R. Balasubramanian, J. - (1.)APPELLANTS are two in number. They were tried in S.C.No.107 of 2004 on the file of the Additional Court of Sessions (Fast Track Court No.2), Salem under Sections 364 (A) read with 34 I.P.C., 302 read with 34 I.P.C. and 201 read with 34 I.P.C. At the end of the trial, the learned trial Judge found the accused guilty of all the offences, for which they were tried and sentenced each one of them to undergo imprisonment for life together with a fine of Rs.1,000/- carrying a default sentence on each of the first two charges and on the last charge, each one stands sentenced to undergo seven years rigorous imprisonment together with a fine of Rs.1,000/- carrying a default sentence. The sentences stand directed to run concurrently. Hence, the present appeal before this Court. Heard Mr.P.Rathanavel, learned counsel appearing for A1, Mr.C.Selvaraj, learned senior counsel appearing for A2 and Mr.N.R.Elango, learned Additional Public Prosecutor appearing for theState.
(2.)ACCORDING to the prosecution both the accused kidnapped Kannan - young boy on 16.10.2003 at about 4.00 p.m. with a view to get ransom from his father in the course of the same transaction, murdered him and with a view to screen the evidence of offence, they buried the body in the river bed and therefore punishable for the offences referred to earlier. To substantiate their case, the prosecution in all examined P.Ws. 1 to 22 and marked Exs. P.1 to P.30 and M.Os. 1 to 16. The defence on their side examined one witness as D.W.1. However, no documentary evidence was brought before Court at their instance.
P.W.1 and her husband Manoharan (since deceased) are the parents of Kannan, who is the unfortunate victim in the case on hand. According to her, her son studying in fourth standard in a Matriculation School near her house was left in the school at 9.00 a.m. on 16.10.2003 by her and he did not return home in the evening. He informs her husband Manoharan about their son not coming back home after school hours. Enquiries were made and since no useful information was forthcoming, P.W.1's husband went to the police station and gave the complaint. On the next day, when P.W.1 was in her house, P.W.3 came home and told P.W.1 and her husband that on the previous day he noticed around 4.30 p.m. opposite to the school, in which Kannan was studying, two persons - one tall and the other with a fair complexion took Kannan in a TVS 50 motor cycle by making him sit in between the two. P.W.3 also told P.W.1 and her husband that as he was under the impression that both the persons may be the relatives of P.W.1's family he did not take serious note of Kannan being taken by two persons on the previous evening. P.W.3 also told P.W.1 that as he came to know only on the next day that P.W.1's son is missing, he though it fit to give the details of what he saw on the previous evening. Immediately, P.W.1's husband went to the police station and gives a statement containing that information. On the 18th of that month, namely, the third day after the incident, P.W.9 came home and told P.W.1 and her husband as here under:

"There was an incoming call to her house the caller, saying that he is calling from Chennai, said that they have kidnapped P.W.1's son and as they would talk again on the telephone, a request was made to her to keep Manohar, husband of P.W.1 by the side of the telephone". This information was also given by P.W.1's husband to the police and then he went to the house of P.W.9. Manoharan came back around 11.30 a.m. after attending to the incoming call in P.W.9's house and told P.W.1 that the incoming call was at 11.00 a.m. and the caller demanded a sum of Rs.4 lakhs for the release of their son Kannan, who was in their custody. P.W.1's husband also told her that he expressed his inability to the callers to pay so much of money, but however, the caller said that they would again telephone giving the date on which the payment has to be made and the place where the money should be taken. P.W.1's husband also told her that he informed the caller that as P.W.9's house is far away, the call can be made to the house of P.W.10, which is close to P.W.1's house. At 6.00 p.m. on 18.10.2003 P.W.1's husband was informed that there was a call to him on the telephone available in P.W.10's house and he was asked to be by the side of that telephone. Immediately, P.W.1's husband went to P.W.10's house and came back at 8.30 p.m. Once again there was a demand of a sum of Rs.4 lakhs and her husband had agreed to pay only a sum of Rs.20,000/-. This information also P.W.1's husband brought to the notice of the police. It appears that P.W.1's husband was informed by the caller that he would again call him on P.W.10's telephone. On the 19th of the same month, P.W.1 and her husband were informed that there is a call to him on the telephone available at P.W.10's house at 12 noon. Accordingly, P.W.1's husband went to P.W.10's house and came back at 3.30 p.m. stating that there was an incoming call to him on that number and the caller wanted to know whether P.W.1's husband had made ready a sum of Rs.4 lakhs and since P.W.1's husband has expressed his inability to pay so much, the caller came down to Rs.3 lakhs, for which P.W.1's husband had offered only a sum of Rs.50,000/-. P.Ws.1's husband told her that the callers told him that unless a sum of Rs.3 lakhs was paid, Manoharan and his son Kannan would be murdered and they gave out that they have already committed 25 murders. P.W.1's husband also told her that when he wanted the callers to give the phone to his son, they immediately disconnected the phone. P.W.1 and others were weeping on the night of 19.10.2003 and at that time information came to their house that the accused have been arrested in a telephone booth. Immediately P.W.1 and her husband went to the police station, where she found police examining A1 and A2. Both the accused confessed that they kidnapped Kannan and murdered him. On the 20th , namely, on the next day, at about 2.00 p.m. P.W.1 went to the river bed of Swetha river, where the Thasildar and the police personnel were present. The accused were brought there and they pointed out a place where earth was excavated and the dead body was exhumed in the presence of the Thasildar. She found the hands and legs of her son tied and he was wearing M.O.s 1 to 4, which he was wearing on the day when he left for the school. M.O.5 series, M.O.6 series, M.O.7 series and M.O.8 are note books, books, pencil box and the examination writing pad respectively. M.O.9 is the Nylon wire with which her son was found tied. P.W.1's husband had lent a sum of Rs.50,000/- to P.W.4. She had identified her husband's signature in the complaint, which signature stands marked as Ex.P.1. Exs. P.2 and P.3 are her husband's signatures in the subsequent statements given by him to the police.

P.W.20 is the Sub-Inspector of Police during the relevant time. At 8.00 p.m. on 16.10.2003, Manoharan, husband of P.W.1 and since deceased appeared before him and gave a written complaint, which he registered in Crime No.1174 of 2003 under the caption "Man Missing". Ex.P.20 is the report and Ex.P.21 is the printed first information report. He went to the school premises at 9.00 p.m. and in the presence of P.W.7 and another, he prepared Ex.P.5, the observation mahazar and rough Sketch Ex.P.22. By examining P.Ws. 6, 7 and others, he recorded their statements. P.W.20 made elaborate enquiries by examining the relatives and other people. At 9.45 p.m. on 17.10.2003, Manoharan appeared at the police station along with P.W.3 and gave another written statement. Ex.P.23 is the second statement. As per the second statement, the section of offence under Ex.P.20 was altered into one under Section 363 I.P.C. and Ex.P.24 is the altered first information report. P.W.20 examined Manoharan and P.W.3 and recorded their statements. He sent the express records to the higher officials. P.W.7 witnessed the preparation of Ex.P.5 the observation mahazar as spoken to by P.W.20. P.W.6 is the class teacher for Kannan. She would state that Kannan was attending the class on 16.10.2003 and left the class room at 4.00 p.m. on that day. M.O.1 and M.O.2 are their school uniform and M.O.3 is the belt, which the student of their school will wear. The buckle of M.O.3 contains the school logo. P.W.1's husband enquired her around 7.00 or 8.00 p.m. about Kannan not reporting in the house. The police examined her. P.W.7 is the Secretary of the school, who would also depose that Kannan was studying in their school in the fourth standard. He would state that Kannan's father enquired him on 16.10.2003 and all of them searched for Kannan. But they could not find him. He witnessed the preparation of Ex.P.5, the observation mahazar. Pursuant to the direction of Superintendent of Police at 7.00 a.m. on 19.10.2003, P.W.21, the Inspector of Police (Crime Branch) went to the Attur Police Station (Investigating police station) and after a discussion, he had decided to watch all the STD telephone booths at Gengavalli. At about 3.00 p.m., he received information from the Inspector of Police, Attur that from Village No.74, Krishnapuram, the accused have contacted Manoharan, father of the deceased in this case and therefore, P.W.21 must go and watch. Immediately, P.W.21 go to the Village No.74, Krishnapuram and when he was surveilling the telephone booth located in Mariamman Koil Street at Krishnapuram belonging to P.W.13, both the accused emerged from the telephone booth and he immediately apprehended them. P.W.21 after apprehending the accused produced both of them before the Inspector of Police, Attur Police Station at 6.30 p.m., as he is the investigating officer.

P.W.22 is the investigating officer in this case. At about 9.45 a.m. on 18.10.2003, Manoharan appeared before him and told him that the kidnappers have made a call to him in telephone No.233068 in the house of P.W.9 and also told him that the Kidnappers are likely to call again. P.W.22 advised Manoharan to engage himself in the conversation and find out what they are trying to say. Then P.W.22 contacted BSNL telephone exchange and requested them to surveil the said telephone number. Manoharan appeared before P.W.22 once again and told him the details of the call received by him at 11.00 a.m. and the demands made therein and that he had requested the kidnappers to call Manoharan in the telephone available in P.W.10's house, whose telephone number is 252995. P.W.22 again contacted BSNL and requested them to monitor the telephone number 252995 in the house of P.W.10. Manoharan told P.W.22 that even on P.W.10's telephone number there was a call from the kidnappers. P.W.22 traced the incoming call to P.W.9's house to perambalur, and accordingly, he deputed a Sub-Inspector of Police and other police personnel to Perambalur to watch. An incoming call to P.W.9's house was traced to a place called Kadamalai and accordingly, P.W.22 instructed the Sub-Inspector of Police to have surveillance at Kadamalai as well. P.W.22 examined further witnesses by recording their statements. As P.W.22 noticed that the kidnappers were making calls from here and there, he requested the Superintendent of Police to provide a special team and accordingly, the Superintendent of Police deputed a team under the leadership of P.W.21. P.W.22 asked P.W.21 to keep surveillance in Gengavalli area. P.W.22 by contacting BSNL requested them to monitor all calls to telephone number 252995 (P.W.10's telephone number) and P.W.22 was also monitoring the entire situation. There were incoming calls to telephone number 252995 between 2.51 p.m. till 3.21 p.m. on 19.10.2003 from the telephone with indicator number 234086 at Village No.74, Krishnapuram. P.W.22 also contacted 252995 at the same time over his official telephone. That was at 3.13 p.m. Then by contacting BSNL telephone exchange, he located the place where the telephone with indicator number 234086 is located. He immediately instructed P.W.21, who was only at Gengavalli, to go to that place and effect the arrest. We have already referred to earlier in this judgment, the arrest of the suspected accused by P.W.21. Ex.P.25 is the telephone chart given by BSNL telephone exchange for the number 252995. Ex.P.25 shows the details of the incoming calls to 252995 from telephone number 234086. P.W.21 produced the suspected accused before P.W.22 at 6.30 p.m.

P.W.22 arrested the accused in the presence of P.W.8 and another at 10.00 p.m. on 19.10.2003. When the first accused was examined in the presence of P.W.8, he gave a voluntary confession statement, the admissible portion of which is Ex.P.6. A2 also gave a confession statement, the admissible portion of which is Ex.P.7. Pursuant to those confession statements, the section of offence was altered into one under Sections 302 and 364 I.P.C. and Ex.P.26 is the altered express first information report, which was sent to the Court as well as to the higher officials. Since exhumation of the dead body had to be done, he sent Ex.P.27, the requisition to the Thasildar to exhume the body. P.W.3 appeared in the police station on 20.10.2003 and identified the accused. P.W.22 examined P.W.3 and recorded his statement. P.W.22 sent Ex.P.28 requisition to the Thasildar to enquire the accused as to whether their human rights were in any way violated. The Thasildar examined the accused by recording their statement and the entire process was videographed. At 1.45 p.m., P.W.22 , the Thasildar and others were taken to the Swetha River Bed by the accused and on the northern most boundary of the said river the accused pointed out the place where the body was buried. The Thasildar directed exhumation and it was accordingly done. P.W.22 prepared Ex.P.8, the observation mahazar for that place and Ex.P.29, the rough sketch. The Thasildar conducted inquest over the dead body in the same place. P.W.22 examined P.Ws. 1, 2 10 and others by recording their statements. After the inquest, P.W.22 sent a requisition to the doctor to conduct post-mortem at the spot. At the instance of the accused, the Gunny bag used to cover Kannan was recovered from the place identified by the accused two hundred feet south west of the place where the body was exhumed. The accused took the police party to the place where Kannan was murdered and Ex.P.30 is the rough sketch prepared by P.W.22 for that place. At the instance of the accused M.O.s 4 to 8 were also recovered under a mahazar attested by the same witnesses.

(3.)P.W.19 is the police constable, who took the letter given by P.W.22 to the Thasildar, who in turn gave his letter to the Government Hospital at Salem. P.W.19 taking that letter went to the Government Hospital and handed it over to the doctor and there after both of them went to the Swetha river bed, where the dead body was handed over to the doctor for conducting post-mortem. After post-mortem, P.W.19 handed over the dead body to the relatives after removing the shirt, trouser, belt and nylon rope tied on the dead body, which he handed over to the investigating officer. P.W.18 is the Thasildar, Gengavalli and he was in-charge of the office of Thasildar, Attur. On the morning of 20.10.2003, P.W.22 sent him a word that a child's body had been buried in the river bed and P.W.18 sent his letter to the Government Hospital, Salem for conducting post-mortem and he sent that letter through the very same police constable, who brought the intimation from the police officer. At 12.30 p.m. on that day, police produced both the accused before him. P.W.18 gave enough breather to the accused and then examined them. He had taken their signature in their statements. Their statements were sent to the Court. As per the statements, the accused took P.W.18 and the police to the river bed where they pointed out the place where earth was excavated. A Gunny bag was found on such excavation and when the bag was opened, a highly decomposed body of nine years old boy with his hands and legs tied in Nylon rope was found. P.W.18 conducted inquest at the spot itself by examining P.W.12 and others. Ex.P.19 is the inquest report prepared by him. P.W.18 sent a requisition to the hospital for conducting post-mortem. He examined P.W.4 and recorded his statement. He sent all the statements recorded by him to the Court. P.W.17 is the Judicial Magistrate, who examined P.W.4 under Section 164 of the Code of Criminal Procedure pursuant to the orders passed by the Chief Judicial Magistrate. Ex.P.17 series are the request given by the police officer to examine P.W.4 and the orders passed there on by the Chief Judicial Magistrate. Pursuant to the request and orders passed by the Chief Judicial Magistrate, as per Ex.P.18 series, P.W.3 was also examined by him under Section 164 of the Code of Criminal Procedure and his statement was also recorded. P.W.16 is the doctor, who did post-mortem on the dead body. Ex.P.14 is the request sent by the Thasildar asking him to come to the spot. Ex.P.15 is the requisition given by the Thasildar to conduct post-mortem. P.W.16 conducted post-mortem at the place where the dead body was exhumed and he found it to be de-composed. During post-mortem, he found various symptoms, as noted by him, under Ex.P.16, the post-mortem report. The symptoms noted are as here under:
"Injuries: 1. An abrasion on lower lip 0.5 cm x 0.5 cm. 2. An abrasion on upper lip 0.5 cm x 0.5 cm (3) An abrasion on inner aspect of lower lip 0.5 x 0.5 cm (4) Laceration of tongue 1x0.5x0.5 cm. (5) Abrasion on nose 1x0.5cm. (Above injuries are antemortem in nature). Other findings:- Finger nails bluish Tongue & eyes protruded out. Post-mortem fluid oozing from mouth and nostrils. Greenish black discolouration over abdomen & face penis, scrotum and abdomen distended with gas scalp hair-peeled off. Internal: Heart-empty. Liver, Spleen kidneys - decomposed stomach. 100 gms. Undigested coconut white present no smell. Mucosa decomposed Hyoid bone - intact. Ribs - intact. No fractures. Scalp bones membranes - intact. Brain - liquified. Dura - intact. Lungs - congested & decomposed. Petechial haemorrhages present in inter lobar fissures."
Doctor opined that death is due to asphyxia as a result of smothering and death would have occurred three to five days prior to post-mortem.
P.W.22 continued his investigation by examining further witnesses and recording their statements. M.O.11- a TVS 50 Moped Motor Cycle was recovered from the house of A1. The second accused produced M.O.13 from his house, which was also recovered. All the proceedings were videographed. The crime scene was photographed from eleven different angles. M.O.15 series are three C.D. Cassettes and M.O.16 series are two video cassettes. P.W.14 is the photographer, who photographed the dead body on its exhumation. M.O.10 series are the photographs. P.W.8 is the Revenue Inspector during the relevant time at Attur. On a request sent by the Inspector of Police, he went to the police station along with the Village Administrative Officer. He was present when the accused were examined. Exs. P.6 and P.7 are the admissible portion of the confession statements of A1 and A2. He witnessed the preparation of Exs. P.8 and Ex.P.9 observation mahazar and the recovery of M.O.11 from A.1's house under Ex.P.10. He also witnessed the recovery of M.O.12, the Jute Bag under Ex.P.11 and the recovery of M.O.13 under Ex.P.12. He also witnessed the recovery of M.O.s.4 to 8 and 14 under Ex.P.13. P.W.22 came back to the police station with the arrested accused and the incriminating objects. The arrested accused were sent to judicial remand and the case properties were sent to the Court with a requisition to subject the same for chemical examination.

P.W.2 is a neighbour of P.W.1 and he came to know that Kannan was missing from the evening of 16.10.2003 and in that regard P.W.1's husband had given a complaint to the police. He also joined Manoharan in search of Kannan. On 17.10.2003, P.W.3 informed P.W.1's husband that on the previous day evening, he saw Kannan being taken by two persons. P.W.2 was present at that time, when both the accused pointed out the place where the dead body was exhumed. P.W.3 is a coolie by profession and he knows Manoharan - since deceased and his family. At about 4.00 p.m. on 16.10.2003, he saw Kannan being brought by A2 just opposite to the School Kannan was made to sit in the TVS 50 Motor Cycle under the control of A1 A2 also sat on the motor cycle and they went towards the town. Kannan was seated in between A1 and A2 in the motor cycle. He would state that he would identify the motor cycle if he sees it and M.O.1 is the said motor cycle. On 17th , namely, on the next day, he found the parents of Kannan weeping stating that their son is not to be seen and therefore he told them what he saw on the previous day and he accompanied Manoharan to the police station. On the 20th of the same month, he went to the police station, where he found the accused sitting before the Inspector of Police and he was examined by the Judicial Magistrate. He would state that only the accused present in Court have Kidnapped Kannan. P.W.4 is the uncle of A1. He had deposed that he had borrowed a sum of Rs.50,000/- from Manoharan (P.W.1's husband), out of which, he lent a sum of Rs.30,000/- in three instalments to A1, since A1 wanted it for the foreign trip of his junior paternal uncle. A1 was selling plantains and dates. A1 was not paying any interest at all, which in turn affected P.W.4 from paying interest to Manoharan. Manoharan was often pestering P.W.4 for the return of money and P.W.4 told Manoharan that he had parted with the money in favour of A1 and therefore, Manoharan can collect the money from A1. A1 was postponing the repayment. Ten days prior to the death of Kannan in this case, A1 and A2 asked P.W.4 from whom he had borrowed the money, for which P.W.4 replied that he had borrowed from Manoharan. They wanted P.W.4 to show the house of Manoharan and P.W.4 told them the location and pointed out the house of Manoharan. At 6.00 p.m. on 16.10.2003, this witness came to know that Kannan was missing and at 12 noon on 17.10.2003 when P.W.4 was driving his auto-rickshaw in the bazaar, A1 came in his TVS 50 Moped Motor Cycle and intercepted him. Then A1 asked him as to whether there was anything going on in his village, for which P.W.4 answered that Manoharan's son is found missing. Out of curiosity and anxiety, P.W.4 asked him, in the context of he pointing out the house of Manoharan to him ten days earlier to them, as to whether they have done anything, for which A1 replied that in the company of A2, he had kidnapped Kannan and keeping him in secrecy. A1 also told him that P.W.4 should not disclose this to any one and whatever that may come, he would take care of. P.W.4 was so upset on the day on receipt of the information and therefore he went to the police station at 8.00 p.m. to inform the Inspector of Police. Finding that the Inspector of Police was not there, he returned home and on the next day, namely, on 18th, after finishing his day's work of driving the autorickshaw, he informed the Inspector of Police at 10.00 p.m. about the details he know about the crime. Ex.P.4 is his statement to the Inspector of Police.