent to the Forensic Science Department. The group blood is not noted as against the plaster pieces. But as regards Item-15, plaster piece, it is stated that it contains human ''A'' group blood. The trial Court places much reliance upon the above evidence. The trial Court has held that M.Os 13 and 14 contain human ''A'' group blood and that the serologist report Ex.P-69 also mentions that M.Os 13 and 14 contain human ''A'' group blood and that the blood group of the deceased is ''A'' group. The above findings of the trial Court are assailed by the Appellant/accused on several grounds.
89. In the mahazar Ex.P-52, though it is stated that the banian contained blood stains, it is not stated that the suit cases also contained blood stains. As already stated, P.W. 78 has visited the above rooms even before 19.11.96 on several dates and he also examined P.Ws. 37 and 38. At that time, the above material objects were not recovered P.Ws. 37 and 38 were residing in Room No. 319. In the above circumstances, we are unable to understand as to why P.W. 78 has recovered the knives and suit cases and other objects, M.Os 9 to 14 only on 19.11.96. It is not shown that the students residing in the room smelt the presence of any blood stains in the room till 19.11.96. If that is so, it is highly improbable that P.W. 78 all of a sudden recovered blood stained cement floor from Room Nos. 323 and 325 on 19.11.96. When P.Ws 37 and 38 and other students were readily available even before 19.11.96 in Room No. 319, and other rooms 323 and 325, nothing prevented P.W. 78 from recovering the blood stained cement floor under a mahazar, especially when he suspected the involvement of the accused in the offence even on 11.11.96. It has to be noted at this stage that the accused contended that M.O. 14 belongs only to P.W. 37.
90. The blood stained cement floor and ordinary cement floor are said to be recovered from Room No. 319 on 27.11.96. P.W. 78 has stated that the accused again gave a statement on 27.11.96 and that in pursuance of the same, he recovered M.Os 47 and 48, the blood stained cement floor and ordinary floor. P.W. 78 has admitted that he did not see any blood stains in Room No. 319 when he visited the room on 19.11.96 and that at that time, the forensic scientist also accompanied him to the above room. If really any blood stains are inbedded in the cement floor, it could have been detected by the scientist even on 19.11.96. The above evidence will only show that the recovery of blood stained cement floor from Room No. 319 on 27.11.96 The trial Court has also observed that if really Room No. 319 was the place where decapitation was made, spurting of blood could never be avoided and that in the absence of specific evidence that the accused has washed away the room, we have to expect remnants of blood not only on the floor, but also on the wall and that while the police could not recover anything on the earlier occasion i.e., on 19.11.96, the allegation that they have done so on 27.11.96 could never be believed. In view of the above finding, no reliance could be placed on the blood stains found in M.Os 47 and 48. It is seen that the above evidence has been fabricated by the police. The prosecution has also adduced evidence to show that the material objects recovered on 19.11.96 were identified by the witnesses in the presence of the Magistrate. The above evidence will not help the case of the prosecution in any way, since M.Os 13 and 14 and blood stained cement floors would not have contained any blood stains on the day when the occurrence is said to have taken place in Room No. 319. The blood stains found in the banian recovered from room No. 319 would not connect the accused with the offence, since the blood group of the accused was not identified.
91. It is, further, contended by the learned Counsel for the accused that the prosecution failed to adduce any evidence to show the place where the bloodstained articles were kept and that unless it is shown that the above articles were kept under a seal, much reliance cannot be placed upon the evidence of the chemical examiner. In support of the same, he also relies upon the decisions reported in
92. It is the case of the prosecution that in pursuance of further statement given by the accused, M.O. 1, the chain was recovered. P.W. 78 has stated in his evidence that when the bushes in the canal were removed and cleared, they found M.O. 1, the gold chain, which belonged to the deceased and that the same was recovered under Ex.P-123 on 27.11.96. The trial Court has held that it is unnatural on the part of the person like the accused to have separated the gold chain and thrown it at a different place and that when there is a chance of planting the gold chain into the bank of the boat canal it is unsafe to conclude that the chain was recovered from the boat canal. Therefore, it is clear that the trial Court has not believed the evidence of P.W. 78 on this aspect of the case.
93. The prosecution has adduced evidence to show that M.Os 16 to 19 were utilised for wrapping the torso. It is seen that the above articles were sent for the opinion of the chemical examiner. The trial Court has held that the above report does not show that the objects M.Os 17 and 19 contain ''A'' group blood. The trial Court has also given a finding that had it been really wrapped over the torso, ''A'' group blood could have been found on it. Regarding the limbs, the prosecution has adduced evidence to show that it was wrapped by the bed sheet, M.O. 21, belonging to the accused. The trial Court has given a finding that it is not proved that it contained any blood at all. It is, thus, seen that the case of the prosecution that the accused utilised the above material objects for wrapping the torso and limbs, has not been accepted by the trial Court. In view of our finding regarding the recovery of M.Os 13 and 14 the blood stained cement plasters, the evidence of P.Ws 40 and 41 that the accused arrived at the hostel on the morning of 8.11.96 and placed the above suit cases in the rooms till certain time would not be a clinching circumstance to connect the accused with the offence. The accused has admitted that only M.O. 13, the suit case belongs to him and that M.O. 14, belongs to his roommate Raja Chidambaram. The accused has denied the evidence of P.Ws 40 and 41 that the accused was found with the suit case in the early morning of 8.11.96. If really the cement floor contained any blood after M.Os 13 and 14 were placed in Room Nos. 323 and 325, it would have been washed away while cleaning the room. It is highly improbable that the blood stains were found on the floor from 8.11.96 till 19.11.96. The above inherent improbability itself is sufficient to throw the case of the prosecution that the serologist report would connect the accused with the offence.
94. Learned Counsel for the Appellant/accused strenuously contended that the prosecution has produced weapons M.Os 9 to 11 in support of their case that the accused with the aid of the above weapons severed the head, torso and limbs in Room No. 319 at the time of the occurrence. It is admitted by P.W. 37, the student residing in Room No. 319 alongwith the accused, that the above weapons were used for cutting fruits and that he would not take the above weapons to anatomy class. When the attention of P.W. 66, the Police Surgeon and Professor in the Department of Forensic Medi cine, was drawn to the above fact, he has stated that severing of the head and removal of the muscles and nerves of the limbs could have been done by M.Os 9 to 11. He has stated that M.Os 9 to 11 were shown to him during investigation and that none of the knives has any teeth like a saw and that it has no serrated edges and that they have got only sharp cutting edges and that M.Os 9 to 11 are light weapons. He has also admitted that M.Os 9 to 11 could have been used many times for cutting the muscles and soft tissues up to the bone level. It seems the above witness has demonstrated by showing that M.O. 9 might have been used to cause a particular type of injury and on repeated application of the knife at the same site the injury could have been expanded and enlarged and in such a case there can be a clean cut injury. The above evidence of P.W. 66 will show that light weapons like M.Os 9 to 11 could not have been utilised for severing the head, cutting the bones, limbs and nerves. The evidence of P.W. 66 that M.Os 9 to 11 should have been used many times for cutting the muscles and tissues upto the bone level itself will show that it would not have been a very easy task for the assailant to utilise the above small and light weapons to commit such a brutal crime by dismembering the parts of the body. This takes us to the next question, whether the discovery of torso and limbs would connect the accused with the offence?
95. The trial Court has given a finding that there is no direct evidence to hold that the accused alighted at Tambaram and placed the parcel containing torso in the bus (Route No. 21-G) at Tambaram and that the fact that M.Os 13 and 14 contained blood may not go to draw a remote hypothesis that the accused carried the parcel of the torso to Madras and dropped at Tambaram. The trial Court has also given a finding that there is no satisfactory evidence to hold that it was directly the accused who had thrown the limbs somewhere while in transit to Madras so as to reach at Marakanam. But the trial Court has held, on the basis of the other circumstances, that it was the accused who had severed the head of the deceased and thrown it in the boat canal and that therefore, the accused might have been in possession of the torso and that similarly, there is no evidence to show that while the accused was in transit to Madras, as proved by the evidence of P.Ws 28 and 29, he has thrown the limbs somewhere so that they could reach Konimedu or that he has caused the same to be done by somebody else and that one among the above two courses is quite certain and that it is not as if that the accused did not had any hand in concealing the torso and limbs. As already stated, the evidence of P.Ws 28 and 29 was not properly appreciated by the trial Court P.Ws 28 and 29 have stated that the accused proceeded to Chidambaram railway station. From the above fact alone, it cannot be readily inferred that the accused travelled to Madras on that day. On the other hand, the accused has stated that he had gone to his native place at Karur. As already stated, one has to board a train bound for Trichy via., Chidambaram. When there is no indication in the evidence of P.Ws 28 and 29 that the accused travelled to Madras only on that day, the findings given by the trial Court that the accused had a hand in concealing the torso and limbs cannot be sustained.
96. It is contended by the accused that the length of for so is 30 inches and that it was said to be tied with M.Os 16 to 20 and that the breadth and length of the above items would have added a little more and that the length of the suit case M.Os 13 is only 21 inches. Therefore, it is highly improbable that that torso would have been parcelled in the above suit case. P.W. 78, the investigating officer, has admitted that the length of M.O. 13 is 21 inches. Ex.P-52 the mahazar will show that the length of M.O. 13 is 21 inches and its diameter is 24 inches. If the above measurements are considered, it can be reasonably held that torso could not have been parcelled in the suit case M.O. 13. But the trial Court has observed that even if the torso is bigger than the box, cutting made upon the vertebra would make it to give a folding so as to contain in the suit case. It is not clear as to how the trial Court has come to such a conclusion. The above finding of the trial Court has to be rejected on the ground that it is based on some speculation. It is the admitted case of prosecution that the limbs were recovered at Konimedu, which is 70 kms away from Cuddalore. As there are no materials or connecting links to show that the accused carried the above limbs in the suit cases, the recovery of the above limbs would not be a link to complete the chain of circumstantial evidence. Further, the evidence adduced by the prosecution to show that M.Os 13 and 14 contained human ''A'' group blood is not shown to be true and reliable. The police officials who are very keen to realise the fruition of their efforts seem to have manipulated and fabricated certain objects such as., blood stained cement plasters in Room Nos. 323 and 319 etc. and planted M.O.I in the canal. As already stated, P.W. 78 had suspicion on accused even on 11.11.96. He already inspected the rooms even before 19.11.96. If the suit cases were recovered on 11.11.96 or 12.11.96 and sent for chemical examination, it would have rendered the case of the prosecution probable and believable to some extent. Therefore, we have no hesitation to hold that the prosecution miserably failed to prove that it is the accused who severed the head in Room No. 319 and threw the same in the boat canal from the open terrace of the hostel and that he placed the torso in the bus(Route No. 21-G) at Madras and threw the limbs in the canal or sea. As crucial links are missing in the chain of circumstantial evidence, it is not safe to accept the case of the prosecution that certain material objects were recovered, pursuant to the confession statement given by the accused.
97. Learned Public Prosecutor relies upon certain decisions and contend that the prosecution has established that the accused was last seen with the deceased and that the above evidence was not properly explained by the accused and that if the above evidence is considered alongwith the recovery of the head, it will prove the guilt of the accused. We are unable to accept the above argument advanced by the learned Public Prosecutor. It is no doubt true that the Court is empowered to draw certain presumptions. It is also true that false explanation given by the accused with regard to certain piece of evidence may serve as an additional link in the chain of circumstantial evidence. To appreciate the above contention, it would be useful to refer to the following decisions relied on by the learned Public Prosecutor. In
98. In
99. In appreciating the evidence adduced in a case which rests on circumstantial evidence, learned Counsel for the Appellant/accused relies upon a decision reported in Shankarlal G. Dixit v. State of Maharashtra (1981 SCC (Cri) 315) wherein it is held thus:
Our judgment will raise a legitimate query: If the Appellant was not present in his house at the material time, why then did so many people conspire to involve him falsely? The answer to such questions is not always easy to give in criminal cases. Different motives operate on the minds of the different persons in the making of unfounded accusations. Besides, human nature is too willing, when faced with brutal crimes, to spin stories out of strong suspicions. In the instant case, the dead body of a tender girl, raped and throttled, was found in the Appellant''s house and instinctively, everyone drew the inference that the Appellant must have committed the crime. No one would pause to consider why the Appellant would throw the dead body in his own house, why would he continue to sleep a few feet away from it and whether his house was not easily accessible to all and sundry, as shown by the resourceful Shri. narayan Shanna. No one would even care to consider why the Appellant''s name was not mentioned to the police until quite late. These are questions for the Court to consider.
100. We have given our anxious consideration to several factors and arguments advanced by the learned Counsel for the Appellant and the Public Prosecutor. We hold that the circumstantial evidence placed by the prosecution is not sufficient and satisfactory to prove beyond reasonable doubt that the accused committed the offence. As already stated, many crucial links are missing in the chain of circumstantial evidence. It is not established that the accused took the deceased into the room and assaulted him and that when he was unconscious, he severed his head, limbs and nerves and parcelled the above objects in two suit cases and that he had thrown the skull from the open terrace into the boat canal and carried the torso to Madras. It is highly improbable that the above acts of severing and cutting the body would have been done in Room No. 319. For the above reasons, we hold that the prosecution is not able to substantiate the charges levelled against the accused.
101. Learned Counsel for the Appellant/accused contended that as the accused was below the age of 21 years and above the age of 16 years, the trial Court, in any event, ought to have invoked the provisions of Borstel Schools Act. It is needless to give any finding on the above question, since the charges levelled against the accused are not established beyond any doubt.
102. It is no doubt true that this is one of the brutal crimes committed recently. The son of the Vice-Chancellor is the victim of the gruesome episode. The crime was committed in a most horrendous manner. But we are unable to fasten liability on the accused for the death of son of P.W. 1. Though the offence was committed in a horrendous manner, it is hazardous to convict the accused on the basis of the evidence placed by the prosecution. The trial Court without considering many vital aspects of the case and improbabilities available in the evidence has convicted the accused. We are unable to agree with the reasons assigned by the trial Court in convicting the accused. Therefore, we hold that the accused is entitled to be acquitted of all the charges.
103. In the result, the criminal appeal is allowed. The conviction and sentence imposed on the accused are set aside. The accused is ordered to be released forthwith, unless his presence is required in any other case. The fine amount, if any paid by the accused, is ordered to be refunded to him.
