M.CHOCKALINGAM, J. - (1.) CHALLENGE is made to a judgment of the Additional Sessions Division, Fast Track Court No.I, Coimbatore, made in S.C.No.4 of 2009 whereby the appellants two in number stood charged, tried and found guilty and awarded punishment as follows: (TABLE)
(2.) NECESSARY facts for the disposal of this appeal can be stated as follows: (a) The first appellant shown as A-1 was doing building contract work, and A-2 is his friend. The deceased Gopi, the son of P.W.1 and a close relative of P.W.2, was working under A-1 as mason. A-1 was to pay Rs.3500/- to the deceased towards coolie. When the deceased demanded the same, there was an evasive answer from A-1, and the deceased used hard words. Aggrieved over the same, A-1 hatched up a plan with A-2 conspiring together to put an end to his life. (b) On 25.8.2007, in the evening hours, A-1 and A-2 took the deceased along with them, and P.W.3 also joined with them. They went to a brandy shop and consumed liquor. At that time, the deceased Gopi was demanding Rs.3500/-. Immediately, A-1 and A-2 asked P.W.3 to go home. Then they took him to Kallukuli at Irugur. A-1 and A-2 gave brandy to the deceased. Further, at that time, when Gopi got intoxicated, A-1 held his legs, lifted him and threw under the rock saying "you should not live further". The deceased sustained head injury. Then, A-1 removed the pant and shirt of the deceased, held his legs and took him near Kallukuli water. A-1 pressed his legs and told A-2 to cut his neck. Accordingly, A-2 took a hidden aruval and cut his neck and thereby caused his death. Then they ran away from the place of occurrence. (c) P.W.1 who is the father of the deceased, went in search of his son along with P.W.2. They also stayed at Coimbatore for a few days, and despite search, they could not. Thereafter, P.W.1 went to Coimbatore on 2.9.2007, again, and he made a search. At that time, P.W.3 came there and informed him that A-1 and A-2 were with him at Brandy Shop on 25.8.2007, and immediately, P.W.1 proceeded to the respondent police station and gave Ex.P1, the report, to P.W.18, the Sub Inspector of Police, on the strength of which a case came to be registered in Crime No.845 of 2007 under Sec.302 of IPC. Ex.P14 is the printed FIR, which was despatched to the Court. (d) On receipt of the copy of the FIR, P.W.20, the Inspector of Police, took up investigation, proceeded to the spot, made an inspection and prepared an observation mahazar, Ex.P2, and also a rough sketch, Ex.P17. They were able to recover only the trunk part of the body on which inquest was conducted in the presence of witnesses and panchayatdars, and an inquest report, Ex.P18, was also prepared. It was actually sent for the purpose of postmortem. (e) P.W.16, the Doctor, attached to Coimbatore Medical College Hospital conducted autopsy on the trunk of the body and gave opinion that he died due to multiple injuries and also on the neck and has issued a postmortem certificate, Ex.P11. The final report received from the Forensic Sciences Department, Coimbatore, was marked as Ex.P20. (f) Pending investigation, A-2 was first arrested on 9.9.2007. He gave a confessional statement voluntarily. The same was recorded. The admissible part is marked as Ex.P4. He identified the place where the head was buried. Then it was exhumed in the presence of P.W.19, the Tahsildar. P.W.19 conducted inquest on the head and prepared an inquest report, Ex.P15. Ex.P13 is the exhumation report given by P.W.17, the Doctor, wherein he has opined that the deceased would appear to have died due to decapitation injuries sustained by him. A-2 also produced M.O.5 aruval, which was recovered under a cover of mahazar. (g) Pending investigation, A-1 was arrested on 10.9.2007. He gave a confessional statement in the presence of P.W.14 and another. The same was recorded. The admissible part is marked as Ex.P8 following which he produced a jeans pant, M.O.8, which was worn by the deceased at the time of occurrence, and the same was also recovered under a cover of mahazar. (h) The skull was to the laboratory sent for the purpose of superimposition test. P.W.15, the Doctor, after conducting superimposition test, has opined that it was that of the deceased Gopi. Ex.P10 is the superimposition test. (i) All the material objects were subjected to chemical analysis by the Forensic Sciences Department, and Ex.P20, the chemical analyst's report, was placed before the Court. On completion of investigation, the Investigator filed the final report. The case was committed to Court of Sessions, and necessary charges were framed. In order to substantiate the charges, the prosecution examined 20 witnesses and also relied on 20 exhibits and 8 material objects. On completion of the evidence on the side of the prosecution, the accused were questioned under Sec.313 of Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses, which they flatly denied as false. No defence witness was examined. The trial Court heard the arguments advanced on either side and took the view that the prosecution has proved the case beyond reasonable doubt and entered a judgment of conviction and sentenced them to imprisonment as referred to above. Hence this appeal at the instance of the appellants. Advancing arguments on behalf of the appellants, the learned Counsel Mr.M.Vijayakumaran would submit that in the instant case, the prosecution came with a specific story that the occurrence has taken place at about 11.00 P.M. on 25.8.2007 that the complaint was given only on 3.9.2007 that the intervening circumstances noticed would clearly indicate that the prosecution story cannot, but be false that P.W.1 is the father and P.W.2 is the close relative of the deceased that P.Ws.1 and 2 came to Coimbatore in search of Gopi and stayed for a few days, but they could not find him that according to them, at that time, they did not enquire about A-1 under whom he was employed that apart from that, at the time of cross-examination, P.W.2 has stated that on 27.8.2007, they went to the police station and P.W.1 gave a complaint to the Inspector that it would be indicative of the fact that it was the first information given to the police that the said first information which was admittedly given by P.W.1, was not produced before the Court and thus it is a case where the first information has been suppressed and that what was given by P.W.1 on 3.9.2007 to P.W.18, the Sub Inspector of Police, was only the second information.
(3.) ADDED further the learned Counsel that even according to P.W.3, it was he who informed to P.W.1 on 2.9.2007 itself that what was the reason for the silence which P.W.3 was keeping all along for a period of one week, remained unknown that had it been true, he would have informed others or P.W.1 or P.W.2 immediately as to the occurrence but, he has not done so and hence the last seen theory spoken to by P.W.3 that they were at the brandy shop should not have been believed. The learned Counsel would further submit that even according to P.W.3, he informed to P.W.1 on 2.9.2007 itself that if to be so, one would immediately go to the police station, but P.W.1 did not go to the police station and he went to the police station only on 3.9.2007 that it would be indicative of the fact that not only there was huge delay in lodging the complaint, but also the first information has been suppressed and that all would go to show that P.W.3 has been introduced in order to strengthen the prosecution case if possible.;