M. Jeyapaul, J.@mdashThe sole accused, who was convicted for offence u/s 364 of the Indian Penal Code and sentenced to undergo life imprisonment with fine of Rs. 5000/= in default to undergo three months rigorous imprisonment, convicted u/s 392 read with Section 397 of the Indian Penal Code and sentenced to undergo 7 years rigorous imprisonment with fine of Rs. 5000/= in default to undergo three months rigorous imprisonment, convicted u/s 302 of the Indian Penal Code and sentenced to life imprisonment with fine of Rs. 10,000/= in default to undergo three months rigorous imprisonment and also convicted u/s 201 of the Indian Penal Code and sentenced to undergo 5 years rigorous imprisonment with fine of Rs. 5000/= in default to undergo three months rigorous imprisonment, moves the present appeal.
2. On the side of the prosecution, P.Ws.1 to 24 were examined and Exs.P1 to P34 and M.Os.1 to 34 were marked.
3. The sum and substance of the case of the prosecution as unfolded by the witnesses examined reads as follows:
(i) The accused Vasanth Kumar alias Vasanth was serving as Manager in Progressive Polymer Company run by PW11 Sherenik Mehta. PW9 Kumaresan was working as Supervisor in the said Company. PW3 Shanthilal is the father and PW2 Manju Bora is the wife of the deceased Suresh Bora. PW1 Vishal was the Manager of Mitalal Jewellers carried on by the deceased Suresh Bora. PW4 Arokyasamy was also working in the jewellery shop of the deceased.
(ii) The deceased Suresh Bora had abiding faith in God. He used to often visit Perumal Temple at Thyagaraya Nagar and Amman Temple at Thiruvakkarai. Suresh Bora frequented Amman Temple at Thiruvakkarai. He developed close acquaintance with the accused Vasanth Kumar alias Vasanth. Vasanth is the son of Archagar in Amman Temple at Thiruvakkarai. In fact, Suresh Bora would not venture to do anything without consulting the accused. The accused had come to the house of the deceased many an occasion.
(iii) In the morning on 14.2.2007, Suresh Bora informed PW2 Manju Bora and PW3 Shanthilal that he had a proposal to go over to the temple. He also informed them that the accused had come down to Chennai. Suresh Bora asked PW4 Arokyasamy to purchase raw materials required for performing pooja as he had a proposal to go to the Perumal Temple at Thyagaraya Nagar at about 6.30 pm on 14.2.2007. He purchased all the required materials for performing pooja and handed over to Suresh Bora. PW1 Vishal would speak to the fact that once in three months Suresh Bora used to take cash and jewels to the temple for performing pooja by putting those articles under the feet of God and get them back after performing pooja rituals. On 14.2.2007, at about 6.00 pm, PW1 kept a bag containing cash and another bag containing jewels in Maruti 800 car bearing registration No. TN 09 AM 5139. Thereafter, Suresh Bora, having informed PW1 that he was proceeding to Venkateswara Temple at Thyagaraya Nagar, left his shopping premises at 6.30 pm on the same day.
(iv) Suresh Bora did not return to the shop till about 8.30 pm on the said day. As he did not return till the shop was closed, PW1 tried to contact Suresh Bora through the mobile phone No. 9841097155 possessed by Suresh Bora. There was no response to the call given by PW1. The friends and relatives of Suresh Bora also enquired as to why Suresh Bora had not returned home. PW2 also attempted to contact her husband over phone, but, there was no response from him. At about 9.30 pm on the said day, she contacted the accused over phone, but, the latter did not properly answer. She again tried to contact her husband over phone, but, there was no response from him though the telephone was ringing.
(v) PW1 contacted his Advocate Mr. Govindaraman and informed him about the missing of Suresh Bora. He proceeded to Sembiyam Police Station at about 10.00 am on 15.2.2007 and gave the complaint, Ex.P1 to PW2, Inspector of Police Mr. Sivamani. He registered a case in Crime No. 418 of 2007 as a case of man missing and prepared printed FIR, Ex.P29. He took up the case for investigation. He examined PW1 and Arokyasamy and recorded their statements. He constituted a separate team for the purpose of detecting Suresh Bora.
(vi) PW16 Uthrapathy, Sub Inspector of Police, who was entrusted with the job of searching the missing Suresh Bora got furtive information about parking of Maruti Car bearing registration No. TN 09 AM 5139 at the Car Parking slot of Apollo Hospital. At about 2.30 am on 16.2.2007, he proceeded to the said premises and having found that Suresh Bora was lying dead in between the front and back seat of the Car, passed on information to PW24.
(vii) PW22 Sudhakar took photographs, Ex.P27 series of the dead body in the Maruti 800 car found in the parking slot of Apollo Hospital, Chennai.
(viii) PW24 rushed to the Parking Slot of Apollo Hospital, Chennai. He prepared observation mahazar, Ex.P4 in the presence of PW5 Goutham. He also drew rough sketch reflecting the scene of occurrence. He also conducted inquest on the dead body of Suresh Bora between 3.30 pm and 5.30 pm on 16.2.2007 and prepared inquest report, Ex.P31. He examined PW2 Manju Bora, PW3 Shanthilal Bora, Pinkie and Ashis and recorded their statements. Based on the information furnished by the wife of the deceased, he converted the case into one u/s 302 and Section 379 of the Indian Penal Code. He prepared altered express report, Ex.P32 and despatched the same to the learned Judicial Magistrate.
(ix) PW19 Dr. Udayasankar, having received requisition, Ex.P23 from the Inspector of Police, PW24 through PW15 Logananthan, Head Constable, commenced post mortem examination on the dead body of Suresh Bora at 1.30 pm on 16.2.2007 and found the following external and internal injuries on the dead body of Suresh Bora:
External injuries:
Face bloated & green in colour (2) Bleeding from the nose (3) Lips swollen & (n.c) (4) Blisters over the face, Chest, both hands, abdomen, back, trunk. Skin peeled off at some places & green in colour. (6) Scrotum & Penis swollen (7) Both eyelids swollen & chemosed. (8) Laceration injury below the left knee 7x3 cm.
Internal injuries:
Sub Scalp clots seen throughout the scalp. Brain: Liquefied. Heart: Normal. Lungs: Both lungs cyanosed & blue in colour. Larynx & Traches: Normal. Stomach: 200 gms partly digested food particles present. (Almond smell), stomach mucosa eroded & congested. Hyoid Bone: Intact. Liver, Spleen, Kidney: Normal C/s � congested. Bladder: empty. Pelvis, Spinal column: Normal & intact. Scalp: Sub-scalp clots seen throughout the scalp. Brain: Liquefied.
He, having preserved the viscera for test, expected toxicology report to give his opinion. The post mortem report issued by him was marked as Ex.P22.
(x) PW15 Loganathan, Post mortem constable seized M.O.3 pants, M.O.4 shirt, M.O.5 banian and M.O.6 jetty from the dead body of Suresh Bora after the post mortem examination was over and entrusted the same to PW24 Inspector of Police for the purpose of investigation.
(xi) PW24 arrested the accused on 16.2.2007 near Central Railway Station in the presence of PW7 Rajesh and PW8 Dharmichand. A sum of Rs. 3,00,000/= was seized from his person. On the basis of the admissible portion, Ex.P10 in the confession statement given by the accused, PW24, alongwith the witnesses and accused, proceeded to the house of PW9 Kumaresan at Pondicherry and recovered from his house a sum of Rs. 27,00,000/= and gold ornaments M.O.8 series to M.O. 12 series and M.O.13 to M.O.23 under relevant seizure mahazar in the presence of the very same witnesses. A black colour bag, M.O.1, brown colour bag, M.O.2, plastic container two in numbers M.O.28, J.Mitalal Purse M.O.29, Cloth Purse with four chambers M.O.30, another cloth purse with three chambers M.O.31 and Velvet Cloth bag M.O.32 were also recovered under relevant seizure mahazar in the presence of the very same witnesses.
(xii) PW24 also recovered Maruti Esteem Car bearing registration No. PY-01-E 459 and two cyanide Pellets in a small plastic cover found in the dashboard of the said car under relevant seizure mahazar in the presence of the very same witnesses. The accused was, thereafter, remanded to judicial custody. The material objects were also despatched to the custody of the court.
(xiii) PW24 filed necessary petition to take police custody of the accused. Police custody of the accused was granted on 27.2.2007. PW24 interrogated the accused. On the basis of the disclosure made by the accused, PW24 proceeded to Janakipuram Village and recovered Nokia Camera Cellphone from a thorny bush near the main road over there in the presence of PW13 Santhosh Kumar and another witness under recovery mahazar.
(xiv) The accused also took PW24, PW13 and another witness to his house at Thiruvakkarai and produced checked necklace M.O.24 and the same was recovered by PW24 under relevant recovery mahazar. He also recovered two cell phones produced by the accused from his house under relevant seizure mahazar, Ex.P33.
(xv) PW10 Usman sold three cyanide pellets for a sum of Rs. 27/= to PW14 Senthil on 13.2.2007. PW14 procured those three cyanide pellets from PW10 on 13.2.2007 as per the request made by the accused who was his friend and classmate and entrusted to the accused. PW24 examined those two witnesses and recorded their statements.
(xvi) The accused was, thereafter, remanded to judicial custody on 28.2.2007. PW21 Mr. Vijayakumar, learned Judicial Magistrate recorded the statements of PW1 and PW11 u/s 164 of the Code of Criminal Procedure on the basis of the requisition made by PW24. PW23 Mr. B.Haridoss, learned Judicial Magistrate also recorded the statements of PW9 and PW14 u/s 164 of the Code of Criminal Procedure as per the requisition made by PW24.
(xvii) PW17 Mallika, the Forensic Sciences Expert has opined in her report Ex.P18 that there was 350 mg cyanide found in the intestine sent for examination. She has also opined in her report, Ex.P19 that the pellets alleged to be cyanide pellets recovered from the Maruti Esteem Car were also found to be cyanide pellets.
(xviii) PW12 Arvind Kumar, Junior Executive Engineer attached to Aircel furnished Cellphone particulars, Ex.P14. PW24 also received a report, Ex.P34 from BSNL Engineer. Having completed the investigation, PW24 filed final report as against the accused before the learned Judicial Magistrate on 11.5.2007.
(xix) The incriminating portions found in the testimony of the witnesses examined on the side of the prosecution were putforth to the accused in the form of questionnaire u/s 313 of the Code of Criminal Procedure. The accused has submitted that the deceased used to come to Thiruvakkarai Temple frequently; PW2 did not make a call to him at about 9.00 to 9.30 pm on 14.2.2007; the family of the deceased was known to him for the past five years; he paid visits to their house on two occasions; the deceased Suresh Bora used to discuss all matters with him; the deceased Suresh Bora, having searched him in Thiruvakkarai Temple, came to his paternal uncle''s house at about 11.30 pm on 14.2.2007 to see him; the deceased handed over a jewel bag and cash bag to be kept with him and thereafter he left; he informed this fact to PW11 at about 1.30 am on 15.2.2007. He thereafter, passed on the said information to Pinkie the daughter of the deceased over phone; it is true that the cash and jewel bags were recovered at his instance at about 1.30 am on 16.2.2007 from PW9 Kumaresan, but, he was not aware as to what was inside those two bags; when he went to the police station, he was detained over there; he had not seen anybody thereafter; nobody spoke to him over phone in the morning on 15.2.2007; he had not handed over the cell phone on 27.2.207.
(xx) The accused also filed a separate statement u/s 313 of the Code of Criminal Procedure. The sum and substance of the said statement reads as follows:
His family and himself knew the deceased Suresh Bora and his family members for more than five years. Suresh Bora used to visit Vakrakaliamman Temple at Thiruvakkarai, Villupuram District, where his father and his other relatives were poojaris/priests. On certain occasions, he used to bring cash and jewels to be kept at the feet of the deity for performing pooja. On 14.2.2007, when the accused was at Pondicherry at his relatives house, Suresh Bora came to Pondicherry at about 11.00 pm with two bags containing cash and jewels and requested him to perform pooja with those two bags. But, the accused replied that it was too late to do pooja. Therefore, Suresh Bora informed him that he would come the next day to do pooja and left that night itself leaving the bags containing cash and jewels with the accused for safe custody. The same night, little after 12.00 midnight, PW9 Kumaresan came to his relatives house at Pondicherry and asked him to talk to PW11 Sherenik Mehta. When the accused spoke to Sherenik Mehta, he informed the accused that Suresh Bora had not returned home and asked him to call up Suresh Bora''s house immediately. The accused informed Sherenik Mehta that Suresh Bora had entrusted to him two bags of cash and jewels brought by him for doing pooja for safe custody and promised to come the next day. The accused also called up the deceased Suresh Bora''s house and informed Pinkie, the daughter of Suresh Bora of the aforesaid facts. On 15.2.2007, Suresh Bora did not come as promised and therefore, the accused started for Chennai carrying his personal money of Rs. 3,00,000/= for purchasing raw materials for the company. Before he left for Chennai, he met PW9 Kumaresan and handed over the two bags and asked him to keep them safe. He reached Suresh Bora''s house at about 4.30 pm on the said day. PW24 Inspector of Police was present at Suresh Bora''s house. Pinkie, the daughter of the deceased informed PW24 that Suresh Bora had left two bags containing cash and jewels with the accused. The accused also informed PW24 Inspector of Police that those two bags were entrusted to PW9 Kumaresan for safe custody. Thereafter, PW24 did not permit him to go and kept him in his custody. The Inspector of Police seized a sum of Rs. 3,00,000/= kept by him for purchasing raw materials for his company. He was kept the whole day on 15.2.2007 in the police station without arresting him. PW9 Kumaresan produced two bags at the instance of the accused on 16.2.2007. PW24 opened the two bags and found cash of Rs. 27,00,000/= and gold jewels weighing 13-1/4 kgs. On 17.2.2007, the accused was remanded to judicial custody. On 27.2.2007, though he was taken police custody, he was kept in the police station itself for two days and was not taken anywhere. No recovery of any jewels or mobile phone was made at his instance on 27.2.2007. The sum of Rs. 3,00,000/= seized from the accused by PW24 does not belong to Suresh Bora. The mahazar witness PW7 Rajesh, PW8 Dharmichand and PW13 Santhosh Kumar were not spotted by him at any time. In all probabilities, Suresh Bora, who had some family problems, would have put an end to his life.
3. Neither oral nor documentary evidence was let in on the side of the defence.
4. The Trial Court, having thoroughly adverted to the evidence to establish the close relationship of the accused with the deceased, the evidence to show that the deceased set off for worship after he received a phone call from the accused, the materials to show that the deceased left his office in a Maruti Car with cash and jewel bags, the purchase of cyanide by the accused on the date previous to the occurrence, detection of two cyanide pellets in the Maruti Esteem Car M.O.27 in the possession of the accused, the medical evidence to establish that the deceased died a homicidal death due to cyanide poisoning, recovery of cash and jewels carried by the deceased before his death, the conduct of the accused and the admission made by him in the statement u/s 313 of the Code of Criminal Procedure, handed down a verdict of conviction for offences punishable under Sections 364, 392 read with Section 397, 302 and Section 201 of the Indian Penal Code.
5. It is the case of the prosecution that the accused, having made arrangement for poisoning the deceased to death with an intention to commit robbery, abducted him, committed murder and robbery and screened the evidence by transporting the dead body of Suresh Bora in the Maruti Car owned by the deceased and parked in the parking slot of Apollo Hospital, Chennai.
6. Homicidal death due to cyanide poisoning: PW19 Dr. Udayasankar, who conducted post mortem examination on the dead body of Suresh Bora, had detected cyanide in both the lungs. In the toxicology report submitted by PW17 Mallika, she had mentioned that she had detected cyanide equivalent to 350 mg of sodium cyanide in the stomach. It is true that PW19 Dr. Udayasankar had not given any final opinion based on the said Toxicology report submitted by PW17 Mallika. But, PW19, Dr. Udayasankar has deposed before the court that Suresh Bora would have died due to cyanide poisoning on account of intake of cyanide. PW24 investigating officer in this case also has stated that the post mortem Doctor informed him during the course of investigation that it was a case of cyanide poisoning. The above facts and circumstances would unerringly establish that Suresh Bora died a violent homicidal death due to cyanide poisoning.
7. There is no ocular testimony to establish the case of the prosecution. The prosecution banks on various circumstances to establish its case. Let us now deal with the various circumstances projected by the prosecution to establish its case.
8. Advisor � Devotee relationship: PW2 Manju Bora the wife of the deceased would speak to the fact that her husband Suresh Bora developed friendship with the accused as he was the son of the person at the helms of Thiruvakkarai Temple frequented by her husband. It is her version that the deceased would not venture to do anything without taking advice from the accused. PW3 Shanthilal Bora, father of the deceased would state that the deceased used to clinch any deal for that matter only with the advice of the accused. There is no reason to disbelieve the aforesaid testimony of Pws.2 and 3 about the friendship of the deceased with the accused. The accused also in his statement u/s 313 of the Code of Criminal Procedure, has candidly admitted that the deceased Suresh Bora would regularly visit Vakrakaliamman Temple at Thiruvakkarai to perform pooja wherein his father and other relatives were poojaris/priests. The accused and his family knew the deceased Suresh Bora and his family members for more than five years. In view of the above, we find that the deceased, who was the devotee of Vakrakaliamman Temple at Thiruvakkarai, developed close friendship with the accused who used to give advice to him.
9. Proposal to meet the accused: (a) PW2, the wife of the deceased would state that her husband informed her in the morning on 14.2.2007 that the accused telephoned him and therefore, he had proposed to go over to the temple. The deceased also informed PW2 that the accused had proposed to come down to Chennai on that day.
(b) The learned Senior Counsel appearing for the appellant would submit that the telephonic conversation between the accused and the deceased was not established. The author of Ex.P34 BSNL Call details was not examined before the court. The same has been marked only through the investigating officer. Therefore, he would submit that the prosecution failed to establish the alleged telephonic conversation the accused had with the deceased in the morning on 14.2.2007. Per contra, the learned Additional Public Prosecutor would submit that there is no no reason to doubt the evidence of PW2 inasmuch as the accused and the deceased had developed close friendship. No wonder the accused contacted the deceased over phone about his arrival at Chennai on 14.2.2007, it is submitted.
(c) It is in evidence that the deceased, who was the devotee of the temple at T. Nagar and Thiruvakkarai used to meet the accused often and take advice to enter into any venture. Therefore, it is not surprising that the information about the programme of the accused at Chennai was informed by the accused to the deceased. Though the telephonic conversation as spoken to by PW2 was not established by examining the Engineer who issued Ex.P34, we find no reason to reject the natural version of PW2 as regards the telephone message received by the deceased from the accused in the morning on 14.2.2007. The prosecution has thus established that the accused contacted the deceased in the morning on 14.2.2007 over phone and intimated him of his proposed visit to Chennai. It is also proved that the deceased had a proposal to meet the accused on 14.2.2007.
10. Set off from the jewellery shop in Maruti Car with cash and jewel bags: (a) PW4 Arokyasamy was the employee of Mitalal Jewellery shop run by the deceased. He testifies that he purchased articles required for performing pooja as directed by the deceased Suresh Bora at about 6.00 pm on 14.2.2007. PW1 Vishal, the Manager of the said shop would state that the deceased Suresh Bora asked him to keep the cash and jewel bags in Maruti Car bearing registration No. TN 09 AM 5139 marked as M.O.25. PW1 and PW4 would also state that at about 6.30 pm on 14.2.2007, the deceased Suresh Bora proceeded to Venkateswara Temple at T.Nagar in the said car. PW1 would further depose that the deceased informed him that he would come back around 8.00 pm on the same day. PW2 would also state that her husband informed her that the cash and the jewels had to be made ready as he had proposed to go over to Venkateswara Temple at T.Nagar. It is very important to note that PW2 has categorically deposed that at about 6.30 pm on 14.2.2007, Suresh Bora left the jewellery shop on receiving telephonic message from Vasanth after informing PW2 that he would come back around 8.00 pm. PW3, father of the deceased also would state that at about 7.00 pm on 14.2.2007, Suresh Bora proceeded to Venkateswara Temple at T.Nagar. The aforesaid facts can be spoken to only by the persons who are very close to the deceased Suresh Bora. Therefore, the evidence of P.Ws.1 to 4 are found to be credible and trustworthy. We conclude that Suresh Bora left his shop in his Maruti Car, M.O.25 with cash and jewel bags to Venkateswara Temple at T.Nagar as per the instruction emanated from the accused.
(b) Of course, the learned Senior Counsel appearing for the appellant would submit that there is no reference in the first information report lodged by PW1 about cash and jewel bags taken by Suresh Bora alongwith him while going by Maruti Car. PW1 had not suspected murder of his employer for gain. Further, it is the admitted case of the accused that the cash and jewellery bags were entrusted by the accused to him. Therefore, the non-reference to the cash and jewel bags taken by the accused alongwith him while travelling by his Maruti Car pales into insignificance.
11. Presence of the accused at Chennai on 14.2.2007: (a) We have already referred to the evidence of PW2 to the effect that Suresh Bora informed his wife PW2 that the accused Vasanth telephoned him and therefore, he had proposed to go over to the temple. At about 6.30 pm on 14.2.2007 only after a telephonic message was received by Suresh Bora, the latter set off with cash and jewel bags to the temple.
(b) PW11 Sherenik Mehta was the employer of the accused Vasanth. PW9 Kumaresan was working as Supervisor and the accused was working as Manager in the company run by PW11 Sherenik Mehta. PW11 has testified that as per his direction, the accused took his wife who was unwell in the Maruti Esteem Car bearing registration No. PY-01 E 0459 marked as M.O.27 to Apollo Hospital, Chennai on 14.2.2007 as he was otherwise engaged in the company. At about 3.00 pm on the said day, PW11 proceeded to Apollo Hospital, Chennai from Pondicherry and sent back the accused to his company in the very same vehicle.
(c) PW9 Kumaresan has also spoken to the fact that the accused took the wife of PW11 who was unwell as per his direction to Apollo Hospital on 14.2.2007. The above facts and circumstances spoken to by the aforesaid witnesses would clinchingly establish the presence of the accused At Chennai on 14.2.2007.
12. Admission of the accused meeting the deceased Suresh Bora:
The accused in his statement u/s 313 of the Code of Criminal Procedure, would candidly admit that on 14.2.2007 at about 11.00 pm, Suresh Bora came down to Pondicherry where he was staying in one of his relative''s house with two bags containing cash and jewels. The evidence of P.Ws.2 and 3 would fortify the case of the prosecution that the deceased had set off from his shop with the bags of cash and jewels in his Maruti Car only on the instruction of the accused.
13. Purchase of cyanide: (a) PW14 Senthil has come out with a version that he was the native of Thiruvakkarai village. He was the classmate of the accused. He was working in Shanmuga Jewellery at Villupuram. On 13.2.2007, the accused approached him and asked him to procure cyanide saying that it was required for his factory. PW14 approached PW10 Usman who was running a shop in the name and style of Jhonny Basha and purchased three pellets of cyanide for a sum of Rs. 27/=. It is on record that PW10 was a licensed dealer in cyanide. PW14 testifies that he, having purchased three pellets cyanide as instructed by the accused from PW10, handed over the same to the accused on the same day.
(b). The learned Senior Counsel appearing for the appellant would submit that the evidence of PW10 cannot be accepted as no bill for the purchase of cyanide was produced by him. It is his further submission that the evidence of PW14 cannot be relied upon as the prosecution failed to establish that he was the classmate of the accused.
(c) The fact remains that cyanide is used for polishing and forging the ornaments. PW14 was doing polishing work in Shanmuga jewellery. Therefore, PW10, without suspecting the bona fides of PW14, has sold three pellets of cyanide to PW14. PW10 has categorically stated that bills were not issued and the sale of cyanide would be noted down only in an account book. No bulk purchase was made by PW14 from PW10. Further, PW10 has come out with a case that no bill was issued. Therefore, we do not suspect the version of PW10 that he sold cyanide pellets to PW14.
(d) PW14 hail from the very same village of the accused. Of course no document was filed to establish that the accused as well as PW14 studied in the very same school. Considering the fact that both hailed from the very same village, we do not find any reason to reject the evidence of PW14 that he was a classmate of the accused. Further, Thiruvakkarai is not a very big Town. As it is a small village, there is every possibility for PW14 to develop close friendship with the accused. The prosecution, with the aforesaid evidence, has established that the accused had procured a day in advance the lethal cyanide pellets through his friend.
14. Detection of dead body at the parking slot of Apollo Hospital: (a) PW16 Uthrapathy, Sub Inspector of Police, as per the direction of PW24 Sivamani, Inspector of Police was in search of the Maruti 800 car bearing registration No. TN-09 AM 5139. He received furtive information about the parking of the said car in the parking slot at the Apollo Hospital, Chennai. He proceeded to the said location and found Suresh Bora lying in between the front and back seat of Maruti Car. Immediately, he passed on the information to PW24, who came down to the said location and found the dead body. He sent message to the relatives of Suresh Bora about the demise of Suresh Bora. PW3 would state that he received information from one of his relatives about the location of the dead body of his son Suresh Bora in the parking slot of Apollo Hospital.
(b) PW6 Das who was in charge of Parking of Apollo Hospital has deposed on verification of the records that the Maruti Car bearing registration No. TN-09 AM 5139 had entered into the parking slot of Apollo Hospital, Chennai on 15.2.2007. He in fact pasted the information on the backside of the car that the parking of the said car exceeding 24 hours had attracted payment of Rs. 20/=.
(c) The learned Senior Counsel appearing for the appellant would submit that the prosecution failed to examine the car parking in charge who admitted the car at 6.00 am on 15.2.2007 and that therefore, the evidence of PW6 would not in any way improve the case of the prosecution. Firstly, it is found that PW6 has spoken before the court only based on the records available with him as to the fact that the car had entered into parking slot at 6.00 am on 15.2.2007. Therefore, there is nothing wrong for PW6 to speak about the admission of the car to the parking slot by his co-employee based on the records. It is established that the dead body of Suresh Bora was detected in his own Maruti Car M.O.25 parked in the parking slot of Apollo Hospital, Chennai.
15. Knowledge about the parking slot at Apollo Hospital: Reverting back to the evidence of PW11, Sherenik Mehta, the employer of the accused and PW9 Kumaresan, the co-employee of the accused, we find that the accused had come down on 14.2.2007 taking the wife of PW11 Sherenik Mehta who was ill for treatment to Apollo Hospital, Chennai in a Maruti Esteem Car M.O.27 owned by PW11. Therefore, the accused should have knowledge about the parking slot at Apollo Hospital.
16. Admission of possession of cash and gold jewels of the deceased: (a) PW1 Vishal and PW2 Manju Bora have spoken to the fact that Suresh Bora set off in his Maruti Car M.O.25 with cash and jewel bags. The accused also has candidly admitted his possession of cash and jewel bags of the deceased. In the statement u/s 313 of the Code of Criminal Procedure, the accused would come out with an explanation that on 14.2.2007 at about 11.00 pm, the accused came down to Pondicherry where he was staying in his relative''s house and entrusted two bags containing cash and jewels to him as the accused informed the deceased that it was not possible to perform pooja during night. The cash and jewels were entrusted to the accused only for safe custody, it is contended by the accused.
(b) We find that the accused has come out with a very artificial version with respect to the entrustment of cash and jewels to the custody of the accused. Firstly, the deceased would have come to know of the timings of performing pooja at Thiruvakkarai temple as he was an ardent devotee of the said temple. There is no dispute to the fact that he frequented the said temple to perform pooja by placing cash and jewels at the feet of the deity. Therefore, there is no reason for the deceased to be ignorant of the timings of pooja at the temple. Secondly, it is the case of the accused that the deceased proposed to come down in the morning for performing pooja and therefore, the deceased entrusted the entire cash and jewels to him for safe custody. At the odd hour, the deceased would not have thought of getting back to Chennai and going again to the temple in the morning as he had to spend the whole time during the journey back and forth.
(c) P.Ws.1 to 3 have categorically spoken to the fact that the deceased had a proposal to go over only to Venkateswara Temple in T.Nagar. The deceased had in fact informed P.Ws.1 and 2 that he would get back around 8.00 pm. If at all the deceased had proposed to go over to Thiruvakkarai Temple from Chennai, he would have definitely passed on the information to PW1 to PW3. PW1 was waiting to close the jewellery shop. He exhibited anxiety as his master had not returned even by 8.30 pm on 14.2.2007. PW2, wife of the deceased also had become very nervous. Their sincere attempts to make calls both to the deceased and the accused were of no avail. There is no reason for the deceased not to inform his family members or to his Manager about his whereabouts. The accused also had not properly responded to the call made by PW2 enquiring about the whereabouts of her husband. Therefore, we reject the artificial version of entrustment of cash and gold ornaments voluntarily by the deceased to the accused. The admission of the accused also would go to show that he was found in possession of cash and jewel bags taken by the deceased at the time of his departure from his shop.
17. Artificial version of entrustment of cash and jewel bags to PW9 Kumaresan: (a) PW9 Kumaresan, co-employee of the accused has categorically deposed before the court that on 15.2.2007, at about 1.30 pm, the accused telephoned to PW9 and asked him to come to Muruga Theatre at Pondicherry. PW9 boarded the Esteem Car driven by the accused. The accused enquired the location of the house of PW9. Thereafter, they proceeded to the house of PW9. The accused informed PW9 that there was a proposed raid in his house and therefore, the accused should keep in safe custody the documents entrusted to him. The accused, having opened the dickey of the car, took out two bags and kept them in the house of PW9. PW9 alighted from the car at Muruga Theatre.
(b) The accused, in his statement u/s 313 of the Code of Criminal Procedure, comes out with a version that Suresh Bora came down to Pondicherry at about 11.00 pm on 14.2.2007 with two bags containing cash and jewels. As the accused informed the deceased that pooja could not be performed during mid of night, he entrusted the two bags containing cash and jewels to the accused for safe custody.
(c) We are of the considered opinion that the aforesaid stand had been taken up by the accused in order to ward off the concrete evidence let in by the prosecution to establish the possession of two bags containing cash and jewels with the accused.
(d) There is no reason for PW14, a co-employee of the accused to come out with an adverse version as against the accused about the reason for entrustment of two bags allegedly containing documents. It is the case of the accused that those two bags were entrusted to him for safe custody by the deceased. We have already held that the deceased would not have left the two bags containing cash and jewels at the hands of the accused, when pooja was programmed in the following morning. Further, even if the deceased intended to get back home, he would have taken the valuables alongwith him. If at all the bags containing cash and jewels were entrusted to the accused for safe custody, there is no reason for the accused to come out with a concocted reason for entrustment of those two bags before PW9. Firstly, it appears that the accused had come out with a doctored version that a raid was expected at his house. The deceased had allegedly entrusted cash and jewels at the hands of the accused at 11.00 pm. The following morning, there was a proposal to conduct a pooja. Therefore, there could have been no legitimate anticipation of any raid by the accused. Further, it is found that the accused instead of bluntly informing PW9 that the bags contained cash and jewels, he passed on the information as though those two bags contained documents. The innocent PW9 received those two bags and kept them in his safe custody. The artificial version of entrustment of cash and jewels to PW9 Kumaresan has been completely belied by the evidence let in by the prosecuting agency.
18. Exclusive possession of Maruti Esteem Car (M.O.27):
(a) PW11 Sherenik Mehta, the employer of the accused spoke to the fact that on 14.2.2007, he had to stay back at Chennai to continue the treatment of his wife. At about 10.00 pm on 14.2.2007, the accused had informed PW14 that he could not proceed to Thiruvakkarai as the vehicle developed some snag and therefore, he proceeded to Pondicherry to the house of his junior paternal uncle. Only on the basis of the admissible portion, Ex.P10 in the confession statement given by the accused, M.O.27 Maruti Esteem Car was recovered in an apartment at Pondicherry. From the dashboard of the said car, two pellets of cyanide were also recovered. PW10 Usman has spoken to sale of three pellets of cyanide to PW14. PW14 had, in turn, handed over all the three pellets of cyanide to the accused on 13.2.2007. The evidence of PW19 Dr. Udayasankar and PW17 Mallika, Forensic Science Expert would go to establish that cyanide was found both in the lungs and stomach of the deceased.
(b) It is submitted by the learned Senior Counsel appearing for the appellant that the exclusive possession of Maruti Esteem Car owned by PW11 was not established by the prosecution. In this context, it is relevant to refer to the evidence of PW9 Kumaresan who would speak to the fact that on 15.2.2007 at about 1.30 pm, the accused boarded him in the Maruti Esteem Car. It is not the evidence of PW11 that the Esteem car entrusted to the accused was received back by him before ever it was recovered by the investigating agency. Therefore, rejecting the submission made by the learned Senior Counsel appearing for the appellant, we hold that the prosecution has established beyond reasonable doubt the exclusive possession of Maruti Esteem Car (M.O.27) with two pellets of cyanide with the accused.
19. Recovery of cash and jewels: (a) PW7 Rajesh and PW8 Dharmichand spoke to the recovery of a sum of Rs. 3,00,000/= from the person of the accused, the Maruti Esteem car on the basis of the admissible portion, Ex.P10 in the confession statement voluntarily given by the accused, two pellets of cyanide M.O.26 series, cash and jewels M.O.8 series to M.O.12 series and M.O.13 to M.O.23. They have also spoken to the recovery of M.O.28, two plastic containers, M.O.29 J.Mitalal Purse, M.O.30 Cloth purse containing four chambers, M.O.31 cloth purse containing three chambers and M.O.32 velvet cloth bag. It is on record that the cash recovered were deposited in UTI Bank as found from pay-in-slip, Ex.P3 dated 13.4.2007 after the same was recovered and entrusted to the court for custody.
(b) It is submitted by the learned Senior Counsel appearing for the appellant that a sum of Rs. 3,00,000/= was possessed by the accused for the purpose of purchasing certain articles for the company he was serving. Firstly, it is found that the above version of the accused found in his statement u/s 313 of the Code of Criminal Procedure was not corroborated by the employer, PW14 Sherenik Mehta. No document was also produced to show that the said amount was drawn from the account of the company for utilising the same for purchasing articles for the company. Therefore, we are not inclined to accept the defence of the accused that a sum of Rs. 3,00,000/= was entrusted to the accused for the purpose of purchasing articles for the company. The court has already held that the accused has come out with a totally faked version in order to wriggle out from the strong foundation laid by the prosecuting agency as to his possession of cash and jewels.
(c) It is submitted by the learned Senior Counsel appearing for the appellant that PW7 Rajesh and PW8 Dharmichand would not have accompanied the investigating agency if at all they did not have any interest in the case. PW7 and PW8 have come out with a natural version that they came down to Railway Station to receive and send off, as the case may be, their friends and relatives respectively. It is to be noted that during midnight the recovery was effected. No wonder, the investigating agency associated P.Ws.7 and 8 to be witnesses and they also expressed their willingness to accompany to Pondicherry to effect recovery. We do not find any compelling reason to reject the evidence of P.Ws.7 and 8 as their evidence is found reliable. We find that the prosecution could establish the recovery of cash and jewels on the basis of the admissible portion found in the confession statement voluntarily given by the accused.
20. Recovery of cell phone of the deceased: (a) PW13 Santhosh Kumar has spoken to the recovery of the cell phone M.O.7 of the deceased under mahazar, Ex.P15 and two necklaces M.O.24 under mahazar, Ex.P16 on the basis of the confession statement given by the accused on 27.2.2007. The learned Senior Counsel appearing for the appellant would submit that there is no reason for taking police custody of the accused on 27.2.2007 as nobody informed about the missing of any necklaces which was taken away by the deceased.
(b) It is true that the relatives of the deceased had not indicated about missing of necklace. But, P.Ws.1 and 2 have spoken to the fact that they attempted to keep in touch with the cell phone of the deceased after he did not return by 8.30 pm on 14.2.2007. The cell phone of the deceased was not found alongwith the dead body. Therefore, the investigating officer, PW24 has every reason to take the accused for police custody for further interrogation in this case. The accused has confessed not only the location of the cell phone of the deceased but also two necklaces, he took away from the deceased. Therefore, there is no reason to suspect the mode adopted by PW24 to recover M.O.7 and M.O.24 by taking police custody of the accused. We find that no explanation was forthcoming from the accused as to the exclusive knowledge attributed to him as to the location of the cell phone of the deceased.
21. Abnormal conduct of the accused: (a) It is on record that the accused was the close friend of the deceased. No venture was attempted by the deceased without the counselling of the accused. Such an abiding faith the deceased had with the accused. PW2 was very anxious as her husband had not returned by 8.30 pm as he informed. It is found that PW11 Sherenik Mehta was contacted by the family of the deceased to locate the accused as the accused did not give proper reply over phone to PW2. The evidence of PW2 that the accused did not properly reply as to the whereabouts of her husband cannot be simply ignored. PW11 Sherenik Mehta was also not in a position to directly keep in touch with the accused. He had to resort to the help of his other employee, PW9 Kumaresan at the odd hour on 14.2.2007. PW9 Kumaresan had to rush to the house of the junior paternal uncle of the accused to locate him at about 1.30 am on 15.2.2007. In the morning at about 9.00 am on 15.2.2007, PW11 contacted the accused and enquired the whereabouts of the deceased. Very coolly, the accused had informed PW11 that he would pass on information to PW11 after taking a bath and completing his Dhyanam session.
(b) The accused had come out with a version in his statement u/s 313 of the Code of Criminal Procedure that during early morning on 15.2.2007, he contacted his employer PW11 Sherenik Mehta and Ms. Pinkie, the daughter of Suresh Bora and informed them that two bags left behind by Suresh Bora were in his safe custody. A prudent man would have straightway come down to the house of the deceased if at all he was really entrusted with cash and jewel for safe custody and returned the same to the family members of the deceased at least the next day morning when the entire family members exhibited anxiety over the fate of Suresh Bora. Quite unfortunately, the accused, having come to know of the suspicion arose in the mind of the relatives of the deceased as to his role in the complicity of the crime, approached PW9 at 1.30 pm on 15.2.2007 and left two bags with the false plea that those two bags contain only documents. The accused also reeled out to PW9 that a raid was expected in his house and therefore, he had to entrust those documents in the safe custody of PW9. No prudent man would think in terms of entrusting cash and jewels to a third party when the family members of the person who entrusted with him anxiously search for the whereabouts of the missing person. Therefore, we find that the above abnormal conduct of the accused vapourises his plea of innocence.
22. Links complete in the chain: The learned Senior Counsel appearing for the appellant would submit that the mobile numbers of the deceased as well as the accused and the conversation that took place between them just prior to the occurrence were not established. The accused has admitted that he met the deceased at 11.00 pm on 14.2.2007. The Maruti Car M.O.25 which allegedly carried the dead body was spotted at 6.00 am on 15.2.2007. It is his submission that when there is no evidence to establish that the accused was in the company of the deceased in between the aforesaid timings. Further, the car park in charge who noted down the entry of Maruti Car M.O.25 into the parking slot of Apollo Hospitals, Chennai was also not examined to establish that the accused was found driving the car. The Maruti Esteem Car Key and jewel and cash bags keys were not seized or recovered from the accused. It is a mystery as to how the Maruti Esteem Car was opened. Therefore, he would submit that there are lot of missing links in the chain of circumstances relied upon by the prosecuting agency.
(b) The learned Additional Public Prosecutor would submit that though the author of Ex.P34 was not examined, Ex.P34 call details were marked through the investigating officer. At any rate, the prosecution could establish from other evidence that the accused did contact the deceased in the morning on 14.2.2007 and that repeated telephone calls made both to the accused and the deceased did not evoke any positive response. Therefore, lack of evidence to establish the exact mobile number of the accused and the deceased and the actual conversation that transpired between them does not matter much. It is his further submission that the needle of suspicion points only to the guilt of the accused inasmuch as all the links in the chain of circumstances are found complete. There would have been no intervening event between the point of time at which the accused got himself moved with the deceased and the point of time at which the car made an entry at 6.00 am the next day morning. The non-examination of the car parking incharge who permitted the Maruti Car for parking on 15.2.2007 does not go to the root of the matter. It is his further submission that the Maruti Esteem Car and the cash and jewel bags were forcibly opened by the investigating officer. Therefore, the non recovery of the key taken from the accused would not create any dent in the case of the prosecution, he would submit.
(c) The fact remains that the prosecution failed to establish the exact mobile telephone number of the accused and the deceased. They also had not let in legal evidence to establish the exact conversation that transpired between the accused and the deceased and also between the accused and the family members of the deceased. As rightly pointed out by the learned Additional Public Prosecutor, the prosecution has established the conversation that took place between the accused and the deceased in the morning on 14.2.2007 and the subsequent conversation that took place between the accused and PW2 and also between the accused and PW11. When there are ample testimonies to clinchingly establish the contact between the accused and the deceased and also between the accused and the relatives of the deceased, lack of documentary evidence to establish the mobile telephone numbers of the accused and the deceased and the transcript of the conversation that took place between them do not upset the case of the prosecution. There is, of course, no evidence to establish the spotting of the deceased in the company of the accused between 11.00 pm on 14.2.2007 and 6.00 pm on 15.2.2007. The admission of the accused would go to establish that he was found in the company of the deceased last. The car park in charge is not a detective to note down the physical features of the drivers who drove the vehicle inside the parking slot. His primary duty is to collect the parking fees according to the schedule of fees. Of course, the prosecuting agency should have examined the car park incharge, who, in fact, permitted the Maruti Car M.O.25 into the parking slot area of Apollo Hospital. The fact remains that the car M.O.25 was found with the dead body of Suresh Bora. It is a case of abduction, commission of murder and robbery and screening of evidence. We find that there is no lapse on the part of the investigating agency in linking the accused with the crime. The non-examination of the car parking incharge who was on duty at 6.00 am on 15.2.2007 does not go to the root of the case. All the circumstances set out above would establish that it was only the accused who authored the crime charged as against him.
(d) The investigating official has every authority to forcibly open the car and bags for the purpose of investigation. Of course, the investigating agency would have verified whether the keys were with the accused. We are concerned with the recovery of Maruti Esteem car with two pellets of cyanide and cash and jewel bags entrusted to the custody of PW9 by the accused and not the custody of the keys thereof. The case of the prosecution would not crash down on account of non-seizure of the keys from the accused especially when there is evidence to show that the Maruti Esteem car M.O.27 and cash and jewel bags were forcibly opened for taking out the offending article and valuable articles respectively therein.
23. Findings: The above chain of circumstances spoken to by the witnesses on the side of the prosecution unerringly and unmistakenly point the guilt of the accused. They are not in consonance with the innocence of the accused. We are of the conclusion that nobody else except the accused has authored the crime of abduction, murder, robbery and screening of evidence charged as against him. There is no snap in the chain of circumstances ably and demonstrably putforth by the prosecuting agency. We are also of the firm opinion that the defence set up by the accused through the statement u/s 313 of the Code of Criminal Procedure is not at all found acceptable especially in the face of the voluminous facts and circumstances spoken to by the witnesses. Therefore, we have no hesitation to reject the defence set up by the accused through the statement u/s 313 of the Code of Criminal Procedure.
24. In view of the above, the judgment of conviction under Sections 364, 392 read with Section 397, 302 and Section 201 of the Indian Penal Code and the sentence imposed thereunder stand confirmed and the appeal is dismissed.
