Judgment :- (Appeals against the judgment dated 31.07.2003 made in S.C.No.230 of 2000 on the file of I Additional Sessions Judge, Dharmapuri District at Krishnagiri.) M. Jeyapaul, J. The second and third accused have preferred Criminal Appeal No.1377 of 2003 and the first accused has preferred Criminal Appeal No.3 of 2005. All the three accused faced a trial for offences under Sections 384 read with 34 IPC, 302 read with 114 IPC and 201 IPC. The learned I-Additional District Judge Dharmapuri at Krishnagiri has returned a verdict convicting all the three accused under Section 384 read with Section 34 IPC and sentenced to undergo three years Rigorous Imprisonment and to pay a fine of Rs.1,000/-, convicted the first accused for the offence under Section 302 IPC and sentenced to undergo Life Imprisonment and to pay a fine of Rs.1,000/- in default to undergo one year Rigorous Imprisonment and convicted the second and third accused for offences under Section 302 read with Section 114 IPC and sentenced to undergo Life Imprisonment and to pay a fine of Rs.5,000/-, in default to undergo one year Rigorous Imprisonment and convicted all the three accused for the offence under Section 201 IPC and sentenced to undergo seven years Rigorous Imprisonment each and to pay a fine of Rs.1,000/- each, in default to undergo a further period of six years Rigorous Imprisonment. 2. As many as 25 witnesses have been examined and 45 documents and 23 material objects have been marked on the side of the prosecution. No oral or documentary evidence was let in on the side of the defence. 3. The case in brief of the prosecution as reflected in the evidence let in on their side is as follows: (i) The Village Administrative Officer, V. Selvaraj (P.W.1) having been informed of a dead body without the head portion lying at the bund of the agricultural land of P.W.2-Shankar and P.W.3-Sakkaresan on 21.09.1992 went straight to the said place and having inspected the same came down to the Bargur Police Station and lodged the First Information Report, Ex.P1. (ii) Shankar P.W.2 and Sakkaresan P.W.3 have spoken to the fact that the trunk of a dead body was found on the bund of their fields. (iii) The Sub-Inspector of Police Mr. (ii) Shankar P.W.2 and Sakkaresan P.W.3 have spoken to the fact that the trunk of a dead body was found on the bund of their fields. (iii) The Sub-Inspector of Police Mr. Murali attached to Bargur Police Station having received the First Information Report Ex.P-1 registered a case in Crime No.406 of 1992 under Section 302 IPC at about 11.30 am on 21.09.1992 and prepared the printed Express First Information Report Ex.P-39. (iv) As the said Sub-Inspector of Police Mr. Murali had been to foreign country, the Inspector of Police Mr. V. Ramamurthy, P.W.24 has spoken to the role of the said Sub-Inspector of Police before the Court. (v) The Inspector of Police, Mr. V. Ramamurthy, P.W.24 having received a copy of the First Information Report Ex.P-39 rushed to the scene of occurrence where the trunk of the dead body was found at about 12.30 pm on the said day and prepared rough sketch Ex.P-40. He made arrangements to take photographs of the trunk of the dead body found over there and the photographs and negatives were marked as Ex.P-41 series. (vi) P.W.24 prepared observation mahazar Ex.P-2 in the presence of the Village Administrative Officer, Jeyagopi, P.W.5. He also held inquest on the trunk of the dead body between 1 pm to 4 pm on 21.09.1992 and prepared inquest report-Ex.P-42, in the presence of witnesses and panchayatdhars. He also summoned sniffer dog squad and requisitioned the services of finger print expert. As the trunk was in a decomposed stage he made arrangement for conducting autopsy by a Doctor at the place where the trunk was found. (vii) On the basis of the requisition-Ex.P-20 sent by P.W.24, Dr.Kalaivani P.W.18 conducted postmortem examination on the trunk of the dead body. The features found on the dead body and the result of internal examination noted down by P.W.18 in her postmortem report Ex.P-21 is as follows: "Appearances found at the Post-Mortem:- Of a male Head and neckless trunk lies on his left lateral side, moderately built, decomposed body. The whole body is decomposed bloated and multiple boils seen all over the body. Lacerated injury over the Thorax at the root of the neck portion measuring 20 cm x 20 cm exposing the Vertebra, muscles and tendons. Internal Examination:- Hyoid bone missing. Heart chambers empty. C/s-pale. Weight 170 gms. Deceomposed. Lungs : Right : 325 gms. Left:- 300 gms. C/s-Pale. Liver : 900 gms. Lacerated injury over the Thorax at the root of the neck portion measuring 20 cm x 20 cm exposing the Vertebra, muscles and tendons. Internal Examination:- Hyoid bone missing. Heart chambers empty. C/s-pale. Weight 170 gms. Deceomposed. Lungs : Right : 325 gms. Left:- 300 gms. C/s-Pale. Liver : 900 gms. C/s-Pale. Decomposed. Spleen : 80 gms. C/s - Pale and decomposed. Stomach contains 200 ml of undigested food particles. Each Kidney weight 75 gms. C/s-Pale and decomposed. Bladder : Empty. Testis - Normal. Bloated due to decomposition." (viii) P.W.24 recovered blood stained earth MO1, sample earth MO2, white button MO3 under seizure mahazar Ex.P-3 in the presence of Jeyagopi P.W.5. The witnesses present over there were examined by the Inspector of Police and their statements were recorded. The Village Menial, Rajagopal, P.W.4 made a publication by beat of tom-tom attracting the attention of the public to identify the trunk which was found at the place stated above. The sniffer dogs did not yield any clue about the author of crime. (ix) S.K.Murthy, P.W.6 is not only related to the second accused Narayana samy, but also related to the deceased Thimma Gowda. When P.W.6 was taking tea in the morning on 26.09.1992 along with Chandrasekaran P.W.7 at Madapalli intersection, the second accused came over there and started weeping. P.Ws. 6 and 7 enquired the whereabouts of Thimma Gowda, the brother of the second accused Narayana samy. The second accused disclosed the whole occurrence leading to the murder of Thimma Gowda. The second accused also informed P.W.6 that Thimma Gowda was murdered by A-1 to A-3 on 09.09.1992 itself. The role of first accused in strangulating the said Thimma Gowda and severing the of Thimma Gowda and the distinct role of each and every accused in distributing trunk, head as well as the attires of the deceased and the accused were disclosed by him. (x) P.W.6 having reduced into writing the whole information (Ex.P-4) furnished by the second accused submitted the same at about 1.00 pm on 26.09.1992 to Bargur Police Station and the same was received by the Sub-Inspector of Police Mr. Murali. The second accused was also taken to the Police Station by P.W.6 and his custody was entrusted to the Inspector of Police P.W.24. (xi) The Inspector of Police P.W.24 took up further investigation in this matter and examined the second accused and obtained his confession statement. Murali. The second accused was also taken to the Police Station by P.W.6 and his custody was entrusted to the Inspector of Police P.W.24. (xi) The Inspector of Police P.W.24 took up further investigation in this matter and examined the second accused and obtained his confession statement. (xii) Based on the admissible portion of the confession statement, the stamp papers MO4 was recovered under seizure mahazar Ex.P-6 in the presence of P.W.6 and another witness. (xiii) On 27.09.1992 at about 3.00 pm the first accused Anthony Samy was arrested by P.W.24 in the presence of the Village Administrative Officer, Kalayana Raman, P.W.9. He also gave a confession statement to P.W.24. On the basis of the admissible portion of the confession statement given by him, at about 6.30 pm on the very same day, the head portion of the dead body of Thimma Gowda was recovered in a land at Elathagiri under seizure mahazar Ex.P-9. At the instance of the first accused Anthony Samy, a thread MO5 and two sticks MO6 were recovered under seizure mahazar Ex.P-10 from the land of one Loordsamy at Elathagiri. The first accused also took the Investigating Officer and the witnesses to his house and facilitated them to recover bill hook MO7 and the stamp paid MO8 under seizure mahazar Ex.P-11. The blood stained shirt MO9 was also recovered on the basis of the confession statement given by the third accused. (xiv) P.W.24 conducted inquest on the head of the dead body and prepared inquest report Ex.P-43 in the presence of panchayatdhars. Srinivasan, P.W.8 who is the nephew of the deceased and the second accused identified the dead body's trunk and the head portion as that of the deceased Thimma Gowda. P.W.24 remanded to judicial custody the material objects recovered in this case. (xv) Dr. Kalaivani, P.W.18 conducted postmortem examination on the head portion of the dead body on 28.09.1992 at about 12.00 noon on the basis of the requisition Ex.P-22 given by the Inspector of Police, P.W.24 and submitted Postmortem Report Ex.P-23. (xvi) As far as the skull portion is concerned the Doctor has noted down the following features in Ex.P-23: "Appearances found at the Post-Mortem:- Only a skull bone. Lower jaw. Cervical vertabra missing. Hair, skin & muscles are all missing. Only the skull bone is visible. (xvi) As far as the skull portion is concerned the Doctor has noted down the following features in Ex.P-23: "Appearances found at the Post-Mortem:- Only a skull bone. Lower jaw. Cervical vertabra missing. Hair, skin & muscles are all missing. Only the skull bone is visible. Internal Examination: On opening the skull bone certain amount of liquified brain matter was found sticking to the inner part of the skull." Dr. Kalaivani, P.W.8 has given an opinion therein that the death was instantaneous due to the severance of head from the body and that the deceased would have died within 48 hours prior to the postmortem examination. (xvii) Govindaraj, P.W.10 is the conductor of a bus who has spoken to the fact that he saw all the three accused along with another person boarding the bus at Krishnagiri bus stand at about 7.48 pm on 19.09.1992. Chinnasamy P.W.11, proprietor of a wine shop has deposed that at about 7.30 pm four persons came to his shop for taking liquor. One among them was found limping. He identified all the three accused in the open Court while the case was in progress before the Trial Court. K. Ramu, P.W.14 would state that the first and second accused purchased stamp papers in the name of the deceased Thimma Gowda. Sathish Kumar-P.W.15 and Muniraj-P.W.16 have also stated that the first accused purchased stamp papers in the name of the deceased. (xviii) P.W.17 Krishnakumar is none other than the scribe working under one Narayanasamy at Krishnagiri. It is his version that all the three accused came down with a request to scribe a sale deed and a Will. He has deposed that Ex.P-17 sale deed and Ex.P-18 have been written by him at the request of the accused herein. As the executant had not put his signature, P.W.17 had not chosen to subscribe his signature to Exs.P-17 and P-18. (xix) Balasubramanian, P.W.21 the then Head Clerk of the Learned Judicial Magistrate, Krishnagiri has spoken to the requisitions Exs. P-29 to P-36 sent to the Forensic Laboratory for the purpose of examination of the material objects recovered in this case. He has spoken to requisition Ex.P-26 and the chemical report Ex.P-27 and Serology report, Ex.P-28. (xx) The investigating officer P.W.24 took steps to send the sale deed Ex.P-17 and the Will Ex.P-18 for the purpose of examination by a finger print expert. He has spoken to requisition Ex.P-26 and the chemical report Ex.P-27 and Serology report, Ex.P-28. (xx) The investigating officer P.W.24 took steps to send the sale deed Ex.P-17 and the Will Ex.P-18 for the purpose of examination by a finger print expert. The finger print expert P.W.23, Shri. M.G. Sankar, has submitted a report Ex.P-38 to the effect that the admitted sample finger prints of the deceased and the Accused 1 to 3 did tally with the finger prints found on those two documents. (xxi) The Inspector of Police Mr. K. Ashokan P.W.25 who took up further investigation in this matter having received the bone report Ex.P-44 and skull report Ex.P-45 and having further examined the postmortem Doctor laid the charge sheet as against all the accused for offences under Section 384 read with Sections 34 and 201 IPC and as against the first accused for offences under Section 302 IPC and as against the second and third accused for offences under Section 302 read with Section 114 IPC. 4. The Trial Court having thoroughly scanned and analysed the evidence on record has come to the conclusion that there is ample circumstantial evidence available on record and consequently he has returned a verdict of conviction as against all the three accused for the aforesaid offences. 5. The learned senior counsel appearing for the second and third accused, the appellants in Crime No.1377 of 2003, would submit that the extra judicial confession of the second accused alleged to have been given to P.W.6 does not inspire confidence. Having pointed out his version during the course of cross examination, the learned senior counsel would further submit that the alleged written confession given by the accused before P.W.6 had not seen the light of the day. It is his submission that P.W.6 has categorically deposed before the Court that he only produced the blank stamp papers, whereas the investigating Officer has come out with a case that certain written stamp papers also were recovered from his possession. The learned senior counsel would further submit that the chain of circumstances spoken to by various witnesses in the after math of the alleged extra judicial confession of the second accused before P.W.6 has been completely concocted for the purpose of this case with a view to give coherence to the case of murder. 6. The learned senior counsel would further submit that the chain of circumstances spoken to by various witnesses in the after math of the alleged extra judicial confession of the second accused before P.W.6 has been completely concocted for the purpose of this case with a view to give coherence to the case of murder. 6. The learned senior counsel would further submit that P.W.8 the alleged nephew of the deceased has not chosen to enquire the whereabouts of the deceased with his uncle A-2 whom he had allegedly spotted on the day when the deceased disappeared. In as much as some of the Court witnesses in this case have chosen to identify the accused only in the Court, their testimony cannot be given due credence. Pointing out the lack of ingredients of alcohol in the viscera report, the learned senior counsel would argue that the testimony of P.W.11 the proprietor of wine shop has to be completely ignored. 7. The learned counsel for the first accused who has preferred a separate criminal appeal No.3 of 2005 would submit that no case has been made out as against the first accused. He would further contend that the first accused had not severed the head of the deceased, as per the version of the prosecution, with a view to murder the deceased and that therefore the question of convicting the accused for the grave offence of murder does not arise in this case. 8. The learned Additional Public Prosecutor for the State would submit that almost all the links in the chain of circumstances projected by the prosecution have been thoroughly established before the Sessions Court. He would contend that the blood stained button of a shirt found at the scene of occurrence did tally with the shirt button of the second accused or the first accused. It is his further submission that the finger print expert's opinion would establish beyond reasonable doubt the involvement of the second and third accused also in this case in the commission of murder. He also urges this Court to rely upon the recovery part of the prosecution story to bring home the guilt to the accused. 9. It is found that there are no eye witnesses to the occurrence. The whole edifice of the prosecution story has been built only on the foundation of circumstantial piece of evidence. 10. He also urges this Court to rely upon the recovery part of the prosecution story to bring home the guilt to the accused. 9. It is found that there are no eye witnesses to the occurrence. The whole edifice of the prosecution story has been built only on the foundation of circumstantial piece of evidence. 10. P.W.6 is none other than the close relative of the second accused and the deceased. It is the case of the prosecution that the second accused came down to P.W.6 and unfolded his heart relating to the occurrence. P.W.6 has categorically deposed that the second accused was virtually wailing when he saw him at the tea stall. Incidentally, P.W.6 has chosen to enquire the whereabouts of Thimma Gowda who was found missing for quite sometime. The second accused has reportedly informed P.W.6 when P.W.7 was also present at that place that all the three accused joined together and committed the ghastly offence of murder. 11. The evidence of P.W.6 would reflect that the second accused was in an emotional state at the time when he disclosed the whole occurrence to him. A person who is afflicted with emotion would definitely come out with what has been stored in his mind to his own kith and kin. In this case the deceased is none other than his own brother. Quite possibly his conscience would have dictated him to come out with the whole truth before his relative whom he happened to see a few days after the occurrence. P.W.6 alone has come out with the version of extra judicial confession of the second accused. Here in this case, it is found that P.W.7 also has lent corroboration to the version of the prosecution that the second accused came out with the extra judicial confession before P.W.6. There is no reason for P.W.7 to speak ill of the second accused. It is not necessary that in all cases the accused should go either before the panchayatdhar or before the Village Administrative Officer to give the extra judicial confession. The Court finds that the extra judicial confession given by the second accused before P.W.6 in the presence of P.W.7 is reliable. 12. P.W.8, Srinivasan, the nephew of the deceased and the second accused has seen all the three accused along with his uncle Thimma Gowda on 19.09.1992. The Court finds that the extra judicial confession given by the second accused before P.W.6 in the presence of P.W.7 is reliable. 12. P.W.8, Srinivasan, the nephew of the deceased and the second accused has seen all the three accused along with his uncle Thimma Gowda on 19.09.1992. Of course, he should have approached the second accused, who is also his relative, to enquire the whereabouts of the deceased who was found in his company a few days earlier. But it is found that he has enquired with the first accused Anthony samy. He has also searched the deceased Thimma Gowda in the house of his other relatives. We do not know what made him not to enquire A-2. Just because he had failed to enquire the whereabouts of the deceased with A-2 Narayanasamy, we cannot throw away his testimony, as it is found that he had enquired with the first accused and also his own relatives. 13. The stamp vendors Sathish Kumar P.W.15 and Muniraj P.W.16 have spoken to the fact that the first accused Anthony Samy purchased stamp papers in the name of Thimma Gowda. Ramu P.W.14 would state that not only the first accused, the second accused Narayana samy also came down to purchase stamp papers in the name of Thimma Gowda. In fact the stamp vendors have chosen to record the names of the first and second accused in the relevant register to vouchsafe the sale of stamp papers to them. Their testimony would disclose that accused 1 and 2 have approached the stamp vendors and purchased the documents for the purpose of execution. No explanation was offered by accused as to why such course was adopted by them. 14. The scribe Krishnakumar P.W.17 has cogently spoken to the fact that he scripted not only the sale deed Ex.A-17 but also the Will Ex.A-18, only as per the instructions of A-1 to A-3. When the executant has not come down to subscribe his signature to those documents he would say that he refused to sign in those documents. This would disclose that accused 1 to 3 were in the process of creating a document. 15. On the basis of the admissible portion of the confession statement of the second accused, the stamp papers purchased from the stamp vendors, Exs.P-14 to P-16 have been recovered from him. This would disclose that accused 1 to 3 were in the process of creating a document. 15. On the basis of the admissible portion of the confession statement of the second accused, the stamp papers purchased from the stamp vendors, Exs.P-14 to P-16 have been recovered from him. The sale deed Ex.P-17 and the Will Ex.P-18 were also recovered on the basis of the confession statement given by the second accused Narayanasamy. 16. On a perusal of those two documents it is found that the thumb impression of the deceased had not been cogently obtained in those documents. We find that some force had been used for the purpose of obtaining the thumb impression of the deceased on those two documents. The irregular fashion in which the thumb impressions had been obtained would attest the above fact. 17. Normally the Investigating Officers would choose to adopt only the conventional method of investigation. But here in this case the investigating officer has chosen to despatch the documents Exs.P-17 and P-18 having suspected that the thumb impressions of the accused might be available over there and got the expert's opinion from the finger print expert P.W.23. P.W.23, having compared the various thumb impressions found over those two documents along with the admitted thumb impression, has come out with an unassailable conclusion that the thumb impressions of the accused were found in those two documents. 18. When the accused were questioned under Section 313 of the Code of Criminal Procedure about the analysis report of the finger print expert, they had feigned ignorance. But they would contend that some finger prints were lifted under threat and coercion by the investigating agency during custodial interrogation. We are not in a position to give much credence to such a cock and bull story of the accused. 19. The apparels of the deceased as well as the accused were recovered only on the basis of the confession statement given by the third accused Nondi @ Venkatesan. The above confession statement of Anthonysamy has led to the recovery of the skull MO1. The extra judicial confession of the second accused would give a clue that it was the first accused, who having severed the head of the deceased Thimma Gowda, scattered it in a different location, of course for the purpose of screening the evidence. The above confession statement of Anthonysamy has led to the recovery of the skull MO1. The extra judicial confession of the second accused would give a clue that it was the first accused, who having severed the head of the deceased Thimma Gowda, scattered it in a different location, of course for the purpose of screening the evidence. As far as the recovery part of the case of the prosecution, the accused have not come out with proper explanation. In the case of State of Maharashtra Vs. Suresh reported in 2000 S.C.C. (Cri.) 263, the Honourable Supreme Court of India has held as follows: "Three possibilities are there when an accused points out the place where a dead body or an incriminating material was concealed without stating that it was concealed by him. One is that he himself would have concealed it. Second is that he would have seen somebody else concealing it. And the third is that he would have been told by another person that it was concealed there. But if the accused declines to tell the criminal court that his knowledge about the concealment was on account of one of the last two possibilities, the criminal court can presume that it was concealed by the accused himself. This is because the accused is the only person who can offer the explanation as to how else he came to know of such concealment and if he chooses to refrain from telling the Court as to how else he came to know of it, the presumption is a well-justified course to be adopted by the criminal court that the concealment was made by him. Such an interpretation is not inconsistent with the principle embodied in Section 27 of the Evidence Act". When the recovery of the material objects have been made only at the instance of the accused, they should come out with a plausible explanation as to such recovery alleged to have been made by the prosecution. The recovery of the material objects would lead to the probable conclusion that those material objects were concealed only by the accused. 20. The postmortem Doctor's testimony in the back ground of her postmortem certificate Exs.P-21 and P-23 would disclose that the severance of the head was the cause for the death of the deceased. The recovery of the material objects would lead to the probable conclusion that those material objects were concealed only by the accused. 20. The postmortem Doctor's testimony in the back ground of her postmortem certificate Exs.P-21 and P-23 would disclose that the severance of the head was the cause for the death of the deceased. The various circumstances spoken to by the witnesses would illustrate the fact that all the three accused were last found in the company of the deceased. But we are not inclined to accept the testimony of Chinnasamy P.W.11, the proprietor of the wine shop, in as much as the viscera report does not disclose that there was any ingredient of wine or liquor therein. But that cannot be construed as a missing link in the chain of circumstances projected by the prosecution. We find that it is an immaterial link in the chain which will not definitely tilt the scale in favour of the accused. 21. The entire evidence adduced by the prosecution would establish that A1 first throttled the neck of the deceased and thereafter severed the head of the deceased and committed the offence of murder. As the Doctor's evidence would disclose that severance of head culminated in the death of the deceased, we find that the death has been caused by the second accused in furtherance of the common intention to murder Thimma Gowda. If at all the deceased had breathed his last while the second and third accused were aiding the first accused to strangulate him, we would have sought the aid of Section 114 IPC to punish the second and third accused for the offence under Section 302 IPC. As the death has occurred only due to the severance of head, we find that the death has been caused by the second accused in furtherance to the common intention of all the accused to cause his death. If there had been no common intention, then the second and third accused would not have permitted the first accused to throttle his neck and subsequently to severe the head of the deceased. 22. There is evidence to show that the accused have thought it fit to amputate the dead body and distribute the trunk and head at different places. If there had been no common intention, then the second and third accused would not have permitted the first accused to throttle his neck and subsequently to severe the head of the deceased. 22. There is evidence to show that the accused have thought it fit to amputate the dead body and distribute the trunk and head at different places. We find that there is evidence to show that the accused have taken sincere efforts to screen the evidence in order to escape from the clutches of law. It is not as if there is no role for the first accused as contended. The first accused had played a vital role in causing the death of Thimma Gowda. The second and third accused have aided in obtaining the thumb impression and caused the death in culmination of their common intention and screened the evidence to escape from punishment. 23. The Trial Court has rightly come to the conclusion that there had been extortion in furtherance of the common intention committed by all the accused and that the first accused has committed the offence of murder. It is a well settled proposition of law that when the Accused has faced trial on the charge under section 302 read with Section 114, there is no impediment to convict him for proved offence under Section 302 read with Section 34 IPC. 24. Hence, for the reasons stated above, we modify their conviction from one under Section 302 read with Section 114 IPC to under Section 302 read with Section 34 IPC. In other respects, there is no warrant for interference with the well considered judgment by the Trial Judge. The judgment passed in S.C.No.230 of 2000 by the I Additional Sessions Judge, Dharmapuri District at Krishnagiri is confirmed and both the appeals, C.A. Nos.1377 of 2003 and 3 of 2005 stand dismissed.