Manickam vs State by the Inspector of Police

M. Jeyapaul, J.—The sole accused, who was convicted for the offence u/s 302, IPC (2 Counts) and sentenced to undergo Life

Imprisonment for each count, has preferred the present Criminal Appeal. On the side of the prosecution, as many as 26 witnesses were examined

and 40 documents and 29 material objects were marked. Three documents were marked, but, no evidence was let in on the side of defence.

The sum and substance of the case of the prosecution, as unfolded by the witnesses, reads as follows:

P.W. 9-Baby is the co-sister of the deceased Vijaya. The husband of Vijaya had passed away in the year 2003. The deceased Vijaya is the aunt''s

granddaughter of P.W. 1-Madheswari. After the demise of her husband Palanisamy, the deceased Vijaya came down to reside near the house of

P.W. 1-Madheswari. Accused Manickam also set up his residence in one of the houses in the very same row about two months prior to the

occurrence.

Accused Manickam had developed illicit relationship with the deceased Vijaya and used to frequent her house.

On 18.2.2007, at about 7.00 p.m., Vijaya and Guna @ Kathiravan were in the house of P.W. 1-Madheswari. Having left Guna @ Kathiravan in

the house of P.W. 1-Madheswari, Vijaya proceeded to her house for preparing the dinner at her house. Guna @ Kathiravan stayed back in the

house of P.W. 1-Madheswari and completed his non-vegetarian dinner and thereafter, he was taken by Vijaya to her house.

P.W. 12-Shanmugam is the friend of accused Manickam. On 18.2.2007, at about 8.00 p.m., he met accused Manickam and they proceeded to

Mohan Theatre and watched second show Tamil movie ""EE"" and thereafter, they proceeded to their respective houses. P.W. 10 Iyyappan, who

was an employee under P.W. 11-Regupathy -- Hotelier, spotted accused Manickam walking along Villarasam Mariamman Temple Street at

about 2.00 a.m. P.W. 7-Sakthivel saw accused Manickam entering into the house of the deceased Vijaya at about 2.00 a.m. on 19.2.2007, when

he came out to pass urine. P.W. 8-Gopi, son of P.W. 2-Arumugam -- House owner of the said row of houses, witnessed accused Manickam

proceeding to his house emerging out of the house of the deceased Vijaya at about 2.15 a.m. on 19.2.2007.

P.W. 13-Murugesan is having workshop near Arularasi Mariamman Temple Street and at about 3.00 a.m. on 19.2.2007 he saw accused

Manickam going over there. He asked accused Manickam where he was proceeding. Accused Manickam replied that he was going to his village.

P.W. 13-Murugesan found the accused carrying something in his hands. P.W. 14-Jeganathan, Tea Stall Owner, would depose that accused

Manickam came down to his shop and purchased three cigarettes having paid Rs. 10/-.

P.W. 1-Madheswari having found that Guna @ Kathiravan was not ready to board the autorickshaw to proceed to his school at about 8.30 a.m.

on 19.2.2007, she called Vijaya, but, there was no positive response from her house nor did the boy come out from the house to proceed to the

school. Therefore, P.W. 1-Madheswari went to the house of Vijaya and found that the door was just closed and she opened the door and found

that Vijaya and Guna @ Kathiravan were lying dead. Injuries were found in the neck as well as in the right hand of Vijaya. Guna @ Kathiravan

also had sustained injury in his neck. The articles found in the house were not tampered with. She came out of the house and raised hue and cry.

P.W. 1-Madheswari proceeded to Chithode Police Station and gave Ex. P1-Statement to P.W. 25-Sub-Inspector of Police Senthilkumar, who

recorded the same and registered a case in Crime No. 80/07 u/s 302, IPC. He prepared Ex. P33-Express First Information Report and

despatched the same to the learned Judicial Magistrate concerned and the Higher Officials through P.W. 23-Grade I Constable Jayaraman.

P.W. 26-Inspector Selvam took up the case for investigation. Having alerted the Sniffer Dog Squad and Finger Print Expert, proceeded to the

scene of occurrence at about 10.00 a.m. on 19.2.2007. He drew Ex. P34 Rough sketch, reflecting the scene of crime. P.W. 19-Arivarasu took

M.O. 15-series Photographs of the scene of occurrence. P.W. 26-Inspector Selvam also prepared Ex. P11-Observation Mahazar in the presence

of P.W. 17-V.A.O. Ramamurthy and another witness. He held inquest on the dead bodies of Vijaya and Guna @ Kathiravan in the presence of

panchayatas and witnesses and prepared Reports-Exs. P35 and P36. At about 3.30 p.m. on the same day, he recovered M.Os. 1 and 2-Pillows;

M.O. 3-Blood stained Lime mortar; M.O. 4-Sample Lime mortar; M.Os. 5 and 6-Blood stained Mats; M.O. 7-Shirt; M.O. 8-Blood stained

Cement Mortar; M.O. 9-Sample Cement Mortar and M.O. 10-Blood stained TVS 50 XL Owner''s Manual Book under Ex. P12-Mahazar.

P.W. 26-Inspector Selvam examined P.W. 1-Madheswari, P.W. 2-Arumugam, P.W. 3-Namasivayam, P.W. 4-Vasanthi, P.W. 5-Arumugham,

P.W. 6-Senthilkumar, P.W. 9-Baby, P.W. 10-Iyyappan, P.W. 11-Regupathy, P.W. 13-Murugesan and other witnesses and recorded their

statements.

P.W. 15-Dr. Sakthivel having received the requisitions from P.W. 26-Inspector Selvam to conduct post-mortem examination on the dead bodies

of Vijaya and Guna @ Kathiravan, commenced the post-mortem examination on the dead body of Vijaya, aged 21 years, at about 4.00 p.m. on

19.2.2007 and found the following appearances and external and internal injuries:

Appearances found at the post-mortem:

Rigor mortis present in right lower limb.

External Injuries:

15 cm x 0.5 cm horizontally linear cut injury with depth of sub-cutaneous tissue right side neck.

20 cm x 5 cm deep cut horizontal over left side of front of neck exposing torn blood vessels, and muscles of left neck.

7 cm x 1 cm x deep incised wound extending from 1st web space to hypothenar area exposing cut tendons of right hand.

Multiple abrasions present over right thigh, right knee, right foot.

Internal Injuries:

Hyoid -- Intact. 2. Stomach -- Empty. 3. Uterus -- Empty. 4. External genitalia -- Intact.

Other viscera intact pale.

He has opined that the deceased Vijaya would appear to have expired 12-16 hrs. prior to autopsy due to shock and haemorrhage on account of

multiple injuries. Ex. P4 is the Post-mortem Certificate and Ex. P5 is the Final Opinion, issued by him.

He also commenced post-mortem on the dead body of Guna @ Kathiravan, aged 4 years, at about 5.00 p.m. on 19.2.2007 and found the

following appearances and external and internal injuries:

Appearances found at the post-mortem:

Rigor mortis present in left lower limb.

External Injuries:

12 cm x 5 cm x deep horizontally cut injuries across the midline in front of the neck exposing cut trachea, blood vessels, muscles of the neck.

Internal Injuries:

Hyoid -- Intact.

Stomach -- Empty.

Viscerae -- Intact and Pale.

Head and Spine -- Intact.

External genetalia -- Intact.

He has opined that the deceased Guna @ Kathiravan would appear to have expired 12-16 hrs. prior to autopsy due to shock and haemorrhage

on account of multiple injuries. Ex. P7 is the Post-mortem Certificate and Ex. P8 is the Final Opinion, issued by him.

P.W. 21-Kalaiselvi, Woman Constable, seized M.O. 19-Nose screw; M.O. 20-Ear stud-pair; M.O. 21-Imitated Bangles-pair; M.0.22-severed

Earthen Beads; M.O. 23-Saree, M.O. 24-Blouse and M.O. 25-Inskirt from the body of Vijaya and entrusted the same to P.W. 26-Inspector

Selvam under Ex. P19-Special Report.

P.W. 26-Inspector Selvam also lifted the Finger Prints of the deceased Vijaya, the deceased Guna @ Kathiravan, P.W. 9-Baby and one

Ponnusamy and sent the same to the learned Judicial Magistrate under Ex. P37-Requisition for despatching the same for Finger Print Examination.

On 20.2.2007, accused Manickam was arrested near Bavani bus stop at Chithode Town Police limit in the presence of P.W. 18-V.A.O.

Murugan and another witness. He gave confession statement voluntarily. He took the witnesses as well as P.W. 26-Inspector Selvam to his house

and produced M.O. 12-Blood stained Full shirt and M.O. 13-Blood stained trousers and the same were recovered under Ex. P14-Mahazar in the

presence of the very same witnesses. On the basis of Ex. P13-Admissible portion found in the confession statement voluntarily given by accused

Manickam, M.O. 14-Knife was recovered from a burial ground near Kalingarayanpalayam in the presence of the aforesaid witnesses. Thereafter,

the Finger Print of accused Manickam was lifted and he was remanded to judicial custody. All the material objects recovered were despatched to

the learned Judicial Magistrate under Form 95. On 20.2.2007, P.W. 26-Inspector Selvam examined P.W. 7-Sakthivel, P.W. 8-Gopi, P.W. 12-

Shanmugam, P.W. 14-Jeganathan, P.W. 18-V.A.O. Murugan and other witnesses and recorded their statements. He sent Ex. P38-Requisition to

the learned Judicial Magistrate No. III, Erode, to despatch the Finger Prints lifted in this case to the Finger Print Expert for the purpose of

comparison.

P.W. 16-Dr. Lakshmi, on requisition by P.W. 26-Inspector Selvam, examined accused Manickam and issued Potency Certificate. P.W. 20-Felix

Stephen having compared the Finger Prints sent for examination, submitted Ex. P18-Report, dated 28.1.2008, that the Right Thumb Finger

Impression lifted from accused Manickam did tally with the Finger Print lifted from M.O. 10 Blood stained TVS 50 XL Owner''s Manual Book.

P.W. 24-Head Clerk attached to the learned Judicial Magistrate No. III, Erode, spoke about Ex. P23-Requisition sent by P.W. 26-Inspector

Selvam for sending the material objects for chemical examination; Ex. P24-Covering letter sent by the learned Judicial Magistrate to the Chemical

Examiner and Ex. P26 Chemical Examiner''s Report and Ex. P27-Serologist''s Report received from the Chemical Examiner. P.W. 26-Inspector

Selvam having completed the investigation, laid the Final Report as against accused Manickam for offence punishable u/s 302, IPC (2 counts).

The incriminating circumstances spoken to by the witnesses examined by the prosecution were put to the accused in the form of questionnaire.

The accused came out with a version that he was not involved in the occurrence and that a false case was foisted on him. u/s 233(2), Cr.P.C., he

also submitted a written statement in which he has stated that he having completed his work in the Hotel, came down to his house at about 11.00

p.m. on 18.2.2007 and went to bed. Only in the morning, at about 8.00 a.m. on 19.2.2007, he heard some commotion outside the house and he

came to know that Vijaya and her son Guna @ Kathiravan were murdered. The Police personnel from Chithode Police Station came down to the

scene of occurrence. P.W. 9-Baby and her brother-in-law Ponnusamy also came down to the scene of occurrence. He extended all co-operation

to the Investigation Official during the course of investigation. But unfortunately, he was taken to the Police Station in the very same day evening

and was tortured and his signatures and thumb impressions were obtained in white papers. He was also threatened that he should not disclose

anything to the judicial Magistrate. No confession was given as alleged by the prosecuting agency and no recovery was made at his instance. He

pleaded that he was an innocent person.

The Trial Court having heavily relied upon the chain of circumstances spoken to by P.W. 1-Madheswari, P.W. 7-Sakthivel, P.W. 8-Gopi,

P.W. 10-Iyyappan, P.W. 11-Regupathy, P.W. 12-Shanmugam, P.W. 13-Murugesan and P.W. 14-Jeganathan in the background of Finger Print

Expert''s evidence, Chemical Examiner''s Report and Serologist''s Report, rendered a verdict of conviction and sentence against the accused as

stated supra.

There is no ocular witness in this case to speak about the occurrence. Though it is a case of double murder, no ocular evidence is available on

record to rope in the accused straight away for the offence u/s 302, IPC (2 Counts). P.W. 1-Madheswari and P.W. 9 Baby have spoken to the

fact that accused Manickam had developed illicit intimacy with the deceased Vijaya. In spite of rigourous cross-examination, the defence could not

demolish the version that accused Manickam developed illicit intimacy with the deceased Vijaya. There is also no reason to reject their testimonies.

P.W. 12-Shanmugam, who is none other than the friend of accused Manickam, has categorically stated that on 18.2.2007 accused Manickam

and himself proceeded to watch second show Tamil Film ""EE"" and thereafter, accused Manickam proceeded to his house. P.W. 12-Shanmugam

being the friend of accused Manickam, could not have come out with falsehood before the Court to rope in his own friend.

P.W. 10-Iyyappan, employed under P.W. 11-Regupathy -- Hotelier, has spotted accused Manickam at about 2.00 a.m. on Villarasam

Mariamman Temple Street, which proceeds to the row of houses where accused Manickam and the deceased resided. P.W. 10-Iyyappan had

already served along with accused Manickam in a hotel. No wonder, he could recollect the presence of accused Manickam at the odd hour on the

fateful day. P.W. 7-Sakthivel, who was the neighbour of the deceased Vijaya, is a driver by profession. He had spotted accused Manickam

entering into the house of the deceased Vijaya at about 2.00 a.m. on 19.2.2007 when he was proceeding to the bathroom for passing urine. P.W.

8-Gopi is none other than the son of P.W. 2-Arumugam, house owner of the deceased Vijaya. He has categorically deposed that when he came

out of his house for the purpose of passing urine, he saw accused Manickam emerging out of the house of the deceased Vijaya at about 2.15 a.m.

on 19.2.2007. Not only the deceased Vijaya, but also accused Manickam had taken their respective portions of the houses on rent from P.W. 2-

Arumugam, father of P.W. 8-Gopi and no motive could be attributed to P.W. 8-Gopi.

The next circumstance is spoken to by P.W. 13-Murugesan, car mechanic. He saw accused Manickam at about 3.00 a.m. on 19.2.2007. In

fact, he asked him where he was proceeding. Accused Manickam, who was carrying something in his hands, replied that he was proceeding to his

village. Both, the deceased and the accused, were known to P.W. 13-Murugesan. Therefore, he had enquired about the programme of accused

Manickam at the odd hour when he was in the workshop. His evidence is found to be quite natural.

P.W. 14-Jeganathan comes out with yet another circumstance to rope in accused Manickam in the crime of murder. Accused Manickam came

down to his shop and purchased three cigarettes having paid Rs. 10/- at about 3.30 a.m. on 19.2.2007.

The prosecution has established through the aforesaid testimonies of the witnesses examined on their side that both the deceased were

proceeded to their house at 9.30 p.m. on 18.2.2007. If at all the deceased had scheduled to leave the house during night, they would have

definitely informed P.W. 1-Madheswari. The evidence of P.W. 1-Madheswari would go to show that both of them had gone to their house only

for sleeping during night. P.W. 1-Madheswari''s evidence would go to establish that both the deceased were in their house on the fateful day. The

testimony of P.W. 7-Sakthivel, P.W. 8-Gopi, P.W. 10-Iyyappan, P.W. 12-Shanmugam, P.W. 13-Murugesan and P.W. 14-Jeganathan would

establish that accused Manickam having entered into the house of the deceased Vijaya at 2.00 a.m., came out of her house at 2.15 a.m. and then

proceeded to his village.

The arrest of accused Manickam and recovery of material objects at his instance were established by P.W. 18-V.A.O. Murugan. Ex. P30-

Serology Report would establish that the deceased Vijaya had ''B'' group blood. The apparels and the knife recovered at the instance of accused

Manickam and the apparels recovered from the dead body of the deceased Vijaya and Guna @ Kathiravan were detected with human blood of

''B'' group. No plausible explanation could be given by accused Manickam as to how the human blood of ''B'' group was found in his apparels.

The prosecution would also establish that M.O. 14-Knife recovered from accused Manickam also contained human blood of ''B'' group. Ex. P27-

Serology Report provides a very strong clue about the involvement of accused Manickam in the double murder.

To seal the fate of accused Manickam, P.W. 26-Inspector Selvam, Investigating Officer in this case, lifted the Finger Print of accused

Manickam and the same was sent through the Court for comparison along with the Finger Print found on M.O. 10-Blood stained TVS 50 XL

Owner''s Manual Book. P.W. 20-Felix Stephen, Finger Print Expert, has categorically given an opinion in Ex. P18-Report, dated 28.1.2008, that

the Finger Print of accused Manickam did tally with the Finger Print found in M.O. 10-Blood stained TVS 50 XL Owner''s Manual Book. No

plausible explanation is coming out from accused Manickam to explain as to how his Blood stained Finger Print could be found on M.O. 10, which

was recovered from the bureau on the fateful day in the house of the deceased Vijaya.

P.W. 15-Dr. Sakthivel having found lethal injuries on the neck of both the deceased has categorically opined, in Exs. P4 and P7-Post-mortem

Certificates, that both the deceased would appear to have expired 12-16 hrs. prior to autopsy due to shock and haemorrhage on account of

multiple injuries. With the above referred to chain of circumstances, the prosecution could establish that it was only accused Manickam who

perpetrated the double murder of Vijaya and Guna @ Kathiravan.

The learned counsel appearing for the appellant/accused would submit that the statements of P.W. 7-Sakthivel, P.W. 8-Gopi, P.W. 12-

Shanmugam and P.W. 14-Jeganathan recorded by the Investigating Officer on 20.2.2007 reached the Court only on 21.6.2007 as per the

evidence of P.W. 24-Eswaramurthy, Head Clerk, attached to the Court of Judicial Magistrate No. III, Erode. Therefore, no reliance can be

placed on the evidence of those witnesses.

Per contra, the learned Additional Public Prosecutor would submit that accused Manickam was arrested as early as on 20.2.2007 itself.

Therefore, there could be no occasion for fabricating a case falsely as against accused Manickam. The mere delay in despatching the statements

recorded from those witnesses would not derail the entire case of the prosecution.

It is true that P.W. 7-Sakthivel, P.W. 8-Gopi, P.W. 12-Shanmugam and P.W. 14-Jeganathan had been examined by the Investigating Officer

on 20.2.2007 and their statements reached the Court only on 21.6.2007. As rightly pointed out by the learned Additional Public Prosecutor,

accused Manickam was arrested on 20.2.2007 itself. Therefore, the delay, if any, in despatching the statements recorded from those witnesses

would not create a dent in the case of the prosecution.

The learned counsel appearing for the appellant would further submit that P.W. 7-Sakthivel and P.W. 8-Gopi had not disclosed the fact that

they saw accused Manickam at the odd hours to anyone before confided to the Investigating Officer on 20.2.2007. P.W. 7-Sakthivel is found to

be a driver by profession. It is his evidence that he had left the house at 5.00 a.m. itself on 19.2.2007 to board the lorry and he came down only

on 20.2.2007 and informed the Investigating Officer. P.W. 8-Gopi would state that out of fear he did not disclose the fact that he spotted accused

Manickam at odd hours to anyone till 20.2.2007 when he was examined by the Investigating Officer.

The evidence of P.W. 1-Madheswari and P.W. 9 Baby would go to establish that accused Manickam had an illicit relationship with the

deceased Vijaya. It is not as if P.W. 7-Sakthivel and P.W. 8-Gopi saw accused Manickam actually committing the murder of Vijaya and Guna @

Kathiravan. They just saw, accused Manickam entering into the house at 2.00 a.m. and coming out of the house at 2.15 a.m. respectively. There is

no reason for them to speak falsehood as regards the involvement of accused Manickam in the crime of murder of Vijaya and Guna @

Kathiravan. When the Investigating Officer examined them on 20.2.2007, they came out with the information that they also saw accused

Manickam at 2.00 a.m. when he was entering into the house and at 2.15 a.m. when he was coming out of the house respectively. Therefore, there

is no reason to reject the testimonies of P.W. 7-Sakthivel and P.W. 8-Gopi on the ground that they burked the information for more than one day.

P.W. 11-Regupathy has turned completely hostile to the version of the prosecution. Therefore, it is totally unsafe to rely upon any part of his

evidence.

It is true that P.W. 10-Iyyappan did not specify the date on which he saw accused Manickam, but, if we go through the entire evidence of

P.W. 10-Iyyappan, we can easily come to a decision that he refers to only the date of occurrence. Of course, P.W. 10-Iyyappan would state that

P.W. 11-Regupathy and himself went by TVS 50, whereas, P.W. 11-Regupathy would state that P.W. 10-Iyyappan and himself went by Yamaha

vehicle. As already pointed out by this Court, the evidence of P.W. 11-Regupathy cannot be relied upon to support the defence version as he had

completely turned hostile. Further, the discrepancy as to the vehicle in which P.W. 10-Iyyappan and P.W. 11-Regupathy travelled at the relevant

time does not matter much.

P.W. 12-Shanmugam would state that on 19.2.2007 he was examined by the Investigating Officer and at that time, he found accused

Manickam hand-cuffed. P.W. 26-Inspector Selvam, Investigating Officer, would state that P.W. 12-Shanmugam was examined only on

20.2.2007. Of course, the statement of P.W. 12-Shanmugam has reached the Court only on 21.6.2007. The records would establish that P.W.

12-Shanmugam was examined only on 20.2.2007 and not on 19.2.2007 as deposed by P.W. 12-Shanmugam. On 20.2.2007, accused

Manickam was arrested. No wonder, P.W. 12-Shanmugam has chosen to state that accused Manickam was found handcuffed on the date when

he was examined by the Investigating Officer.

The learned counsel appearing for the appellant would submit that the evidence of P.W. 13-Murugesan, who used to repair the police vehicles,

cannot be relied upon as he was an obliging witness. The testimony of P.W. 14-Jeganathan cannot be safely relied upon as he had allegedly

opened the shop at 3.30 a.m. against the instructions of the police personnel, it is further contended.

Just because P.W. 13-Murugesan used to repair the vehicles of the police personnel, we cannot reject his testimony. It is not as if P.W. 13

Murugesan was planted to speak about the ocular version of murder. He had just spotted accused Manickam at about 3.00 a.m. when he was in

the workshop. As his evidence is found to be natural, it cannot be rejected.

P.W. 14-Jeganathan of course would state that there was an instruction by the police personnel that the shop keepers should not keep open

the shops between 11.00 p.m. and 4.00 a.m. Quite probably, that was the reason why the other shops were closed and his shop was opened, of

course, against the instruction of Bavani police. The opening of the shop by P.W. 14-Jeganathan may incur the wrath of the police personnel, but

his evidence that accused Manickam came to his shop to purchase cigarettes at 3.30 a.m. cannot be disbelieved on the ground that he violated the

instruction floated from the police personnel.

The occurrence is said to have taken place at 2.00 a.m. on 19.2.2007. The complaint was lodged by P.W. 1-Madheswari at 9.00 a.m. and

Ex. P33-Express First Information Report reached the learned Judicial Magistrate No. III, Erode, on the very same day at 3.10 p.m. Firstly, it is

found that the First Information Report does not implicate accused Manickam. If the delay had given rise to fabrication of a story of murder in the

FIR and consequent implication of accused Manickam, then, in that case the delay of six hours for First Information Report to reach the Court will

have to be necessarily explained by the prosecuting agency. But, the appellant was not at all shown as an accused in First Information Report.

Therefore, such a delay does not tilt the case of the prosecution.

It is submitted by the learned counsel appearing for the appellant that P.W. 4-Vasanthi and P.W. 5-Arumugham have spotted accused

Manickam when they were examined on 19.2.2007. Firstly, P.W. 4-Vasanthi would state that one Manickam also was present at the time when

he was examined. He did not specifically state that the said Manickam was the accused. P.W. 5-Arumugham would state that the accused was

present. He did not specifically refer to the accused Manickam. Further, it is found that accused Manickam was arrested on 20.2.2007 itself. As

accused Manickam was arrested on the next day itself, quite probably P.W. 4-Vasanthi and P.W. 5-Arumugham would have come out with a

version that they, in fact, spotted accused Manickam on the day when they were examined, unmindful of the arrest of accused Manickam only on

20.2.2007. There is no reason to discard the evidence of P.W. 18-V.A.O. Murugan with regard to the arrest of accused Manickam, confession

statement recorded from him and the recovery of M.O. 12-Full-hand shirt; M.O. 13-Trousers and M.O. 14-Knife at his instance. In the above

circumstances, we are not inclined to accept the version of accused Manickam that he was all along present in the scene of occurrence from 8.00

a.m. on 19.2.2007 and continued to assist the Investigating Officer.

It is submitted that there was an insertion in Form 95 to include M.O. 11-National Insurance Company Policy thereunder. We find that Ex.

P12-Seizure Mahazar, which speaks about the seizure of M.O. 11-National Insurance Company Policy, reached the Court on 20.2.2007 itself.

Therefore, there could have been no occasion for introduction of M.O. 11-National Insurance Company Policy in Form 95 by way of insertion.

The learned counsel appearing for the appellant would submit that no one spoke about spotting accused Manickam along with the deceased

Vijaya just prior to the occurrence. P.W. 1-Madheswari was categorical that both the deceased proceeded to their house at 9.30 p.m. on

18.2.2007. P.W. 7-Sakthivel has seen accused Manickam entering into the house at 2.00 a.m. on 19.2.2007. P.W. 8-Gopi has witnessed

accused Manickam coming out of the house about 15 minutes thereafter. The above testimony of those witnesses and the other facts and

circumstances of the case, referred to above, would go to show that accused Manickam gained access to the house of the deceased Vijaya when

they were in their house. Of course, the complaint lodged by P.W. 1-Madheswari speaks about the removal of certain tiles in the chimney portion

of the house. Of course, the Investigating Officer should have directed his investigation towards that aspect also. When clinching materials are there

to establish that it was only the accused Manickam, who perpetrated the crime of double murder, the above lapses on the part of the Investigating

Agency do not go to the root of the case.

The learned counsel appearing for the appellant would submit that the Investigating Officer has no authority to lift the Finger Print of accused

Manickam after he was arrested and therefore, the Reports submitted by P.W. 20-Felix Stephen cannot be relied upon as one of the

circumstances.

Section 2(a) of the Identification of Prisoners Act, 1920 (hereinafter referred to as ''The Act'') defines ""measurements"" to include finger

impressions and foot print impressions. Section 4 of the said Act would read that any person who has been arrested in connection with an offence

punishable with rigorous imprisonment for a term of one year or upwards shall, if so required by a Police Officer, allow his measurements to be

taken in the manner prescribed. u/s 5 of the said Act, if a Magistrate is satisfied that, for the purposes of any investigation, it is necessary to direct

any person to allow his finger impression to be taken, he may make an order directing the person concerned to be produced and allow his Finger

Print to be taken by a Police Officer.

As the provisions under the Identification of Prisoners Act, 1920, do not contemplate any prescription for taking the signature or handwriting

of any person including an accused person, the Legislature thought it fit to introduce a new provision u/s 311-A, Cr.P.C. as per the Amendment

Act, 2005, in the aftermath of observations made by the Supreme Court in relation thereto in State of Uttar Pradesh Vs. Ram Babu Misra, . In the

instant case, as the Finger Print was taken from accused Manickam, the provision u/s 311-A, Cr.P.C., 1973, would have no application. The

provision under the Identification of Prisoners Act, 1920, alone would be applicable to the facts and circumstances of this case.

The Supreme Court in Mohd. Aman, Babu Khan and another Vs. State of Rajasthan, observed as follows:

Apart from the above missing link and the suspicious circumstances surrounding the same, there is another circumstance which also casts a serious

mistrust as to genuineness of the evidence, Even though the specimen fingerprints of Mohd. Aman had to be taken on a number of occasions at the

behest of the Bureau, they were never taken before or under the order of a Magistrate in accordance with Section 5 of the Identification of

Prisoners Act. It is true that u/s 4 thereof police is competent to take fingerprints of the accused but to dispel any suspicion as to its bona fides or

to eliminate the possibility of fabrication of evidence it was eminently desirable that they were taken before or under the order of a Magistrate. The

other related infirmity from which the prosecution case suffers is that the brass jug, production of which would have been the best evidence in proof

of the claim of its seizure and subsequent examination by the Bureau, was not produced and exhibited during trial -- for reasons best known to the

prosecution and unknown to the Court. For the foregoing discussion we are unable to sustain the convictions of Mohd. Aman.

The Supreme Court do recognise the competency of the Police Officer to lift the Finger Print of the accused u/s 4 of the Identification of Prisoners

Act, 1920. It has been observed therein that it is desirable to invoke the provision u/s 5 of the Identification of Prisoners Act, 1920, seeking orders

of the learned Judicial Magistrate with a view to dispel any suspicion as to its bona fides.

There is no law which prohibits the Investigating Officer from lifting the Finger Print of the accused for comparison during the course of

investigation of the case. In fact, the provisions found u/s 5 of the Identification of Prisoners Act, 1920, and Section 311-A, Cr.P.C. speak only

about the powers of the learned Judicial Magistrate, when he is approached by the Investigating Officer concerned for a suitable direction to the

accused to co-operate by giving his finger print or signature or sample hand-writing as the case may be. It is to be noted that those provisions do

not put an embargo on the Investigating Officers from acting on their own for lifting the finger print, signature or handwriting of the accused during

the course of investigation. The Supreme Court has not laid down that the Investigating Officer should mandatorily invoke the provision u/s 5 of the

Identification of Prisoners Act, 1920, whenever he resorts to lift the finger print of the accused for the purpose of investigation of the case.

A few years prior to the aforesaid verdict of the Supreme Court, a Bench of this Court in Ravanan Vs. State (Inspector of Police),

Kumbakonam and Another observed, referring to its earlier judgment passed in Shanmughayya and others, Criminal Appeal No. 169 of 1986,

dated 7.2.1992, that the Identification of Prisoners Act, 1920, does not stipulate that Section 5 straightaway refers to the prescription

contemplated u/s 4 of the said Act. It has been further held that the power of the Magistrate u/s 5 of the Act does not seem to affect the power of

a Police Officer, to take finger prints or photographs of the persons arrested in connection with the crime. While holding so, it chose to reject the

submission made by the learned counsel appearing for the appellant/accused that invariably during the course of investigation a person arrested

must be taken before a Magistrate and orders must be obtained before ever the finger print of such persons could be taken by a Police Officer. It

has been categorically held therein that Sections 4 and 5 operate in different fields and obviously if the State Government had made any Rules for

the purpose of carrying into effect the provisions of the Act, the Investigating Officer, ought to have followed such Rules which would fall within the

ambit of ''Prescribed manner'' contemplated u/s 4 of the Act.

The Bench of this Court has already taken a view that the Police Officer need not always resort to Section 5 of the Identification of Prisoners

Act, 1920, when he intends to lift the sample Finger Print of the accused as he has been empowered to act independently u/s 4 of the said Act.

The implication is that whenever an accused does not co-operate, the powers of the Magistrate contemplated u/s 5 of the Identification of

Prisoners Act, 1920, will have to be resorted to by the Police Officer, so that, he will be empowered, if resistance is put up by the accused, to

take all lawful means necessary to secure the finger print or thumb impression of the accused invoking the provision u/s 6 of the said Act.

In K. Dhanasekaran Vs. State by Inspector of Police, C.B., C.I.D., the learned Single Judge of this Court while deciding the question whether

an accused can be convicted based on the sole opinion evidence of the expert, observed, following the dictum laid down in Mohd. Aman''s case

by the Supreme Court, that in order to eliminate the possibility of fabrication of evidence, desirable course contemplated in the aforesaid judgment

of the Supreme Court to resort to the provision u/s 5 of the Identification of Prisoners Act, 1920, was not resorted to.

That was a case where the Trial Court recorded conviction based only on the opinion evidence of the expert. There was no corroboration by

any direct evidence or by any other circumstantial evidence. In such circumstances, addressing the question whether it would be safe to rely upon

such a sole testimony of the expert, the Court answered that the Investigating Officer should have resorted to the provision u/s 5 of the Act to get

permission from the Magistrate in order to attach more sanctity and credibility to the process of lifting sample signature by the Police Officer.

Based on the view expressed in the aforesaid judgment by the learned Single Judge of this Court, we cannot jump to a conclusion that the Police

Officer should totally ignore the provision prescribed u/s 4 of the Act and should resort only to the provision prescribed u/s 5 of the Act seeking

permission to lift the finger print from the accused during the course of investigation. It is to be remembered that in this case the finger print expert''s

opinion is only one of the pieces of circumstantial evidence and not the sole evidence available to be banked on by the prosecuting agency.

The Bench of this Court in Thavaraj Pandian, Palani, Raja and Packianathan Vs. State, held that in the absence of any Rule framed u/s 8 of the

Identification of Prisoners Act, 1920, with respect to the manner of taking finger print as spelt out u/s 4 of the Act, Section 5 of the Act would be

attracted and the Police Officer shall necessarily approach the learned Judicial Magistrate seeking appropriate direction to the accused to give his

finger print.

The Bench, while disposing of the aforesaid case, under the impression that no Rule was framed u/s 8 of the Identification of Prisoners Act,

1920, expressed the view that it was desirable for the State Government to frame appropriate Rules u/s 8 of the Identification of Prisoners Act,

giving clear cut guidelines and procedures indicating the prescribed manner as provided u/s 4 of the Act for taking the finger print of the accused in

custody.

The learned Additional Public Prosecutor produced a copy of G.O. (Ms.) No. 1668, Home (Prison-I) Department, dated 13.11.2007. The

Government passed the said G.O. observing therein that the Government had already framed Rules invoking the power u/s 8 of the Identification

of Prisoners Act, 1920, in the year 1920 itself. But, considering the major developments that has taken place in the scientific arena in identification

of criminals, a full revised Rule styled as ''Tamil Nadu Identification of Prisoners Rules, 2007'' was passed. As per Rule 4(m) of the said Rules, a

Finger Print Expert or a Police Officer of the rank of a police constable or above has been authorised to take finger impressions. Of course the

said revised Rule will not apply to the present case, as occurrence had taken place a few months prior the enactment and enforcement of the

revised Rule.

It is relevant at this stage to refer to the decision of the Supreme Court in State of Tamil Nadu Vs. T. Thulasingam and others, wherein it has

been observed that the finding of the High Court that the bogus nature of the muster rolls has not been established since the Police Officers who

took finger prints were not covered by Section 2(b) of the Identification of Prisoners Act, 1920, is erroneous. Section 2(b) of the Identification of

Prisoners Act defines ""Police Officer"" as an officer in charge of a Police Station; a Police Officer making an investigation under Chapter XIV of the

Code of Criminal Procedure, 1989; or any other Police Officer not below the rank of Sub-Inspector. ""Officer in charge of a Police Station"" u/s

2(b) of the Code of Criminal Procedure is defined as an ""Officer in charge of a Police Station"" including the Station House Officer. The Police

Officers, who took the finger prints, were Head Constables. The taking of finger prints is an act which is of ministerial in nature. The accused

persons have admitted their finger prints. The validity of taking finger print by the Police Constable was not challenged before the Trial Court. In

view of the above, the Supreme Court has observed that the reliance by the High Court on Section 2(b) of the Identification of Prisoners Act,

1920, is erroneous. In the instant case, the appellant has admitted that his thumb impression was obtained on blank sheets by the Investigating

Officer. The validity of the Investigating Officer to lift the finger print from the accused was not challenged by the accused during the course of trial

of the case. Therefore, no occasion had arisen for the Investigating Official to establish that powers conferred on him even under the Police

Standing Orders of the State. Following the aforesaid ratio rendered by the Supreme Court, we find that there is no infirmity in the act of the

Investigating Officer taking sample finger print from the accused for the purpose of investigation of this case.

We find that all the links in the chain of circumstances are found complete. The prosecution has established beyond reasonable doubt with the

above referred chain of circumstances that it was only the accused who committed double murder. We find that the Trial Court has rightly passed

a verdict of conviction as against accused Manickam for double murder and sentenced him thereunder. There is no warrant for interference with

the well merited judgment of the Trial Court. Therefore, the conviction recorded u/s 302, IPC (2 Counts) and the sentence imposed thereunder by

the Trial Court are confirmed and the Appeal is dismissed.