The State is the appellant, whereas the accused 1 to 4 are therespondents.The Inspector of Police attached to Papanasam Police Station(Thanjavaur District) had laid a final report on 31.12.2007 on the file ofthe District Munsif-cum-Judicial Magistrate Court, Papanasam, as against therespondents 1 to 4 herein alleging that they had committed the offencespunishable under Section 302 and 302 r/w 34 of I.P.C.After the completion of preliminary enquiry, the case wascommitted to the Court of Sessions by the learned District Munsif-cum-Judicial Magistrate, Papanasam and after the appearance of therespondents/accused, the learned I Additional Sessions Judge (PCR), ThanjavurSessions Division had framed the following two charges.a. As against the first respondent/A1 under Section 302 of I.P.C.b. As against the respondents/accused 2 to 4 under Section 302r/w 34 of I.P.C.When the ingredients of the charges were explained andquestioned all the four respondents/accused had pleaded innocence and wantedto face the trial and therefore, they were put on trial.In order to substantiate their case, the prosecution hastotally examined 21 witnesses and during the course of their examination,Exs.P.1 to P.16 and the material objects ranging from M.Os.1 to 13 weremarked.The Gravamen of the Prosecution Case:-That on 3.10.2007 at about 11.45 hours when the deceasedMurthy @ Venkatachalam was conversing with his brother Senthil (P.W.1) inthe railway station road at Papanasam, in front of Muniyandi Vilas Hotel, allthe accused came there and due to previous enmity because of taking part inthe Papanasam New Bus Stand cycle stand auction had picked up quarrel withthe deceased and on account of the common object of committing the murderof the deceased, the first respondent/A1 had fisted on his left cheek, whilethe third respondent/A3 had kicked him.When the deceased had fallen onthe road, the fourth respondent had mounted on his chest and fisted on hisleft cheek.When the deceased Murthy @ Venkatachalam was trying to getup after pushing away the fourth respondent, the first respondent/A1 hadcaught hold him and both the first respondent/A1 and the deceased hadrolled over and thereafter, the deceased had managed to get up and proceededtowards South.While so, the second respondent/A2 had pushed him down onthe ground making the deceased to fall on the road in front of Nice Tailorshop.When he had fallen down, the third and fourthrespondents/accused 3 and 4 had caught hold his right and left handsrespectively.The second respondent/A2 had also caught hold of his bothlegs so as to facilitate the first respondent/A1 to kill him with a cementconcrete stone.The first respondent/A1 had lifted the cement concretestone and dropped on the head of the deceased repeatedly, which resulted inhis instantaneous death.When P.W.1 being the brother of the decased and P.Ws.2 and 3being the friends of P.W.1 were tried to rescue the deceased, they werethreatened with dire consequences by the respondents/accused persons andafter the completion of the occurrence, the accused persons had gone away.Then P.W.8 came there and on the narration of P.W.1, P.W.8Kaliamurthy reduced the same into writing and both of them had presentedthat complaint (Ex.He immediately after the receipt of that complaint hadregistered a case in Papanasam Police Station Cr.The State is the appellant, whereas the accused 1 to 4 are therespondents.In order to substantiate their case, the prosecution hastotally examined 21 witnesses and during the course of their examination,Exs.P.1 to P.16 and the material objects ranging from M.Os.1 to 13 weremarked.The Gravamen of the Prosecution Case:-That on 3.10.2007 at about 11.45 hours when the deceasedMurthy @ Venkatachalam was conversing with his brother Senthil (P.W.1) inthe railway station road at Papanasam, in front of Muniyandi Vilas Hotel, allthe accused came there and due to previous enmity because of taking part inthe Papanasam New Bus Stand cycle stand auction had picked up quarrel withthe deceased and on account of the common object of committing the murderof the deceased, the first respondent/A1 had fisted on his left cheek, whilethe third respondent/A3 had kicked him.When the deceased had fallen onthe road, the fourth respondent had mounted on his chest and fisted on hisleft cheek.When the deceased Murthy @ Venkatachalam was trying to getup after pushing away the fourth respondent, the first respondent/A1 hadcaught hold him and both the first respondent/A1 and the deceased hadrolled over and thereafter, the deceased had managed to get up and proceededtowards South.While so, the second respondent/A2 had pushed him down onthe ground making the deceased to fall on the road in front of Nice Tailorshop.When he had fallen down, the third and fourthrespondents/accused 3 and 4 had caught hold his right and left handsrespectively.The second respondent/A2 had also caught hold of his bothlegs so as to facilitate the first respondent/A1 to kill him with a cementconcrete stone.The first respondent/A1 had lifted the cement concretestone and dropped on the head of the deceased repeatedly, which resulted inhis instantaneous death.When P.W.1 being the brother of the decased and P.Ws.2 and 3being the friends of P.W.1 were tried to rescue the deceased, they werethreatened with dire consequences by the respondents/accused persons andafter the completion of the occurrence, the accused persons had gone away.Then P.W.8 came there and on the narration of P.W.1, P.W.8Kaliamurthy reduced the same into writing and both of them had presentedthat complaint (Ex.Further, P.W.1 is none other than the younger brother ofthe deceased, whereas P.Ws.2 and 3 are his friends.According to the caseof prosecution that at about 11.45 p.m. on 3.10.2007 while P.Ws.1 to 3were returning to their home after purchasing the diesel, in front of theMuniyandi Vilas Hotel, P.W.1's brother Murthy @ Venkatachalam, who is thedeceased herein, was standing there and on seeing him, P.W.1 had toldP.Ws.2 and 3 that he wanted to go to see his brother.While so, A1 to A4 came there.The first respondent/A1had asked him ?eP vd;dlh bghpa Msh? while saying so, he had fisted overhis face.While the third respondent had kicked him and on receiving thatblow, the deceased had fallen down.When he was trying to get up the fourthrespondent/A4 sat on the chest of the deceased and slapped on his cheek.The deceased pushed him off away and got up and subsequently, he wastrying to proceed further, but the fourth respondent/A4 had not allowed himto go away.While so, the first respondent/A1 Senthil had caught holdhim and rolled along with the deceased on the ground.Thereafter, thedeceased got up and proceeded towards South.While so, the secondrespondent/A2 had pushed the deceased down in front of the Nice Tailoringshop and on account of this reason, the deceased had fallen on his back,while the other accused persons, viz., A2 to A4 had caught hold of his legsand hands, the first respondent/A1 had lifted M.O.1 Cement Concrete Stone ,which was found lying there and dropped it over his head and on receivingthe head injury, the deceased had died on the spot instantaneously.When the occurrence was taken place all the three witnesseswere simply watching the incident.Neither P.W.1 nor P.W.2 or P.W.3 weretrying to rescue the deceased.The conduct of P.Ws.1 to 3 seems to beunusual and therefore, their presence in the place of occurrence is doubtedand further on a combined reading of the evidences of P.Ws.1 to 3 along withthe evidence of P.W.8, who is the scribe the complaint, we find a lot ofinfirmities and contradictions between their evidences.As afore stated, including P.W.1 there were three witnesses.In spite of this, P.Ws.1 to 3 havenot properly explained as to why they were not making any attempt to savethe deceased.With regard to the lodging of the complaint, P.W.1 saysthat the police people after lodging of the complaint came to the place ofoccurrence on the next day.No.201 of 2007 underSections 342 and 302 r/w 34 of I.P.C. The printed first information reportwas marked as Ex.Thereafter, the complaint Ex.P.1 and the first informationreport Ex.Subsequently, P.W.21 had been to the place ofoccurrence, inspected the same and prepared an observation mahazar Ex.Then, he had also seized the cement concrete stone M.O.1,which was said to have been used by the first accused to kill the deceasedand other material objects viz., blood stained earth and some unbloodstained earth etc. ranging from M.O.8 to M.O.13 under a seizure mahazarEx.P.W.14 Dr. Rajmohan attached to Papanasam Govt. Hospitalhad conducted post mortem examination on the dead body of the deceased.While so, he had found the following external as well as internal injurieson the dead body as under:-1. 5 x 1 x 4 cm laceration just below left eye.2. 8 x 2 x 1 cm lacerated wound in the left forehead.3. 7 x 2 x 1 cm laceration near the 2nd injury.4. 11 x 3 x 2 cm lacerated wound in the right parietal region.Head deformed, crepitation felt over the cranium.Thoax : no rib fracture, heart ? 300 gms.Chambers emply.Bothlungs normal.Hyoid bone intact.Abdomen ? uniform, level of diaphragmnormal.Stomach distended with semi digested food.Liver ? 1600 gms, firmDATED :31.10.2014CORAMTHE HONOURABLE MR.JUSTICE S.RAJESWARANANDTHE HONOURABLE MR.JUSTICE T.MATHIVANANCriminal Appeal (MD) No.216 OF 2010State represented byThe Inspector of PolicePapanasam Police StationThanjavur District ... Appellant Vs.3.Prabhu @ Prabhu Gopinath ... RespondentsPrayer : Appeal is filed under Section 378 of the Code of Criminal Procedure,against the Judgment dated 18.1.2010 and made in S.C.No.73 of 2009 on thefile of the learned I Additional Sessions Judge (Protection of Civil Rights),Thanjavur.The Inspector of Police attached to Papanasam Police Station(Thanjavaur District) had laid a final report on 31.12.2007 on the file ofthe District Munsif-cum-Judicial Magistrate Court, Papanasam, as against therespondents 1 to 4 herein alleging that they had committed the offencespunishable under Section 302 and 302 r/w 34 of I.P.C.After the completion of preliminary enquiry, the case wascommitted to the Court of Sessions by the learned District Munsif-cum-Judicial Magistrate, Papanasam and after the appearance of therespondents/accused, the learned I Additional Sessions Judge (PCR), ThanjavurSessions Division had framed the following two charges.a. As against the first respondent/A1 under Section 302 of I.P.C.b. As against the respondents/accused 2 to 4 under Section 302r/w 34 of I.P.C.When the ingredients of the charges were explained andquestioned all the four respondents/accused had pleaded innocence and wantedto face the trial and therefore, they were put on trial.He immediately after the receipt of that complaint hadregistered a case in Papanasam Police Station Cr.No.201 of 2007 underSections 342 and 302 r/w 34 of I.P.C. The printed first information reportwas marked as Ex.Thereafter, the complaint Ex.P.1 and the first informationreport Ex.Subsequently, P.W.21 had been to the place ofoccurrence, inspected the same and prepared an observation mahazar Ex.Then, he had also seized the cement concrete stone M.O.1,which was said to have been used by the first accused to kill the deceasedand other material objects viz., blood stained earth and some unbloodstained earth etc. ranging from M.O.8 to M.O.13 under a seizure mahazarEx.P.W.14 Dr. Rajmohan attached to Papanasam Govt. Hospitalhad conducted post mortem examination on the dead body of the deceased.While so, he had found the following external as well as internal injurieson the dead body as under:-1. 5 x 1 x 4 cm laceration just below left eye.2. 8 x 2 x 1 cm lacerated wound in the left forehead.3. 7 x 2 x 1 cm laceration near the 2nd injury.4. 11 x 3 x 2 cm lacerated wound in the right parietal region.Head deformed, crepitation felt over the cranium.Thoax : no rib fracture, heart ? 300 gms.Chambers emply.Bothlungs normal.Hyoid bone intact.Abdomen ? uniform, level of diaphragmnormal.Stomach distended with semi digested food.Liver ? 1600 gms, firmspleen 100 gms, firm, kidney ? normal, small intestine normal.Largeintestine distended with gas, bladder empty.Opening of Head:11 x 3 x 2 cm lacerated wound in the right parietal region with(nc) hematoma extending from right frontal to right temporo occipitalregion.Ring fracture of skull extending from frontal temporal andoccipital region.Clotted blood in the dura matter of right parietal region.Laceration 4 x 5 x 2 cm in the right fronto parietal lobe with 5 ml ofclotted blood.15 ml of clotted blood present in the base of skull.Laceration 4 x 2 x 1 cm left temporal lobe.Spinal column intact.After the completion of his examination, he had issued apost mortem certificate Ex.P.13, wherein he has opined that the deceasedwould appear to have died of injury to vital organ such as brain and due tohaemorrhagic shock 11 to 12 hours prior to autopsy.Thereafter, P.W.21 had examined witnesses and recordedtheir statements and after the completion of the investigation he had laid afinal report against the respondents/accused before the District Munsif-cum-Judicial Magistrate Court, Papanasam, as afore stated.When the incriminating circumstances arising out of thetestimonies of the prosecution witnesses were put to the respondents/accusedduring the course of the proceedings under Section 313(1)(b) Cr.P.C., theyreplied that they had nothing to do with the allegations levelled againstthem and that this case was foisted against them.Though they had stated that they were going to examine thewitnesses on their part, nobody was examined and no documentary evidencewas also adduced.With the evidence of P.W.21, the prosecution has closedits side.On evaluating the evidences both oral and documentary, thelearned Additional Sessions Judge (PCR) had found the respondents/accused 1to 4 not guilty and therefore, they were acquitted of the charges underSection 302 and 302 r/w34 of I.P.C.Challenging the order of the acquittal, the Staterepresented by the Inspector of Police, Papanasam Police Station haspreferred this present appeal.Heard Mr.C. Mayil Vahana Rajendran, learned Additional PublicProsecutor appearing for the appellant and Mr.M.Karunanithi, learned counselappearing for the respondents/accused.Before we go into the merits of the case , we would like tohighlight that the prosecution witnesses 4 to 7, 9 to 11, 13 and 15 have notsupported the case of the prosecution as they have turned hostile.Barring their evidences, the remaining witnesses P.Ws.1 to3, who claim to be the eye witnesses and P.W.8, who is the scribe of thecomplaint Ex.P.1 and the testimonies of P.W.12 are available.Apart from this, the testimonies of official witnesses,i.e., P.W.14 Post Mortem Dr. Rajmohan and other official witnesses P.W.16and P.W.21 are also available.However, the learned Additional Public Prosecutor hasadverted to that the learned trial Judge had failed to weigh theirtestimonies with proper care and caution.He has also submitted that the learned trial Judge has notassigned any reason for disbelieving the first information Ex.P.1 which waslodged before P.W.21 by P.W.1 accompanied by P.W.8 immediately after theoccurrence.He has also submitted that the testimonies of P.Ws.1 to 3are cogent, convincing and corroborate with each other.However, theirtestimonies were discarded by the learned trial Judge for the reasons bestknown to him.He has maintained that the learned trial Judge has notproperly explained as to how the medical evidence adduced by P.W.14 andthe post mortem report under Ex.On the other hand, the learned counsel appearing for therespondents/accused has submitted that the learned trial Judge has properlyappreciated and weighed the testimonies of prosecution witnesses and hascome to the correct conclusion that the prosecution has miserably failedto bring home the guilt of the respondents/accused 1 to 4 and therefore, thejudgment of the trial court need not be disturbed as the interference ofthis Court does not require.On perusal of Ex.P.1 complaint, it appears thatit was received by P.W.21 Inspector of Police at 00.15 a.m on 4.10.2007and soon after the receipt of the complaint he had also registered the casein Cr.No.201 of 2007 under Section 302 of I.P.C.The first information report Ex.P.11 also reveals the samefact.However, it appears that these two documents, viz., Ex.P.1 andEx.P.11 were reached the learned Judicial Magistrate, Papanasam, at 4.40a.m.on 4.10.2007 as it is seen from the evidence of P.W.19, who had takenEx.P.1 and Ex.The occurrenceplace is situated just one kilometre away from the police station.He has also stated that at 4.00 a.m. he had been to thehouse of the learned Judicial Magistrate and handed over the Ex.P.1 andEx.43. P.W.8 says that he came to the place of occurrence along withothers and he was asked to write a complaint and therefore, he had writtenthe complaint.He would further state that at about 12.00 midnight he cameto the place of occurrence and thereafter, all the villagers went to thepolice station and they were also enquired by the police people.According to him, when he along with other villagers cameto the place of occurrence, already the police people were present there andthe witnesses P.Ws.1 to 3 were also present.But he is not able to say asto how the police people came to the place of occurrence before lodging thecomplaint and as to who had lodged the complaint prior to his lodging ofcomplaint.He would further state that after half-an-hour he went tothe police station along with others.In his cross examination, P.W.21 Inspector of Police hasstated that neither in the complaint Ex.P.1, dated 4.10.2007 nor in theirrespective statements, which were recorded by him under Section 161(3)Cr.P.C., P.Ws.1 to 3 have not told that for what purpose they went toPapanasam.Further, he has also stated that they never had statedthat they were threatened by the respondents.During the course of his investigation, he came to know thatthe deceased had been selling liquor near Papanasam railway gate and onthis score, there was previous enmity with other liquor sellers.In his cross examination, he has also stated that noreference was available in his diary to substantiate the fact that P.W.1came to the police station along with other persons.Apart from this, thearrest of the respondents/A1 to A4 was not satisfactorily proved.Besides this he has also admitted in his cross examinationthat when he had examined P.W.14 Dr. Rajmohan, who had conducted the postmortem examination M.O.1 Cement Concrete Stone was not shown to him.But hehas also not obtained any explanation from P.Ws.1 to 3 during the courseof his investigation as to why they had gone to Papanasam at 12.00midnight.It is significant to note here that P.W.21 being theInspector of Police had received the complaint under Ex.P.1 and alsoregistered the case.Since he being the officer, who had registered thecase, he should not have taken up the investigation.Even if he happens totake up the investigation, with the permission of his higher authorities,investigation should have been handed over to some other competent policeofficer.Hence, the investigation taken up by P.W.21 appears to have beentainted with embellishment.As we have discussed in the opening paragraphs, the presenceof P.Ws.1 to 3 at the time of occurrence has been shrouded with moonshine andsince their presence is doubted, it is incumbent on the part of theprosecution to dispel the doubt.However, the prosecution has notsatisfactorily proved the presence of P.Ws.1 to 3 at the place and at thetime of occurrence.Apart from this, as afore stated, the conduct of P.Ws.1 to3 seems to be unusual.We are in agreement with the conclusion of the trialCourt to the effect that P.Ws.1 to 3 would not have present in the place ofoccurrence and witnessed the occurrence.Further, since the other independent witnesses, viz., P.Ws.4to 7 and seizure mahazar witness P.W.9 and observation mahazar witness P.W.11have turned hostile, the testimonies of P.Ws.1 to 3 are left uncorroboratedand unsupported.The evidence of P.W.12, who has spoken about the previousenmity between the deceased and the respondents has also not been supportedby any other witnesses.Apart from this, since P.W.21 being the Inspectorof Police, attached to Papanasam Police Station, happened to register thecase, he is not supposed to take up the investigation.Keeping in view of all the infirmities and conflictions aswell as the contradictions between the testimonies of prosecution witnesses,we are of the considered view that the learned trial Judge has come to thecorrect conclusion, which resulted in the acquittal of the respondents 1 to4 in respect of the charges under Sections 302 and 302 r/w 34 of I.P.C.Therefore, the judgment of acquittal recorded by the learned trial Judgedoes not require interference of this Court.Further, wedo not find any reasons to interfere with the judgment of acquittal recordedby the learned trial Judge.In the result, the criminal appeal is dismissed confirmingthe judgment of acquittal recorded by the learned trial Judge.(S.R.,J) (T.M.,J).31.10.2014rnbIndex :Yes/NoInternet:Yes/NoToThe I Additional Sessions Judge, (PCR), Thanjavur.2.The Additional Public Prosecutor,Madurai Bench of Madras High Court,Madurai.S.RAJESWARAN,J.ANDT.MATHIVANAN,J.rnbPre-delivery JudgmentCriminal Appeal (MD) No.216 of 2010Delivered on31.10.2014

Sections cited: Section 302 in The Indian Penal Code, Section 342 in The Indian Penal Code