IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 26.11.2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.RAJESWARAN CRIMINAL APPEAL NOS.1013 AND 1126 OF 2007 Chackrapani .. Appellant in CA.No.1013 of 2007 1.Rajan 2.Maidhin 3.Sunder 4.Ganesh 5.Deen @ Denadayalan .. Appellants in CA.No.1126 of 2007 Vs. State rep. by Inspector of Police, Tambaram Police Station, (Crime No.658 of 2000) .. Respondent These criminal appeals have been preferred under Section 374(2) Cr.P.C. against the judgment of the learned Principal Sessions Judge, Kanchipuram District at Chengalpet made in S.C.No.466 of 2005, dated 26.10.2007. For Appellants : Mr.V.Gopinath, SC for Mr.L.Mahendran in CA.No.1013/2007 for Mr.G.Mohanakrishnan in C.A.No.1126 of 2007 For Respondent : Mr.P.Kumaresan, APP - - - - COMMON JUDGMENT (The judgment of the court was delivered by M.CHOCKALINGAM, J.) This judgment shall govern these two appeals, namely Criminal Appeal Nos.1013 of 2007 and 1126 of 2007. 2.Criminal Appeal No.1013 of 2007 is filed by A-1 and Criminal Appeal No.1126 of 2007 is filed by A-2 to A-6. These appeals challenge the judgment of the Principal Sessions Division, Kancheepuram District at Chengalpattu made in S.C.No.466 of 2005, whereby the appelants 6 in number stood charged under Sections 148 and 302 r/w S.149 IPC, tried and found guilty as per the charges and https://hcservices.ecourts.gov.in/hcservices/ awarded one year R.I. each under Section 148 IPC and life imprisonment each and to pay a fine of Rs.500/-, in default to undergo one month S.I. under Section 302 r/w S.149 IPC and both the sentences were ordered to run concurrently. 3.The short facts necessary for the disposal of these appeals can be stated thus: a)P.W.1 is the wife and P.W.2 is the sister of the deceased Krishnan. He sold his landed properties to the third parties. Even after the sale, the accused made trespass into the said property and laid stones. The husband of P.W.1 removed the said stones and thus, all the accused along with one Mari, who was originally shown as the second accused in the F.I.R. and pending case died, were on inimical terms with the deceased Krishnan. b)On the date of occurrence, namely on 23.7.2000 at about 9.00 p.m., the deceased along with the family members, including his wife P.W.1 and sister P.W.2 and the other children, was witnessing T.V. and thereafter, they went for dinner and he took dinner early, while the others were taking. He went nearby betel shop to purchase betel. Within a short span of time, P.Ws.1 and 2 heard the distressing cry of Krishnan and they came outside. At that time, A-1 to A-6 and the other accused, namely A-1 to A-6 armed with vethukathi and the last accused with wooden log, were attacking him indiscriminately. On hearing the noise raised, all the accused fled away from the place of occurrence. c)P.W.1 immediately took the deceased in an auto to Tambaram Police station, where she was advised to take the severely injured Krishnan to Chromepet Government Hospital. Accordingly, P.W.1 took him to Chrompet Government Hospital, where she was advised to take him to the Government General Hospital, Chennai, since his condition was so serious. Accordingly, she took him to the Government General Hospital, Chennai, where the severely injured Krishnan was admitted by P.W.12, the Doctor at 10.35 p.m. and Ex.P.32, accident register in this regard was also marked. An intimation was given to Tambaram Police station. d)On receiving the intimation, P.W.11, the Inspector of Police, proceeded to the Government General Hospital, Chennai and recorded the statement of the injured Krishnan, which was marked as Ex.P.27, on the strength of which, a case came to be registered in Crime No.658 of 2000 under Sections 147, 148, 324 and 307 IPC. Ex.P.29, the FIR was despatched to the Court. Then, P.W.11 proceeded to the spot and made an inspection at 00.45 hours in the presence of the witnesses. He prepared Ex.P.30, the observation mahazar and Ex.P.31, the rough sketch. e)Then, P.W.13, the Inspector of Police, took up the investigation. Pending investigation, the severely injured Krishnan, who was under treatment, died on 27.7.2000. On receipt of the said intimation, the case was altered to Section 302 IPC and Ex.P.33, the alteration report was sent to the court. P.W.13 examined all the https://hcservices.ecourts.gov.in/hcservices/ witnesses and recorded their statements. He conducted inquest on the dead body of the deceased in the presence of the witnesses and panchayatdars and prepared Ex.P.34, the inquest report. Then, the dead body was sent for the purpose of autopsy. f)P.W.9, the Doctor attached to the Chennai Medical College, on receipt of the requisition, has conducted post-mortem on the dead body of the deceased and has issued Ex.P.17, the post-mortem certificate, wherein he has opined that the deceased would appear to have died of shock and haemorrhage due to the injuries sustained. g)Pending investigation, P.W.13 arrested A-1, A-3, A-5 and the deceased accused, namely Mari on 29.7.2000. A-1 came forward to give confessional statement voluntarily, which was recorded in the presence of the witnesses, the admissible part of the same was marked as Ex.P.35. Pursuant to the same, he produced M.O.1, knife, which was recovered under a cover of mahazar. The confessional statement of the deceased accused Mari was recorded in the presence of the witnesses, the admissible part of which was marked as Ex.P.37. Following the same, M.O.2 knife was recovered under a cover of mahazar. A-3 also gave confessional statement, which was recorded in the presence of the witnesses, the admissible part of the same was marked as Ex.P.39. Pursuant to the same, M.O.3, knife was recovered. A-5 also gave confessional statement, the admissible part of which was marked as Ex.P.41. Following the same, M.O.4, knife was recovered. The accused were sent for judicial remand. On 19.8.2000, A-2, A-6 and A-4 were arrested. A-2 came forward to give confessional statement, which was recorded in the presence of the witnesses, the admissible part of the same was marked as Ex.P.43. Pursuant to the same, he produced M.O.5, knife which was recovered under a cover of mahazar. The confessional statement of A-6 was recorded, the admissible part of the same was marked as Ex.P.45, pursuant to which he produced M.O.7 wooden log, which was recovered under a cover of mahazar. A-4 also gave confessional statement and admissible part of which was marked as Ex.P.47, pursuant to the same, he produced M.O.6 knife, wich was recovered under a cover of mahazar. These accused were sent for judicial remand. All the material objects recovered were subjected to chemical analysis by the Forensic Science Department, which resulted in Ex.P.24, the Biological Report and Ex.P.25, the Serological Report. On completion of the investigation, the Investigating Officer has filed the final report. 4.The case was committed to the court of sessions and necessary charges were framed. In order to substantiate the charges, the prosecution examined 13 witnesses and also relied on 48 exhibits and 11 M.Os. On completion of the evidence on the side of the prosecution, the accused were questioned under Section 313 Cr.P.C. as to the incriminating circumstances found in the evidence of prosecution witnesses, which they flatly denied as false. No defence witness was examined. The trial court, after hearing the arguments advanced on either side and looking into the materials available, took the view that the prosecution has proved the case beyond reasonable doubt and found A-1 to A-6 guilty as stated above and awarded punishments as referred to above. Hence these appeals at the https://hcservices.ecourts.gov.in/hcservices/ instance of the appellants. 5.Advancing arguments on behalf of the appellants, the learned Senior Counsel has made the following submissions: a)Ex.P.27, which according to the prosecution has come into existence at 10.45 p.m. on 23.7.2000, could not have come into existence as alleged by the prosecution; that according to P.W.1, the occurrence has taken place at about 9.00 p.m. and immediately, she took him to Tambaram Police station, but no statement was recorded and she was advised to go to the hospital and hence she went to Chrompet Government Hospital, but she was advised to take him to the Government General Hospital, Chennai and accordingly, she took him to the Government General Hospital and the severely injured was treated by P.W.12, the Doctor; that P.W.12 has categorically stated that he gave first aid to Krishnan at about 10.35 p.m. and noted the injuries in Ex.P.32, the accident register; that it is an admitted fact that the distance between the Government General Hospital and the Tambaram Police station is 25 Kms.; that according to P.W.12, he gave intimation immediately; that if P.W.11, the Inspector of Police has reached the Government Hospital only after receiving the intimation given by P.W.12, he could not have arrived at the Government General Hospital and recorded the statement at 10.45 p.m., i.e. within 10 minutes interval and that Ex.P.27 could not have come into existence as put forth by the prosecution. b)The learned Senior Counsel would further submit that Ex.P.27, the statement could not be believed for the simple reason that according to P.W.12, he has seen number of cut injuries and cut injuries also found on the leg; that the injuries were so much that he would have been unconscious stage and hence he could not have given any statement at all; that it is highly unnatural that he gave statement as found in Ex.P.27 and hence Ex.P.27 could not be given any credence at all; that the scene of occurrence is also highly doubtful; that according to P.W.1, she was actually inside the house; that immediately on hearing the distressing cry, she came out to see the occurrence and thus, from her evidence, it could be seen that the place of occurrence is outside the house of the deceased; that it is also seen from the evidence of P.W.12, the Doctor, who gave initial treatment and also from the post-mortem certificate that there were 29 injuries external injuries found; that if to be so, blood would have been coming out, but when the Investigating Officer has prepared observation mahazar and the rough sketch, nowhere the bloodstains found on the ground was noted; that the bloodstained earth was not recovered and thus, it would be quite clear that it is doubtful that the place of occurrence was in front of the house of the deceased as put forth by the prosecution. c)Added further the learned Senior counsel that P.W.2 could not have seen the occurrence at all; that her house is situated two streets away from the house of the deceased; that according to her, she came over there on the date of occurrence; that the reasons adduced by her is not convincing; that had P.Ws.1 and 2 been present at the time of occurrence, certainly, the deceased, who has come for https://hcservices.ecourts.gov.in/hcservices/ treatment, would have referred about their presence, but he has not done so; that it would be quite clear that neither P.W.1 nor P.W.2 could have seen the occurrence at all; that the learned Senior counsel assailed the case of the prosecution by stating that the occurrence has taken place at 9.00 p.m. on 23.7.2000, but the F.I.R. reached the court at about 12.40 p.m. on 25.7.2000 and thus, there was an inordinate delay, which was never explained by the prosecution and that all would go to show that the prosecution has miserably failed to prove its case. d)The learned Senior Counsel would further submit that originally, when the deceased has given statement under Ex.P.27, he has referred the names of A-1, A-3, A-4 and A-5 and the elder brother of Murugan and also a few others; that it was alleged by the prosecution that the elder brother of Murugan was A-2, but no evidence was adduced in this regard and hence so far as A-2 was concerned, identity was not fixed by the prosecution; that even in the F.I.R., the names of A-2 and A-6 were not shown; that P.W.1 would claim in her evidence that she knew all the seven accused; that if to be so, even at the earliest statement given by her, she has referred only A-1, A-3, A-4 and A-5 and a few others and hence it would be quite clear that there was discrepancy and she has also made an attempt to develop her evidence before the court from the statement what was originally given; that all would be pointing to the falsity of the prosecution case. e)Added further the learned Senior Counsel that according to P.W.2, within half an hour from the time of occurrence, the police came there and recorded her statement; that if the prosecution case is viewed from this angle also, so much falsity was given entry and that the lower court has not considered any one of these aspects, but has found the accused guilty as per the charges and awarded punishments and hence in view of all the above circumstances, it would be quite clear that the prosecution has not brought home the guilt of the accused and therefore, the appellants are entitled for acquittal in the hands of this court. 6.The court heard the learned Additional Public Prosecutor on the above contentions and has paid its anxious consideration on the submissions made. 7.It is not in controversy that one Krishnan, the husband of P.W.1, following an incident that took place at 9.00 p.m. on 23.7.2000, was taken to the Government General Hospital, Chennai and he was treated by P.W.12, the Doctor and when he was under treatment, he died on 27.7.2000. Though the case was originally registered under Section 307 IPC for attempt to murder and other provisions, on his death, it was altered to Section 302 IPC for murder. Following the inquest made by the Investigating Officer, the dead body was subjected to post-mortem by P.W.9, the Doctor, who has given his categorical opinion that the deceased died out of shock and haemorrhage due to 29 external injuries sustained by him. Thus, the prosecution has proved that the deceased died out of homicidal violence. This fact was never questioned by the appellants before the https://hcservices.ecourts.gov.in/hcservices/ trial court or before this court and hence without any impediment, it has got to be factually recorded so. 8.In order to substantiate that the accused persons armed with deadly weapons came to the place of occurrence with the common object of murdering Krishnan and in furtherance of the same, they committed the said act, the prosecution has rested its case on the evidence of P.Ws.1 and 2. It is true, P.W.1 is the wife and P.W.2 is the sister of the deceased. It is a well settled proposition of law that merely because the eyewitnesses happened to be the close relatives of the deceased, their evidence need not be discarded, but it must be subjected to careful scrutiny test. Even after applying the careful scrutiny test, as done by the trial court, the court is thoroughly satisfied that their evidence has inspired the confidence of the court P.W.1 is the wife of the deceased. According to P.W.1, she along with Krishnan and other family members was taking food and Krishnan took food early and he went outside to purchase betel leaves and within a short span of time, she heard the distressing cry and came outside the house to see that the accused persons armed with deadly weapons were attacking the deceased. Merely because the deceased has not mentioned the presence of P.Ws.1 and 2 at the time when he gave statement to the police, it cannot be a reason to reject their testimony. The court must take into consideration that when the deceased was actually attacked by number of persons with deadly weapons and it has taken place outside the house, he might not have noticed the presence of P.Ws.1 and 2. Further, the court must also take into consideration the anxiety with which he has given statement to P.W.11, who has recorded the same. Hence on that ground, the presence of P.Ws.1 and 2 witnessing the occurrence cannot be rejected. 9.So far as P.W.2 was concerned, it is true, she was residing in a house situated two streets away from the house of the deceased. She has categorically deposed that one and half month before she gave birth to a child and hence she was staying in her brother's house and on the date of occurrence, she was also taking food along with the family members. Therefore, this explanation given by her would clearly indicate that she was actually available at the time and place of occurrence. Thus, there is no reason to disbelieve her evidence. P.Ws.1 and 2 as eyewitnesses have spoken to the fact. At this juncture, it is pertinent to point out that the case was registered by P.W.11, the Inspector of Police, Tambaram Police Station on the strength of Ex.P.27, statement recorded by him when the deceased was at hospital at about 10.45 p.m. Much comment was made by the learned Senior Counsel that P.W.12 has medically examined the severely injured Krishnan at 10.35 p.m. as could be seen in Ex.P.32, the accident register copy. P.W.11 would claim that he recorded the statement of the deceased Krishnan at 10.45 p.m., which was marked as Ex.P.27. If really P.W.11 on intimation from the hospital, which is situated 25 Kms. away from the Tambaram Police station, went to the hospital and recorded the statement of the deceased, he could not have reached the hospital and recorded the statement of severely injured Krishnan at 10.45 p.m. This contention cannot be accepted for more reasons than one. According to P.W.12, he https://hcservices.ecourts.gov.in/hcservices/ treated the deceased Krishnan at 10.35 p.m. According to him, he was conscious and was speaking to him and it was he who stated that he was attacked in front of his house by known persons. At this juncture, it is pertinent to point out that the place of occurrence at the earliest was mentioned by Krishnan. P.W.12, the Doctor has also recorded the same in Ex.P.32, the accident register copy and the place of occurrence has been mentioned that it was in front of his house. Hence so far as the scene of occurrence was concerned, no doubt would arise. 10.It is true, P.W.11 has not recovered bloodstained earth from the place of occurrence, namely in front of the house of the deceased. It is actually an irregularity committed by him. But, the available evidence would clearly indicate that it was the place of occurrence. Merely because the non recovery of bloodstained earth from the place of occurrence, the court cannot take contra view that the place of occurrence was not the one as put forth by the prosecution. 11.It remains to be stated that immediately after the occurrence, P.W.1 took the severely injured to Tambaram Police station, where she was advised to take him directly to Chrompet Government Hospital, where not even treatment was given, but she was again advised to take him to the Government General Hospital, Chennai immediately in view of the serious condition of the injured Krishnan. Thus, it has got to be pointed out at this juncture that P.W.11, the Inspector of Police, who came to know about the same and advised P.W.1 to go to Chrompet Government Hospital, has directly proceeded to the Government General Hospital and recorded the statement of the deceased. Hence P.W.11 has proceeded from the police station to the Government General Hospital not on the intimation of the Doctor, but even prior to that, since P.W.1 has taken the injured directly to the police station after the occurrence. Therefore, the contention in this regard cannot be accepted at all. P.W.12, the Doctor, who was on duty at the Government General Hospital, has examined the severely injured Krishnan and found him to be conscious and according to his evidence, it was he who noted the contents in Ex.P.32, the accident register. Hence Ex.P.32 is the earliest document where the deceased has mentioned that known persons have attacked him with knives in front of his house and in the considered opinion of the court, it seems to be a vital document in the instant case. 12.It is true, the F.I.R. has reached the court after a delay of nearly 36 hours, namely at about 12.40 p.m. on 25.7.2000. It was the case originally registered under Section 307 IPC and not under Section 302 IPC. It cannot be disputed that there was delay in sending the F.I.R. to the court. The case was subsequently altered to Section 302 IPC. The court is of the considered opinion that the delay that was noticed by the court by itself will not in any way affect the prosecution case, since the court is able to see necessary evidence to find out the assailants guilty. 13.Originally, the statement was given by the deceased himself, which was marked as Ex.P.27. In that statement, he has stated that he https://hcservices.ecourts.gov.in/hcservices/ was attacked by A-1, A-3, A-4 and A-5 and elder brother of Murugan and a few others. The prosecution urged before the trial court that the elder brother of Murugan was A-2 and the lower court has also accepted the same. At this juncture, it has got to be mentioned that the identity of A-2 was not at all fixed and there was no evidence at all that the elder brother of Murugan was A-2 and hence the finding of the lower court in respect of A-2 cannot be sustained. Even from the version given by the deceased under Ex.P.27, it is stated that he was cut by A-1, A-3, A-4, A-5 and a few persons, but he has not mentioned their names. Though P.W.1 has claimed at the time of evidence that all the six persons were available at the place of occurrence, the earliest statement was only for four persons, namely A-1, A-3, A-4 and A-5 and hence all the three persons have been subsequently added. Apart from that, even the deceased himself has mentioned in Ex.P.27 the names of four persons, namely A-1, A-3, A-4 and A-5 and a few others, but who are those few persons and the prosecution has fixed them without any evidence. 14.The Investigator has recovered the material objects on arrest and on confession and they were all subjected to chemical analysis. From the Serologist's report, it could be found that the blood group was found to be tallying from the one recovered from A-3 and A-5. The prosecution came with the case that the accused persons have acted with common object. Though the prosecution was able to bring evidence in respect of A-1, A-3, A-4 and A-5 and a few others were also available, but they cannot be fixed. However, it could be found that A-1, A-3, A-4 and A-5 along with others were present and had a common object of murdering the deceased and that in furtherance of the common object, they have acted so. Hence from the available evidence, the prosecution was able to show evidence for A-1, A-3, A-4 and A-5 and for others, evidence was not available. It is to be noted that the names of A-2 and A-6 were not found in the F.I.R. and pending same one died. As could be seen, A-1, A-3, A-4 and A-5 have got to be found guilty under Section 148 IPC and also Section 302 r/w S.149 IPC. Hence the judgment of the trial court in respect of A-1, A-3, A- 4 and A-5 have got to be sustained. So far as A-2 and A-6 are concerned, they are entitled for acquittal. 15.Accordingly, the conviction and sentence imposed on A-1, A-3, A-4 and A-5 by the trial court are confirmed. The conviction and sentence imposed on A-2 and A-6 are set aside and they are acquitted of the charges levelled against them. A-2 and A-6 are directed to be released forthwith unless their presence is required in connection with any other case. The fine amount if any paid by A-2 and A-6 shall be refunded to them. 16.Accordingly, Criminal Appeal No.1013 of 2007 is dismissed and Criminal Appeal