Judgment :- K.P. Sivasubramaniam, J. Human ingenuity appears to be boundless, but the unpleasant fact in this case is that it serves the cause of criminality as well. 2. The petitioner Tmt.Gnanavathy, the wife of one Murugesan, seeks the production of her husband. According to her, he was arrested on 15.3.2004 at about 11.15 p.m. in connection with Crime No.123 of 2004 for alleged offences under Section 65 of the City Police Act and under Section 25(1)(A) of the Indian Arms Act and was remanded to judicial custody. The case was taken on file by Judicial Magistrate No.II, Tuticorin, in C.C.No.440 of 2004 who acquitted him on 15.3.2004. According to the petitioner, her husband was acquitted on the question of identity. The prosecution had shown the name of the father of the accused as Kasi Thevar, whereas, his father's real name is Sankaramuthu Thevar. But in spite of acquittal, he was not let free but kept in custody at the Central Prison, Palayamkotai. Hence, the petition. 3. In the counter affidavit filed by the respondent/ Superintendent of Central Prison, Palayamkottai, after referring to the circumstances under which one Murugesan, son of Kasi Thevar was apprehended for the offences under Section 302 read with Section 34, I.P.C. in S.C.No.95 of 1985 on the file of the District and Sessions Judge, Tirunelveli, it is stated that he was sentenced to death by judgment dated 11.10.1985. He was admitted in the prison on the same day and on appeal, the death sentence was reduced to imprisonment for life by the High Court in Crl.Appeal No.926 of 1985 by judgment dated 8.9.1986. While undergoing life sentence, he was transferred to Central Prison, Cuddalore. He was released on several occasions on application for parole. However, after going on parole in the year 1993, he was absconding and did not return to the prison. The Government was informed about the same. 4. It is further stated that in the meantime, the detenu was produced before the Judicial Magistrate No.II, Tuticorin, in a pending case in Crime No.123 of 2004 under Section 25(1)A of the Arms Act. He was released from the above case as it was held that the charges against him were not proved beyond reasonable doubt vide judgment in C.C.No.440 of 2004 dated 15.3.2004. He was released from the above case as it was held that the charges against him were not proved beyond reasonable doubt vide judgment in C.C.No.440 of 2004 dated 15.3.2004. But he being the accused in S.C.No.95 of 1985, the detenu was rightly retained in the prison to undergo the punishment of life imprisonment. 5. The various contentions raised in the affidavit in support of the petition had been denied by the respondent. The reference to the passport and the renewal of the passport were also denied. 6. It is further stated that there was no person in the name of S.Murugesan, son of Sankaramuthu Thevar as a life convict. Murugesan, son of Kasi Thevar is the person who was detained in prison and the petitioner who came to interview him was informed of the fact. As per the records of the prison, the life convict had absconded and the detenu being the very same person, he was retained in the prison. As far as the life convict was concerned, Tmt.Gnanavathi, wife of the life convict, had earlier requested the Government for the release of her husband and based on her petition, he was accordingly released on parole in 1993. But he was absconding himself for the period between 22.8.1993 to 15.3.1994. The said fact had been suppressed by the petitioner by making a false complaint as if her husband was a different person. The attempt on the part of the petitioner was only to create false records, only to help her husband to escape from custody as a life-convict. She had even shifted her residence to Palayamkottai to obtain a false ration card with a different initial of her husband and to obtain a passport with different address. 7. In this Habeas Corpus Petition, by order dated 27.4.2005, the Division Bench of this Court directed the Chief Judicial Magistrate, Tirunelveli, to conduct an enquiry and to submit a report after investigating both the parties to produce all the relevant materials and the State was also directed to take the finger prints of the individuals concerned, if necessary. 8. The Chief Judicial Magistrate, Tirunelveli, enquired the petitioner (P.W.1) her husband (P.W.2), Sub Inspector of police, Tuticorin, Central Police Station (R.W.1) Pandaram, Assistant, Central Prison, Palayamkottai (R.W.2) and Moorthy, Superintendent of Central Prison (R.W.3). 9. 8. The Chief Judicial Magistrate, Tirunelveli, enquired the petitioner (P.W.1) her husband (P.W.2), Sub Inspector of police, Tuticorin, Central Police Station (R.W.1) Pandaram, Assistant, Central Prison, Palayamkottai (R.W.2) and Moorthy, Superintendent of Central Prison (R.W.3). 9. On the side of the petitioner, Exs.P1 to P10 were marked and on the side of the police, Exs.R1 to R5 were marked. Two sureties, namely, V.Sundarraj and Tmt. Yesavathi who had given surety for Murugesan, the life convict, had been examined as C.W.1 and C.W.2 respectively. A detailed report dated 14.6.2005 was submitted before this Court. 10. After considering the materials in detail, learned Chief Judicial Magistrate had stated that the husband of the petitioner (hereinafter called the detenu) who was the accused in Crime No.123 of 2004 (C.C.No.440 of 2004 – Judicial Magistrate, Tuticorin) was the same individual, Murugesan, son of Kasi Thevar who was convicted in S.C.No.95 of 1985 (hereinafter called the life convict). 11. The following are the ten circumstances relied upon by him for arriving at the said conclusion: (i) The life convict one Murugesan S/o Kasi Thevar has gone on leave to see his ailing family members who are noted as legal heirs of Sankaramuthu Thevar, the father of the detenu in Ex.P1. (ii) The life convict Murugesan S/o.Kasi Thevar has gone on emergency parole on 19.4.89 to attend the funeral of his mother Muthammal Ex.P3 and the evidence of P.W.1 and P.W.2 show that Muthammal is the mother of the detenu. (iii) The detenu while giving confession statement in Cr.No.123/2004 has stated that his father's name is Kasi Thevar and he has referred to the conviction and appeal etc., in the murder case (S.C.No.95/85). (iv) R.W.1, the Sub Inspector of Police, who is said to have been present in the Sessions Court on the date of judgment in the murder case, R.W.2 Pandaram who dealt with release of life convicts on leave, R.W.3 Superintendent of Central Prison, who dealt with the transfer of the life convict Murugesan S/o Kasi Thevar from Palayamcottai to Cuddalore and then from Cuddalore to Palayamcotai have personally identified the detenu as the life convict Murugesan S/o. Kasi Thevar. (v) The identification marks found on the life convict as noted in the warrant of commitment and sentence of death of Murugesan S/o.Kasi Thevar tally with the identification marks on the body of the detenu. (v) The identification marks found on the life convict as noted in the warrant of commitment and sentence of death of Murugesan S/o.Kasi Thevar tally with the identification marks on the body of the detenu. (vi) The charge sheet and the evidence of P.W.1 Chelliah and P.W.2 A.Sudalai in S.C.No.95/85 shows that the father of the life convict Murugesan S/o Sankaramuthu Thevar is the foster son of Kasi Thevar. (vii) Tmt.Gnanavathy the wife of the life convict Murugesan S/o.Kasi Thevar has sent an application for leave to see Somasundarathammal the foster mother. Now Tmt.Gnanavathy in the capacity of the wife of the detenu has filed the H.C.P. (viii) The life convict Murugesan was working in the Madura Coats Mill, Tuticorin. The detenu was also working in the Madura Coats Mill, Tuticorin. (ix) The age of the life convict and the detenu are similar. (x) The signature in the accused statement in C.C.No.440 of 2004 of Judicial Magistrate No.II, Tuticorin to the naked eye resemble with the signatures in the accused statement and the surrender petition found available in S.C.No.95/85 of Principal District Court, Tirunelveli. 12. We had directed the Registry to furnish a copy of the report to the learned counsel for the petitioner and also permitted perusal of the records connected with the enquiry. 13. Mr.G.R.Edmond, learned counsel for the petitioner was critical of the findings of the Chief Judicial Magistrate in the report and contended that on several grounds the learned Judicial Magistrate had not properly analysed the various pieces of evidence submitted on behalf of the petitioner to the contra and also failed to draw proper adverse inference arising out of the failure of the police to produce vital evidence available with the police. Learned counsel also raised the following contentions: (i) No fingerprints of the life convict had been produced for comparison. No photograph of the life convict was made available. Such materials are bound to be available with the police/jail authorities which, for the best reasons known to themselves, had not been produced for verification and comparison. (ii) The father's name of the detenu has always been consistently given as Sankaramuthu Thevar and it is the police which had created confusion by describing his name as Kasi Thevar for which there was no basis. All the documents produced on behalf of the detenu clearly show the name of his father only as Sankaramuthu Thevar. (ii) The father's name of the detenu has always been consistently given as Sankaramuthu Thevar and it is the police which had created confusion by describing his name as Kasi Thevar for which there was no basis. All the documents produced on behalf of the detenu clearly show the name of his father only as Sankaramuthu Thevar. Hence, the findings to the contra is without any basis. (iii) C.W.1 and C.W.2 who were the sureties to release the life convict on bail, did not support the case of the police and did not identify the petitioner at whose instance they are alleged to have given surety to the life convict. (iv) Police had not taken any steps to investigate and enquire the persons who were connected with the Sessions Case, witnesses or co-accused of the life convict who would have been able to easily identify the life convict. (v) No documents pertaining to the life convict such as photographs, thumb impression, signatures, etc., which should be available with the police/jail authorities have been disclosed. (vi) Much reliance was placed by the police on the signature of Gnanavathi, wife of the life convict in her letter dated 9.7.1992. In view of the denial of the said signature by the petitioner, it should have been sent for expert opinion or at least could be sent now for Forensic Expert's opinion in the interest of justice. 14. Mr.K.Doraisamy, learned Public Prosecutor, contended that this is a case of highhanded attitude and fraudulent attempt on the part of the petitioner to deceive the law. Even though photograph or thumb impression of the life convict were not available, yet, even with the available material and information relating to the life convict, there was overwhelming evidence to come to the conclusion that that the detenu is the same person as the life convict. The life convict was absconding from 1993. An analysis of the materials disclose that the name of the parents, wife, brothers and sisters were identical. And most importantly, the signature in the letter submitted by the wife of the convict was exactly identical and similar to the admitted signatures of the petitioner. The identification marks tallied. There was no variation in the name of the father, bearing in mind that the two names are referable to natural father and adoptive father. And most importantly, the signature in the letter submitted by the wife of the convict was exactly identical and similar to the admitted signatures of the petitioner. The identification marks tallied. There was no variation in the name of the father, bearing in mind that the two names are referable to natural father and adoptive father. Likewise, the name of the mother also differs due to the fact that one was a natural mother and the other was the adoptive mother. The identity between the two persons as being one and the same person, is clearly established. As regards the demand for sending the signature of the detenu for expert opinion, learned Public Prosecutor contends that this is nothing but an attempt to divert and delay the proceedings. It is settled proposition that when the similarity of the two contested signatures are clear to the naked eye, then there is no reason for seeking any opinion from the expert. 15. We have considered the issues arising out of the strange and unusual case of this type with the seriousness with which the issue requires to be considered. Any conclusion to be arrived at by us wrongly is sure to result in a great injustice to the detenu. Bearing in mind the said position, we have considered the materials before us independent of the reasonings rendered by the learned Judicial Magistrate and the following are our reasons for agreeing with those conclusions. As we we do not propose to repeat the several cogent reasons given by the learned Judicial Magistrate, we are inclined to annex the report as annexure of this order. (i) The variation in the name of the father is properly explained. While according to the petitioner the name of the father of the detenu is Sankaramuthu Thevar, the name of the father of the life convict is shown as Kasi Thevar. On an analysis of the materials, it is found that Kasi Thevar is the adoptive father and Sankaramuthu Thevar was the natural father. This is evident from the charge sheet in S.C.No.95/1985 pertaining to the life convict. (ii) It is also seen that the probationary officer, while forwarding the letter of the life convict asking for leave, had referred to the name as Somasundaram Ammal as the adoptive mother. This is evident from the charge sheet in S.C.No.95/1985 pertaining to the life convict. (ii) It is also seen that the probationary officer, while forwarding the letter of the life convict asking for leave, had referred to the name as Somasundaram Ammal as the adoptive mother. (iii) In the confession statement of the detenu dated 15.3.2004, the name of the detenu has been given as son of Kasi Thevar. The detenu had not raised any protest or objection when he was remanded to judicial custody on 16.3.2004. The objection came in only later. (iv) The following are the three identification marks found on the body of Murugesan son of Kasi Thevar. They are also found in the body of the detenu. (a) A mole on the left flank; (b) A mole on the right chest; and (c) A on the centre of the forehead. (v) A comparison of the legal heirship certificate of the detenu (Ex.P1) and the evidence of R.W.3, the Superintendent of Central Prison with reference to the names of some of the family members of the life convict, whose names have been given as persons for whose benefit the life convict had applied for and gone on leave, would bring out the unmistakable similarity. On 20.2.1992, the name of the wife is given as M.Gnanavathy. On 18.4.1992, the name of Manoharan (brother) is given. On 21.5.1992, the name of Manickathammal (sister) is mentioned. On 2.1.1993, the name of Banumathi (sister) is mentioned. All these names with particular reference to the relationship with the detenu find place in the legal heirship certificate of the detenu. (vi) All the three respondents/witnesses, namely, Sub Inspector of Police (R.W.1) who had dealt with the life convict in the Sessions Court; R.W.2, who was concerned with the release of the life convict on leave; and R.W.3, the Superintendent of Central Prison, who had dealt with the transfer of the life convict from Palayamkottai to Cuddalore, being persons who are personally aware of the life convict, had clearly and unhesitatingly identified him as the detenu. (vii) The details pertaining to the employment of both persons disclose that Madura Coats Mill, Tuticorin was the employer. (viii) Age of both persons are identical and there is no variation. (vii) The details pertaining to the employment of both persons disclose that Madura Coats Mill, Tuticorin was the employer. (viii) Age of both persons are identical and there is no variation. (ix) It is true that the Forensic Department had returned the papers sent for comparative analysis of the signature of both the detenu and the life convict by stating that it was not possible to offer any opinion in view of the gap of 19 years between the two signatures and as no more documents were available. Such return alone cannot lead to any adverse conclusion. In fact, a comparative observation discloses overwhelming similarity except for the initial, which is given as "S" by the detenu. The word "Murugesan" in both the set of documents resembles very closely with each other in spite of passage of 19 years. (x) The fact that C.W.1 and C.W.2, the two individuals who had given surety to the life convict, did not identify the detenu, is immaterial. C.W.1 (Sundarrajan) states that he had not seen the life convict in person and that he had given the surety only on the request of C.W.2, Yesavathy. C.W.2 states that she gave surety to the life convict as the wife of the life convict was known to her as she had made a request to let her premises on rent. She further states that after the life convict had absconded, she had to pay the fine. In the record of evidence by her, no mention is made about the life convict. But she had denied that P.W.1 was Gnanavathi to whom she had let her house. The statements of these two witnesses are very doubtful and shady and appears to be motivated. One of them is (C.W.1) prepared to stand as surety to an unknown person. The other person (C.W.2) knows only the wife and not the life convict. Their statement is not worthy of acceptance. It is also possible that they may be afraid and do not want to keep themselves involved in a complicated police/criminal case. Their statements deserve to be completely eschewed as they are neither in favour of the petitioner nor the police and therefore, unworthy of acceptance. Their statement is not worthy of acceptance. It is also possible that they may be afraid and do not want to keep themselves involved in a complicated police/criminal case. Their statements deserve to be completely eschewed as they are neither in favour of the petitioner nor the police and therefore, unworthy of acceptance. (xi) The most significant feature which belies the claims of the petitioner is the signature dated 9.11.1992 of the wife of the life convict, addressed to the Law Minister, requesting the release of the life convict. The signature of M.Gnanavathi in Tamil is the same and identical as that of the petitioner as available in the affidavit filed by her in support of the H.C.P. and the Electoral Card marked as Ex.P4. On a mere perusal by naked eye, it is clear that the signature in the letter dated 9.11.1992 is exactly the same and identical to that of the admitted signatures. Every word inclusive of the initial in English "M" is the same and identical, giving no room for any doubt. The request on behalf of the petitioner that it may be sent for expert examination is nothing but a desperate attempt to save her own face in having indulged in a highly reprehensible conduct of fraud and misleading and abuse of process of the Court. It is settled proposition that the need to send the handwriting to the expert arises only when there is any doubt. When on a simple observation there is no doubt regarding similarity, no need arises and no purpose would be served in delaying the proceedings further. It is also settled proposition that even expert opinion need not bind the ultimate opinion of the Court. As we are convinced with the overwhelming material against the petitioner as well as the similarity of the signature, we had told the learned counsel that if the petitioner was insistent about the signature being sent to the expert, she should deposit a sum of Rs.50,000/- which would be forfeited if the signature was found to be tallying. The petitioner was not prepared to accept the offer, which would show that the petitioner herself is not confident of the result. The petitioner was not prepared to accept the offer, which would show that the petitioner herself is not confident of the result. It is true that depositing or forfeiting the said amount need not and should not be a pre-condition for sending the document for expert opinion, if the Court feels that it is necessary in the interest of justice to send the document. But the refusal of the petitioner to accept the offer is not compatible either with her own assertion of the truth of her claims or the seriousness of the issue of her husband being behind the bars as a life convict on a mistaken identity. This is the level of seriousness or sincerity with which the petitioner had insisted on an enquiry regarding the identity. The petitioner should have fairly resigned herself to the inevitable at least after the counter affidavit was filed in the H.C.P. But on the other hand, she had insisted on an enquiry and even after the enquiry by a Judicial Magistrate and the clear and unquestionable findings, the petitioner had even thereafter thought it fit to raise untenable contentions. 16. For all the aforesaid reasons, we do not find any ground to disagree with the findings in the enquiry. The comment that the respondent should have produced the thumb impressions and the photograph of the life convict and should have examined the witnesses who had deposed in the Sessions Case, etc., cannot at all be appreciated in the background of the fact that such records are not available and the individuals are not traceable. In normal circumstances, the respondents should have maintained the records of the convicts and in fact, it is only on the said assumption, this Court had adjourned the hearing earlier once or twice to find out whether such materials are available. But when they are not available, it does not follow that this Court should disregard all the overwhelming materials which are available now, which are more than sufficient to disprove the claims of the petitioner. 17. It is true that under Form No.6 to Appendix IX of the Tamil Nadu Prison Manual, various particulars are required to be recorded in the convict register of the prison including the thumb impression or signature. 17. It is true that under Form No.6 to Appendix IX of the Tamil Nadu Prison Manual, various particulars are required to be recorded in the convict register of the prison including the thumb impression or signature. But the mere inability to produce those records which appear to have been destroyed due to passage of time is not a factor to be taken advantage of by persons like the petitioner and the detenu who are faced with unanswerable materials against them. Allowing such challenges to be made in a case of this type with all the abundant materials would only lead to very undesirable consequences. 18. Names of parents, wife, sisters and brothers, age, same employer, identity marks, signature of the wife, - every thing correspond with each other and if the petitioner thinks that she could still persist in her attempt to deceive the authorities and the Court, such an attitude is highly deplorable. 19. With the result, we are inclined to hold that the H.C.P. is totally misconceived and is a very serious and actionable abuse of process. We wish to say nothing further as we do not want to add to the misery of the petitioner and the detenu though they do not deserve any such sympathy. The Habeas Corpus Petition is dismissed.