IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 3-12-2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH CRL.A.No.502 of 2009 1.Sudalai Mani 2.Lakshmanan 3.Parasuraman .. Appellants/Accused 1,2 and 3 vs State rep. By The Inspector of Police R-4, Pondy Bazaar Police Station Chennai 600 017. (Crime No.389/2007) .. Respondent/Complainnant Criminal appeal preferred under Sec.374(2) of the Code of Criminal Procedure against the judgment of the VI Additional Sessions Judge, City of Madras, Chennai, made in S.C.No.103 of 2008 dated 18.8.2009. For Appellants : Mr.C.Duraipandian For Respondent : Mr.Babu Muthu Meeran Additional Public Prosecutor JUDGMENT (Judgment of the Court was delivered by M.CHOCKALINGAM, J.) Challenge is made to a judgment of the Additional Sessions Division, Chennai, in S.C.No.103 of 2008 whereby the appellants/accused stood charged i.e., A-1 under Sec.302 IPC and A-2 and A-3 under Sec.302 read with 34 IPC, and found guilty as per the charges and awarded life imprisonment. 2.Short facts necessary for the disposal of this appeal can be stated as follows: (a) P.W.1 was having his fruit vending shop in front of RMKV shop which is situated in Usman Road. During the relevant time, P.W.2 and the deceased Karnan were employed in his shop. The deceased belonged to Adambakkam, and P.W.7 is his wife. Just one month prior to the date of occurrence, A-1 was keeping his ice cream box nearby the shop of P.W.1 for sale, and thus the volume of business of P.W.1 got reduced; thereby, there was a quarrel. Then https://hcservices.ecourts.gov.in/hcservices/ P.W.1 told A-1 that he could better have the business somewhere to which course A-1 was not amenable, and they had a quarrel. Just 10 or 15 days earlier also, A-1 was carrying on his business, and there arose a quarrel between them. At that time, the deceased beat A-1, and immediately he left the place. (b) On the date of occurrence that was on 22.6.2007, when P.W.1 was in his shop along with P.W.2, A-1 accompanied by his brother A-2, and also A-3 came over to the place, and it was A-2 who caught hold of the deceased while A-3 caught hold of his legs. A-1 took a knife from his waist and stabbed him on different parts of the body telling "whether it is you only to conduct the shop and not others". This was witnessed by P.Ws.1 to 3. Immediately, from the place of occurrence, all the accused fled away. (c) On hearing the information, P.W.21, the Inspector of Police, attached to the respondent police station, rushed over to the place, and immediately he arranged for the deceased to be taken to the hospital with severe injuries. P.W.19, the Sub Inspector of Police, and P.W.18, the Head Constable, took him to the Government General Hospital, Royapettah, where P.W.16, the Doctor, was on duty. The Doctor on medical examination, declared him dead, and the accident register copy is marked as Ex.P16. (d) At the time when the Inspector of Police was in the scene of occurrence, P.W.1 came there and gave an information regarding the occurrence. The same was reduced into writing which is marked as Ex.P1. P.W.21, who returned to the station at about 5.10 P.M., on the strength of Ex.P1, registered a case in Crime No.389 of 2007 under Sections 341, 326 and 307 of IPC. The printed FIR, Ex.P19 was despatched to the Court. There was a phone call from the hospital that the deceased died. At that time, P.W.21 informed the crime number to the Head Constable who was deputed in the hospital. The same was also incorporated in the accident register copy. Then P.W.21 converted the case to Sec.302 of IPC, and the altered report, Ex.P21, was also despatched to the Court. (e) Taking up investigation, P.W.21 went to the spot again, made an inspection and prepared an observation mahazar, Ex.P2, and also a rough sketch, Ex.P20. He recovered the material objects from the place of occurrence including the sample earth and bloodstained earth. Then he proceeded to the hospital, conducted inquest on the dead body in the presence of witnesses and panchayatdars and prepared an inquest report, Ex.P22. Thereafter a requisition was given to the hospital authorities for conduct of postmortem on the dead body. (f) P.W.17, the Assistant Professor, Department of Forensic Medicine, Government Royapettah Hospital, on receipt of the said requisition, conducted autopsy on the dead body of Karnan and has issued a postmortem certificate, Ex.P17, with his opinion that the deceased would appear to have died of shock and haemorrhage due to the stab injuries to heart and left lung. (g) Pending investigation, on 25.6.2007, A-1 was arrested, and he came forward to give a confessional statement which was recorded in the presence of witnesses. The admissible part is marked as https://hcservices.ecourts.gov.in/hcservices/ Ex.P24. Pursuant to the same, M.O.1, knife, produced by him, was recovered under a cover of Ex.P5, mahazar. He was sent for judicial remand. All the other accused were also arrested on 26.6.2007. They gave confessional statements which were recorded by the Investigator. They were all sent for judicial remand. (h) For the purpose of conduct of test identification parade, a requisition was made to the Chief Metropolitan Magistrate, Madras. Accordingly, on 9.7.2007, the test identification parade was conducted. P.Ws.1 and 3 participated in the identification parade, and they also identified A-1 to A-3. The identification parade proceedings are marked as Ex.P11. On completion of investigation, the Investigator filed the final report. 3.The case was committed to Court of Session, and necessary charge was framed. In order to substantiate the charge, the prosecution examined 21 witnesses and also relied on 27 exhibits and 7 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 and hence found them guilty as per the charge and awarded the punishment as referred to above. Hence this appeal at the instance of the appellants. 4.Advancing arguments on behalf of the appellants, the learned Counsel Mr.C.Duraipandian would submit that the prosecution has miserably failed to prove its case; that in the instant case, the prosecution has examined P.Ws.1 to 3 as eyewitnesses to the occurrence; that P.Ws.1 to 3 could not have seen the occurrence at all; that P.W.1 is the owner of the shop under whom the deceased Karnan was employed during the relevant time; that P.W.2 was also another employee working in the fruit vending shop; that the motive that was attributed to A-1 was that he was having his cycle containing ice cream for sale nearby the shop of P.W.1 in the past, and there was a quarrel between A-1 and P.W.1; that according to the prosecution, a few days prior to the occurrence, it was the deceased who actually beat A-1 pursuant to which the occurrence has taken place; that as far as the evidence of the eyewitnesses are concerned, it should have been rejected by the trial Court; that the occurrence, according to the prosecution, has taken place at about 3.15 P.M. during which A-1 had a knife, and A-2 and A-3 were actually facilitating the crime by catching hold of the deceased; that insofar as the occurrence, it has taken place in a public place, and it is a very busy locality in the City of Madras; but, no independent witness was examined; that instead, the prosecution relied on the evidence of P.Ws.1 to 3; that as far as the evidence of these witnesses are concerned, there was lot of discrepancy; that P.W.1 would claim that he was actually at the place when the occurrence has taken place; but, he left the place and returned after about an hour; that it is highly unnatural; that according to the evidence of P.W.1, he was standing nearby the police station; that if to be so, he should have got into the police station and given a complaint, but not done so; and that the explanation tendered by P.W.1 that he was in a grip of https://hcservices.ecourts.gov.in/hcservices/ psychic fear, and hence he did not stand in the place, but ran away was highly artificial, unnatural and unacceptable. 5.Added further the learned Counsel that it is pertinent to point out that P.W.18, the Head Constable, would claim that immediately, he took the severely injured Karnan from the place of occurrence to Royapettah Government Hospital; but, according to the accident register copy, he was actually brought by the Sub Inspector of Police; that even at the time, when he was actually taken to Royapettah Government Hospital, not even a complaint was lodged or a case was registered; but, the accident register would contain the crime number of the case; that further the case came to be registered, according to P.W.21, at about 5.10 P.M. at the police station at T.Nagar, and he was also admitted in Royapettah Government Hospital, and the accident register copy has come into existence at about 5.10 P.M.; that under the circumstances, both the documents have come into existence at the same time; and that this would clearly indicate that the occurrence could have taken place much earlier, and P.W.1 could not have seen the occurrence at all. 6.Added further the learned Counsel that in the instant case, though the Investigator claimed that the case was registered at about 5.10 P.M. at the respondent police station, the FIR has reached the hands of the Metropolitan Magistrate in the very late hours, and this would also be indicative of the fact that the FIR could not have come into existence as put forth by the police personnel; that all would cast a reasonable doubt on the prosecution case; and that it is true that P.Ws.1 to 3 have participated in the identification parade and have identified the accused, but that by itself would not suffice for the simple reason that there was sufficient opportunity available to the prosecution witnesses to see the accused even before the identification parade was conducted. 7.The learned Counsel would further submit that as far as A-3 was concerned, the ocular testimony did not get the corroboration from the medical evidence; that the Doctor has categorically spoken to the fact that the injury No.3 namely a stab wound measuring 9 x 3 cms x cavity deep over upper part of back of left shoulder, 6 cms below the hairline 2 cms above the left shoulder blade and 4 cms from the midline 12 cms from tip of left shoulder, was fatal, and on dissection of the said injury, it was found that it has cut the 1st left rib in its middle and has been entering into the thoracic cavity and pleural cavity and it also penetrates into the Apex of left lung 5 x 1 cm x Alveoli deep and directed downwards and backwards and has been entering into the pericardial cavity and has cut the root of Aorta 1.5 x .5 cm x cavity deep; that P.W.1 has categorically deposed that A-2 actually caught hold of his body and also hands; that if to be so, A-1 could not have stabbed on that part of the body since the seat of the injury was found on the back of left shoulder below the neck; that if to be so such an injury could not have been caused at all; that under the circumstances, it would be quite clear that A-2 could not have been in the place of occurrence and the overt act attributed to him cannot but be false; that as far as A-3 was concerned, even P.W.1 does not whisper anything in his evidence and thus insofar as A-2 and A-3, the prosecution lacks in evidence, and hence the benefit should go to A-2 and A-3; that as far as A-1 is https://hcservices.ecourts.gov.in/hcservices/ concerned, for the reasons stated above, he should have been acquitted by the trial Court, but has taken an erroneous view, and hence, they are entitled for acquittal. 8.The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made. 9.It is not in controversy that one Karnan employed in the shop of P.W.1 was done to death in an incident that had taken place at about 3.15 P.M. on 22.6.2007, and he was declared dead by P.W.16, the Doctor, attached to Royapettah Government Hospital. Following the registration of the case originally under Sec.307 of IPC and subsequently altered to Sec.302 IPC, P.W.21, the Investigator, conducted inquest on the dead body, and after preparation of the inquest report, the dead body was subjected to postmortem by P.W.17, the Medical Person, on a requisition made by the Investigator. The Doctor has categorically deposed that he conducted autopsy on the dead body of Karnan, and the injury No.3 found on the dead body was fatal. He gave his opinion that the deceased would appear to have died of shock and haemorrhage due to the stab injuries to heart and left lung. That apart, the postmortem certificate issued by him is also marked as Ex.P17. The cause of death as put forth by the prosecution was never disputed by the appellants before the trial Court, and hence no impediment was felt by the trial Court in recording so and rightly too. 10.In order to substantiate the charge levelled against the appellants/accused that A-1 caused the death intentionally, and the common intention was shared by A-2 and A-3 by facilitating the crime, the prosecution has examined three witnesses as eyewitnesses. It is true that P.W.1 is the owner of the shop in which the deceased was employed, and P.W.2 during the relevant time was also employed in the shop. As could be seen from the available materials, this Court is able to see that the prosecution had sufficient evidence in order to indicate the culpability of A-1. The occurrence has taken place at about 3.15 P.M. on 22.6.2007. P.W.1 would claim that he was very well present in the shop, and at that time, the accused came over there, and it was A-1 who took M.O.1, knife, from the waist and stabbed the deceased uttering those words. P.W.1 has also deposed that on seeing this crime, P.W.3 who was selling groundnuts nearby, was running; that he was also under the grip of psychic fear; that he also ran away along with P.W.3; that he was staying at the nearby place for about 45 minutes, and thereafter he came back. Now the contention put forth by the learned Counsel for the appellants is that at the time when such an occurrence has taken place and that too when an employee of P.W.1 was being stabbed by a man, one would naturally expect P.W.1 being the owner of the shop and the master of the deceased, to immediately intervene or go to the rescue. But, this Court is unable to appreciate this contention for the simple reason that originally the motive was between P.W.1 and A-1 since A-1 was carrying on his ice cream shop nearby the shop of P.W.1, and thus once P.W.1 has seen such an occurrence in which his employee was being stabbed, it would have passed in his mind that the next target would be himself. Under the circumstances, it is quite natural for https://hcservices.ecourts.gov.in/hcservices/ him to run away from the place of occurrence in order to save himself; but, within a short time he came back. 11.At this juncture, the evidence of P.Ws.19 and 21 in this regard are so clear. When P.W.19, the Sub Inspector of Police, came to know about the incident, he rushed to the spot. At the same time, P.W.21, the Inspector of Police, who was in the police station, had received an information, and he also rushed to the spot. It was P.W.21 who arranged for a vehicle in which the severely injured Karnan was taken to the hospital. P.W.19 took him to Royapettah Government Hospital where P.W.16 was the Doctor who examined and declared him dead. In the meanwhile, when P.W.21 was at the scene of occurrence, P.W.1 came over there, and from him, he recorded the statement on the strength of which originally a case was registered under Sec.307 IPC. When he received the information from the hospital that Karnan was declared dead, the case was altered to Sec.302 of IPC. At the same time, he has also informed to P.W.18, the Head Constable, who was in the hospital, the crime number also, and hence the crime number came to be inserted in the accident register. At this juncture, this Court is unable to see anything out of the way or anything deviated from the course of the investigation. At this juncture, it is pertinent to point out that as far as P.W.1 was concerned, his evidence that it was A-1 who stabbed Karnan and the narration of the incident stood fully corroborated by the other witness namely P.W.3 and also the medical opinion canvassed. Yet another circumstance which is against A-1 was the recovery of M.O.1, knife, pursuant to the confessional statement recorded by the Investigator. All would indicate that the prosecution has come with the clear evidence indicating the act committed by A-1. Under the circumstances, the contentions put forth by the learned Counsel for the appellants with regard to A-1 do not carry any merit whatsoever. 12.It is not the case of the prosecution that the deceased beat A-1 on that day, but 10 or 15 days prior to and hence there could not have been any provocation on that. Even assuming that if there was any provocation, it would have become cooled down. On the day, there is nothing to infer that there was any quarrel. But, it is clear that A-1 came to the spot with the knife and stabbed him uttering the words. All would clearly indicate that with an intention, he came to the spot and stabbed him to death. Hence the act of A-1, no doubt, would attract the penal provision of murder. The trial Court was perfectly correct in finding A-1 guilty under Sec.302 IPC and awarding life imprisonment. There is nothing to interfere in the judgment of the trial Court either factually or legally, and accordingly, it is sustained as regards A-1. 13.As far as A-2 and A-3 are concerned, this Court is unable to agree with the case of the prosecution. As regards A-2, the evidence put forth by the witnesses are actually discrepant. P.W.1 has categorically stated that A-2 caught hold of the body of the deceased along with hands. If to be so, such an injury what is found on the backside of the deceased and also found to be fatal and has also pierced into the heart and lungs, could not have been made at all. Under the circumstances, the evidence what is put forth insofar as A-2, cannot be accepted since it is discrepant. As far as A-3 was concerned, P.W.1 does not whisper any overt act committed by him. In https://hcservices.ecourts.gov.in/hcservices/ such circumstances, it would be highly unsafe to sustain a conviction as far as A-2 and A-3 are concerned, or to attribute that they have shared the common intention along with A-1. Hence A-2 and A-3 are entitled for acquittal. 14.Accordingly, the conviction and sentence imposed by the trial Court on A-2 and A-3 are set aside, and they are acquitted of the charge levelled against them. A-2 and A-3 are directed to be set at liberty forthwith unless their presence is required in connection with any other case. 15.In the result, this criminal appeal is partly allowed. nsv Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar To: 1.The VI Additional Sessions Judge City of Madras, Chennai. 2.-do-Throughthe Principal Sessions Judge, Cennai. 3.The Inspector of Police R-4, Pondy Bazaar Police Station Chennai 600 017.(Crime No.389/2007) 4.The XVII Metropolitan, Magistrate, Chennai. 5. The Chief Metropolitan Magistrate, Egmore. 6. The Superintendent, Central Prison, Palayamkottai, Tirunelveli. 7. The Districdt Collector, Chennai. 8. The District Collector, Tirunelveli. 9. The Director Central of Police Mypapore, Chennai-4 10.The Public Prosecutor, High Court, Madras. + 1 cc to Mr. C. Durai Pendian, Advocate SR.65665 CRL.A.No.502 of 2009 PUR (CO) EU 18.12.2009. https://hcservices.ecourts.gov.in/hcservices/