- (1.)This appeal is directed against judgment dated 27th April, 2009, passed by the High Court of Judicature at Madras in Criminal Appeal No.441 of 2007. By the impugned judgment appeal preferred by the appellants- accused nos.1 to 3 has been dismissed and conviction of accused nos.1 to 3 u/s 364 IPC and accused no.1 u/s 302 IPC and accused nos.2 and 3 u/s 302 r/w 34 IPC and the sentence of life imprisonment and fine imposed upon them have been confirmed.
(2.)The case of the prosecution in a nutshell is as follows:
Deceased Mani alias Parai Mani took lease of the land in S.F. No. 427/1 of Vadapudur village belonging to PW3-Krishnasamy and PW6-Ramasamy. Accused No.6-Nagarathinam was the neighbouring land owner. Since Accused No.1- Paramasivam and Accused No.6-Nagarathinam threatened the deceased not to break the stone, deceased Mani alias Parai Mani filed suit in O.S. No. 5/2004 before DMC, Pollachi for Permanent Injunction restraining Accused no.6 and PWs.3 and 6 from interfering with quarrying. There was animosity between the deceased and the family of Accused no.6-Nagarathinam.

About 10 days prior to the date of occurrence, Accused no.1-Paramasivam, Accused no.6-Nagarathinam and Accused no.7-Revathi threatened the deceased. About 4 days prior to the date of occurrence, Accused no.2-Selvaraj alias Selvan and another person approached the deceased for purchase of stone and since it was late hours, deceased refused to accompany them and asked them to come on some other day.

Again Accused no.2 and another person approached the deceased on 18.1.2004 and asked for stones and deceased accompanied the accused to the quarry. PW1-Kannaiyan and PW2-Kala witnessed that deceased went along with Accused no.2-Selvaraj alias Selvan and Accused no.3-Nirmal. On the said date i.e.18.1.2004, PW8-Sivakumar and PW9-Doraisamy who were returning from the Petrol Pump, saw white colour Maruthi Van bearing registration No. TN-23 E 5951 (MO1) was parked on the road side. PW9 saw the deceased and Accused no.1 were sitting inside the Maruthi Van.

Next day on 19.1.2004, PW23-Pugazhenthi (Railway Key Man), Thirupur saw the dead body on the railway track and informed PW20-Ramachandran (Station Master) who in turn informed the Out-post Police Station, Thirupur. PW24- Sankaralingam (Head Constable) received the report and registered the case for 'suspicious death' in Cr. No. 12/2004 u/s 174 Cr.P.C. PW24-Head Constable went to the scene of occurrence and found the dead body of a male on the railway track, prepared Observation Mahazar (Ex.P15) and Rough Plan (Ex.P16). PW24 also held Inquest on the body of the deceased (Ex.P18) and sent the dead body for autopsy to Government Hospital, Thirupur. On his request PW27-Nizar Ahemad had taken photographs (MO18 series) of the body lying on the railway track.

PW33-Dr.Parimala Devi conducted autopsy over the dead body and noted the injuries, Dr. Devi opined that death was due to multiple injuries on the neck and head injuries about 70 to 80 hours prior to autopsy. Since there was no clue about the identity of the dead body, body was buried at Chellandiamman grave yard Tirupur by PW24-Head Constable with the aid of PW22-Murugasamy (Grave yard watch man).

Since, deceased not returned home, PWs.1 and 2 searched for him and on 20.1.2004 PW1 lodged written complaint [Ext.P1]. On the basis of written complaint, PW39-Rajendran (Inspector of Police) registered the case in Cr. No. 27/2004 u/s 363 IPC. PW39 went to the scene of occurrence and prepared Observation Mahazar and Rough Plan. He also enquired PWs.1 to 6 and 15 and recorded their statements.

PW41-Shahul Ahmeed (Inspector of Police) took charge of the case on 26.1.2004 and made further investigation. On 28.1.2004 at about 1.45 P.M., PW41 arrested accused no.2-Selvaraj near Vanjipalayam railway gate. On being interrogated, accused no.2 voluntarily gave a confession statement which led to the recovery of Ropes (MO10 series), Banian (MO11), Bag (MO12), Diary (MO2) and Money purse containing the photo of the deceased (MO3) Seizure Mahazar (Ext.P5) was prepared. Thereafter, along with accused no.2, PW41 went to the scene of occurrence i.e. railway track and prepared Observation Mahazar (Ext.P34) and Rough Plan (Ext.P35).

PW41 on the same day i.e. 28.1.2004 at 6.15 P.M. arrested accused no.5-Gudalingam alias Lingasamy and recorded his confession statement which led to recovery of MO1-Maruthi omni van under Ex.P37-Seizure Mahazar. On the same day, at about 8.50 P.M., PW41 arrested accused no.1- Paramasivam and recorded his confession statement which led to recovery of Lungi (MO4), Shirt (MO5) and Voters ID Card (MO9) of deceased under Seizure Mahazar (Ext.P39). Thereafter, PW41 went to Thirupur Out-post Police Station and enquired PW24-Head Constable and received copy of FIR in Cr. No. 12/2004. Thereafter, PW41-Investigating Officer altered the FIR in Criminal No. 27/2004 from Section 363 IPC to Sections 120- B, 364 and 302 IPC.

On 17.2.2004, PW41 sent requisition for exhumation of dead body of the deceased which was exhumed in the presence of PW31-Tahsildar, PW21-R.I. and other witnesses. PW41 seized Waist Cord with Silver Amulet under Seizure Mahazar (Ext.P12). Observation Mahazar (Ext.P13) was prepared by PW-41 in respect of the place where body was buried. Rough Plan (Ext.P44) was also prepared. Blood samples of the dead body was taken. Blood samples of PW14 (Manickammal) and PW15 (Subramani) -mother and brother of the deceased were taken and forwarded for DNA examination. PW40-Vanaja (Asst. Chemical Examiner and Asst. Director) conducted DNA examination and opined that "the bone pieces etc. described belong to a human male individual". He further opined that "the person Mani alias Parai Mani to whom the bone pieces etc. belong is the biological offspring of Ms.A.Manickammal."-PW14.

Accused no.3-Nirmal and Accused no.4-Sureshkumar alias Suresh alias Pambatti surrendered before Judicial Magistrate, Pollachi on 05.2.2004.

PW41 was permitted to take them to police custody. Confession statement recorded from accused no.3 led to recovery of Torch (MO6), Battery (MO17 series), Knife (MO16), Hundred rupee Note [MO13], Bag (MO15) under Seizure Mahazar (Ext.P7). Confession statement recorded from accused no.4 led to recovery of Watch (MO8), Fifty rupee Note (MO14), Plastic bag (MO19) under Seizure Mahazar (Ext.P9).

PW38-Judicial Magistrate No. II, Pollachi conducted Test Identification Parade in respect of Accused nos.2 and 3 on 13.2.2004. PWs.1, 2 and 5 participated in the Test Identification Parade and identified the accused. On receipt of chemical analysis report and DNA report and after completion of due investigation, PW41 filed final report u/s 147, 148, 120-B, 364 and 302 IPC.

(3.)To substantiate the charges against the accused, prosecution examined 42 witnesses and brought on record Exts.P1 to P44 and Mos.1 to 18. Accused were questioned u/s 313 Crl.P.C. Accused denied all the charges and pleaded not guilty and stated that a false case is foisted against them.