Judgment :- (M. CHOCKALINGAM, J.) 1. This judgment shall govern the following four appeals namely C.A.Nos.416/2008 by A-3, 438/2008 by A-4, 439/2008 by A-2 and 161/2010 by A-1. All these appellants ranked as A-1 to A-4 respectively, along with A-5 stood charged, tried, found guilty and awarded punishment as stated infra: ACCUSED CHARGES FINDING PUNISHMENT A-1 to A-5 120-B of IPC Guilty No separate sentence A-1 to A-4 341 of IPC Guilty 1 month RI A-1 to A-4 302 of IPC Guilty under Sec.302 r/w 120(B) IPC Life imprisonment with a fine of Rs.10000/- and default sentence A-1 to A-4 201 of IPC Guilty 5 years RI with a fine of Rs.2000/- and default sentence A-5 302 read with 120-B of IPC Guilty Life imprisonment with a fine of Rs.10000/- and default sentence 2. The short facts necessary for the disposal of these appeals can be stated as follows: (a) P.W.1 is the father of the deceased. He was a resident of Amman Koil Street, Ooralvoimozhi Village. He had three sons and two daughters, and one of his sons by name Rasiah, the deceased in the case, married A-5.A-5 developed illicit intimacy with A-1, which came to the knowledge of the family members. They warned them. Despite the same, it continued. Thereafter, the deceased and A-5 were living separately. The deceased was working as a loadman in the Fish Company where A-1 was also working.A-1 and A-5 found the deceased as a hurdle to the intimacy. Then they planned to finish him off. They sought the help of A-2 to A-4, and they hatched up a conspiracy as per which they should part with Rs.60000/- in toto out of which Rs.30000/-was actually paid. (b) Pursuant to the conspiracy, on 5.7.2006 at about 8.30 P.M., when the deceased was proceeding in his cycle to the fish company for attending his regular work, A-1 restrained him and pushed him down. When he fell down, A-2 to A-4 caught hold of him, and A-1 attacked him with the spade indiscriminately as a result of which, he died at the spot. Subsequently, A-1 to A-4 took the dead body to a nearby barren land and buried the same. They also threw the cycle and spade in the well nearby and fled away from the place of occurrence. Subsequently, A-1 to A-4 took the dead body to a nearby barren land and buried the same. They also threw the cycle and spade in the well nearby and fled away from the place of occurrence. (c) P.W.1 and his relatives after making a search of the deceased, proceeded to the respondent police station and P.W.1 gave a complaint, Ex.P1, on 8.7.2006 at about 1300 hours.P.W.19, the Sub Inspector of Police, who was on duty that time, received the complaint, Ex.P1, and registered a case in Crime No.127 of 2006 for man missing. The printed FIR, Ex.P18, was despatched to the Court. (d) On receipt of the copy of the FIR, P.W.21, the Inspector of Police of that Circle, took up investigation. Pending the investigation, A-1 was arrested on 11.7.2006, by P.W.21, the Investigator. He came forward to give a confessional statement in the presence of witnesses. The same was recorded. The admissible part of the confessional statement is marked as Ex.P13.Then he took the Investigator and witnesses to the place where the dead body was buried. As far as that place was concerned, the Investigator prepared an observation mahazar, Ex.P3, and also a rough sketch, Ex.P20. Thereafter, a message was sent to the Tahsildar, P.W.20. (e) On receipt of the copy of the FIR, P.W.20 proceeded to the spot and caused exhumation of the dead body. Following the same, a requisition was given to P.W.16, the Doctor, who conducted the postmortem and has issued a postmortem certificate, Ex.P16.The Doctor has given his final opinion under Ex.P17 that the deceased died of complications of the multiple injuries sustained by him. Then the case was altered to Sec.302 of IPC, and the alteration report, Ex.P22, was sent to the Court. (f) Following the same, A-1 also took the investigation party to the nearby well wherefrom he produced M.O.6, cycle, and M.O.7, spade, which were also recovered under a cover of mahazar. Then he was sent for judicial remand. From the confessional statement of A-1, the Investigator came to know about the involvement of the other accused, and A-5 was arrested on the same day. She gave a confessional statement, which was recorded. (g) A-2, A-3 and A-4 were arrested on 12.7.2006. A-2 gave a confessional statement voluntarily, and the same was recorded. The admissible part is marked as Ex.P11. She gave a confessional statement, which was recorded. (g) A-2, A-3 and A-4 were arrested on 12.7.2006. A-2 gave a confessional statement voluntarily, and the same was recorded. The admissible part is marked as Ex.P11. In the presence of witnesses, he produced Rs.30000/-, M.Os.8 to 37, which were recovered under a cover of mahazar. They were sent for judicial remand. (h) The further investigation was taken up by P.W.22, the Inspector of Police. He examined the witnesses and recorded their statements. On completion of the investigation, the Investigator filed the final report. 3. The case was committed to Court of Session, and necessary charges were framed. In order to substantiate the charges, the prosecution marched 22 witnesses and also relied on 22 exhibits and 41 material objects. On completion of the evidence on the side of the prosecution, the accused were questioned under Sec.313 of Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses which they flatly denied as false. No defence witness was examined. The trial Court heard the arguments advanced on either side and took the view that the prosecution has proved the case beyond reasonable doubt in respect of the accused persons and hence, made a judgment of conviction and sentenced them to imprisonment as referred to above. Hence these appeals at the instance of A-1 to A-4 respectively. However, A-5 has not preferred any appeal. 4. Advancing arguments on behalf of the appellants, the respective learned Counsels would submit that the occurrence, according to the prosecution, has taken place on 5.7.2006; but, the complaint was given only on 8.7.2006, and thus, delay was noticed; that the case was originally registered for man missing and not for murder; that the prosecution had no direct evidence to offer, and it rested the case on circumstantial evidence; that the prosecution commenced its story with a conspiracy; that the only one witness was examined for the purpose of conspiracy namely P.W.14, who did not even speak that there was any talk for the payment of money; that he has further deposed that he knew only A-1 and not any other accused; and that insofar as the conspiracy part, it cannot be stated that the prosecution has proved the same. 5. 5. Added further the learned Counsel that as far as A-1 was concerned, according to the Investigator, he was arrested on 11.7.2006, and he gave a confessional statement, and the same was recorded in the presence of witnesses, and then he took the police party to identify the place where the dead body was buried; that according to the witnesses and also the Investigator, he actually identified the place where the dead body was buried at 12.00 P.M., and immediately he was sent for judicial remand; but, according to the Tahsildar, P.W.20, the dead body was exhumed in the afternoon, and at that time, A-1 was not available at all; that under the circumstances, the evidence that he identified the dead body was of no avail, and hence with regard to the identity of the dead body, there was no one to speak. 6. The learned Counsels would further submit that even P.W.1 claimed in the evidence that he identified the dead body of his son; but, in the statement recorded under Sec.161 Cr.P.C., he has not spoken about the same; that apart from that, even the postmortem Doctor has stated that its condition was decomposing, and even the Tahsildar has categorically admitted that the dead body was in a decomposed stage; that under the circumstances, the dead body could not have been identified at all; that in the instant case, the identity itself was questioned by the appellants side; that in such circumstances, a duty was cast upon the Investigator to make a requisition before the concerned Court for sending the skull for the purpose of superimposition test, but not done so, and hence the identity of the deceased was not at all satisfactorily proved. 7. 7. Added further the learned Counsels that as far as the recovery of cycle, M.O.6, was concerned, there was nobody to identify that it belonged to the deceased; that as far as A-2 was concerned, it is claimed by the prosecution that Rs.30000/- was recovered from him; that the witness examined for that purpose was not clear wherefrom it was recovered; that even the conspiracy part which was placed, has nothing to do with this amount; that so long as the payment of the amount pursuant to the conspiracy, was not proved, even assuming the recovery of the amount was actually proved, it will not, in any way, be pointing to the guilt of the accused; that as far as A-2 to A-5 are concerned, the conspiracy witness did not say he knew all of them and if to be so, an identification parade should have been conducted, but not done so. 8. The learned Counsel would further urge that in the instant case, the prosecution has not proved the identity of the deceased or shown that spade, M.O.7, the weapon of crime, was actually recovered; that all would go to show that the prosecution has miserably failed to prove its case; that under the circumstances, they are entitled for acquittal; but, the trial Court has taken an erroneous view, and hence they are all to be acquitted by the Court. 9. The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made. 10. It is not in controversy that following the registration of the case for man missing on 8.7.2006, the dead body was recovered from a well on 11.7.2006, and the same was actually subjected to postmortem by P.W.16, the Doctor, who has also given a categorical opinion that the deceased died of complication of multiple injuries sustained by him. Thus the prosecution was successful enough in proving that the deceased died out of homicidal violence. 11. In the case on hand, the prosecution commenced its story with a conspiracy. Thus the prosecution was successful enough in proving that the deceased died out of homicidal violence. 11. In the case on hand, the prosecution commenced its story with a conspiracy. Admittedly, the deceased was one of the sons of P.W.1, and he also married A-5.The illicit intimacy between A-1 and A-5 was spoken to by P.W.1.The fact that despite warning, they continued to have the illicit intimacy was also spoken to by P.W.1.According to the prosecution, a conspiracy was hatched up by A-1 and A-5 in order to finish the deceased off for which they sought the help of A-2 toA-4, and the consideration was fixed at Rs.60000/- out of which Rs.30000/-was paid, and during investigation, the said amount of Rs.30000/- was recovered from A-2. As far as the conspiracy part is concerned, the prosecution has examined only one witness namely P.W.14. He has candidly admitted that he knew only A-1 and not the other accused. Even his statement recorded under Sec.161 Cr.P.C., has reached the Court after number of months. That apart, he has not even spoken about the fact that at the time when they were conspiring together, they agreed to make a payment of Rs.60000/-out of which Rs.30000/- was paid. Under the circumstances, in the instant case, not even an identification parade was conducted in order to point out the other accused namely A-2 to A-4.Nowhere any witness has stated the presence of A-5 or her involvement. All would go to show that the conspiracy part was one which should be rejected by the Court. 12. Insofar as A-2 was concerned, the prosecution relied only on the recovery of Rs.30000/- alleged to have been made by the Investigator in the presence of P.W.8.So long as the prosecution is unable to show that this amount of Rs.30000/- alleged to have been paid pursuant to the conspiracy, was part and parcel of the amount of Rs.60000/-, even assuming that it has been recovered from A-2, the same by itself cannot be pointing to the complicity of A-2 in the crime in question. Apart from that, it is a case rested upon circumstantial evidence. But, no one witness has identified A-2 to A5 anywhere. Even the identification parade which was a must, was not conducted. All would clearly indicate that the prosecution has miserably failed to prove the role of A-2 to A-5 in the case. Apart from that, it is a case rested upon circumstantial evidence. But, no one witness has identified A-2 to A5 anywhere. Even the identification parade which was a must, was not conducted. All would clearly indicate that the prosecution has miserably failed to prove the role of A-2 to A-5 in the case. It can be well stated that the prosecution has failed to prove the conspiracy theory and also the involvement of A-2 to A-5 by sufficient evidence, and hence they are entitled for acquittal. 13. So far as A-1 is concerned, on scrutiny of the entire materials, this Court is satisfied that the prosecution had a case before the trial Court. In the case on hand, the illicit intimacy between A-1 and A-5 was actually spoken to by P.W.1.The deceased was the husband of A-5, and P.W.1 has also warned A-1 number of occasions. Thus, the prosecution has attributed motive to A-1 for committing the crime. 14. The case of the prosecution is that even at the time of occurrence also it was A-1 who assaulted the deceased with the spade and caused injuries. The case was originally registered on the complaint of P.W.1 on 8.7.2006 for man missing.A-1 at the time of arrest, came forward to give a confessional statement voluntarily, and the same was recorded in the presence of P.W.8, and it was A-1 who took the police party and also the witnesses to the place where the dead body was buried. Had he not identified the place, the dead body could not have been exhumed. P.W.20 has also categorically stated that the dead body was identified from that place. Nowhere it could be noticed that the police or P.W.1 or anybody knew the place where the dead body was buried. It was only A-1 who identified the place where it was buried. 15. Equally, A-1 has also produced the cycle, M.O.6., and also the spade, M.O.7, the weapon of crime, from a nearby well, and they have also been recovered. As per the confessional statement, he attacked the deceased with a spade, which has also been recovered. The recovery of the material objects would also be pointing to the nexus of the crime with A-1. 16. As per the confessional statement, he attacked the deceased with a spade, which has also been recovered. The recovery of the material objects would also be pointing to the nexus of the crime with A-1. 16. The contention put forth by the learned Counsel for the appellants is that the place of burial was actually identified at about 12.00 P.M., and he was immediately sent for judicial remand, and the exhumation of the dead body has taken place in the afternoon. But, P.W.20, the Tahsildar has categorically deposed that A-1 was also present at the time when the dead body was exhumed. Following the exhumation of the dead body, it has been subjected to postmortem by P.W.16, the Doctor. Now, much criticism was levelled against the prosecution evidence that they were unable to identify the dead body that it was the son of P.W.1.But, this contention cannot be accepted. After the dead body was exhumed, the inquest was made, and even the inquest report specifically states all the persons, witnesses and the panchayat dars who are the close relatives and also the people of the place. The Doctor has stated that it was in a decomposed stage. But, the witnesses were able to identify the dead body. In a given case where the dead body was in a decomposed stage and could not be identified, then a test by superimposition becomes necessary. But, in the instant case, it was not at all necessary. It has been clearly identified that it was the son of P.W.1 and the husband of A-5.Thus, in the case on hand, it leaves no doubt in the mind of the Court. So long as A1 has shown the place of burial of the dead body and also produced the material objects and in particular, the weapon of crime, this Court is of the considered opinion that these circumstances would suffice and would indicate the complicity of A-1.Under the circumstances, all the contentions put forth by the learned Counsels for the appellants do not merit acceptance at all. Hence, the act of A-1 would clearly indicate that he has committed the murder and also screened the evidence. Thus A-1 was to be found guilty under Sections 341, 302 and 201 of IPC. The trial Judge was perfectly correct in finding A-1 guilty of murder. 17. Hence, the act of A-1 would clearly indicate that he has committed the murder and also screened the evidence. Thus A-1 was to be found guilty under Sections 341, 302 and 201 of IPC. The trial Judge was perfectly correct in finding A-1 guilty of murder. 17. Accordingly, the conviction of A-1 under Sec.302 read with 120(B) of IPC is modified, and he is convicted under Sec.302 of IPC, and the punishment awarded to A1 by the trial Court in that regard is confirmed. As regards the conviction and sentences imposed on A-1 under Sections 341 and 201 of IPC, they are confirmed. 18. In the result, C.A.Nos.416, 438 and 439 of 2008 are allowed, setting aside the judgment of the trial Court in respect of A-2 to A-4. A-2 to A-4 are acquitted of all the charges levelled against them. The fine amounts if any paid by them, shall be refunded to them. The bail bonds executed by them, shall stand terminated.C.A.No.161 of 2010 is dismissed.