IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 16.12.2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.RAJESWARAN CRIMINAL APPEAL NO.191 OF 2008 Ponnudurai @ Palanisamy .. Appellant/Sole Accused Vs. The State of Tamilnadu represented by The Inspector of Police, Dharapuram Police Station, Erode District .. Respondent/Complainant This criminal appeal has been preferred under Section 374(2) Cr.P.C. against the judgment of the learned Additional District and Sessions Judge, Fast Track Court No.3, Dharapuram made in S.C.No.78 of 2007, dated 26.02.2008. For Appellant : Mr.K.Doraisami, Senior Counsel for Mr.T.Gowthaman For Respondent : Mr.P.Kumaresan, APP - - - - JUDGMENT (The judgment of the court was delivered by M.CHOCKALINGAM, J.) Challenge is made to the judgment of the Additional District and Sessions Division, Fast Track Court No.3, Dharapuram made in S.C.No.78 of 2007, whereby the sole accused/appellant stood charged under Sections 506(2), 341 and 302 IPC, tried, found guilty as per the charges and awarded one month SI under Section 341 IPC, life imprisonment and to pay a fine of Rs.15,000/-, in default to undergo 3 years R.I. under Section 302 IPC and 2 years RI for each count and to pay a fine of Rs.2,500/- each, in default to undergo 6 months R.I. each under Section 506(2) IPC (4 counts) and the sentences were ordered to run concurrently. https://hcservices.ecourts.gov.in/hcservices/ 2.The short facts necessary for the disposal of this appeal can be stated as follows: a)P.W.1 is the younger brother of the deceased Balasubramaniam. P.W.2 is the son-in-law of the deceased. P.W.3 is the brother-in-law of P.W.1. P.W.4 is also the relative of the deceased. All of them are the residents of Nattukalpalayam within the jurisdiction of the respondent police station. The accused is the cousin brother of P.W.1. The landed property belonged to the family was divided among their families 13 years prior to the occurrence. After the death of his father, the accused was residing along with his mother in Chettythottam, which is situated near the house of P.W.1 and the deceased. P.Ws.1 and 2 were watering their land through the canal on turn basis. There was often quarrel. Apart from that, 1-1/2 years prior to the occurrence, the accused wanted to marry the sister of P.W.2, but it was denied. Just 3 months prior to the occurrence, P.W.2 married the daughter of the deceased. The accused was aggrieved over the same. Being enraged over the situation, he began threatening the workers employed in the land of P.W.1 and the deceased. Often, he was threatening P.W.1 and others. b)On the date of occurrence, that was on 10.03.2007 at about 4.00 p.m., when P.W.10 was in the house, the accused came there and was standing outside with Koduval and shouted that he is going to finish them off. P.W.10 immediately informed P.W.1, who was in the land. At that time, P.W.10 informed about the threat through the land line to his cell phone. P.W.3 who came to meet P.W.1 was also there and he was also informed about the same. After completing the agricultural works, P.W.1 accompanied by P.W.3 was proceeding in the road. At that time, P.Ws.2 and 4 were also coming in the motor cycle. P.W.5, who had tea in the tea stall, was also coming in the road and he was also just proceeding. At that time, the accused was coming from north to south in the motor cycle. The deceased was also coming in the motor cycle from south and he was just overtaking P.Ws.1 and 3. P.W.5 found the accused overtaking him and he was able to see that the Koduval was projecting on his back side and he entertained suspicion. P.Ws.1 to 5 have seen that the accused stopped his vehicle, waylaid the deceased and attacked him with M.O.1, Koduval on different parts of his body indiscriminately, as a result of which the deceased succumbed to the injuries at the spot instantaneously. When P.Ws.1 to 4 attempted to go to his rescue, the accused threatened all of them, because of which, they did not go nearby. The accused fled away from the place of occurrence. c)P.W.1 proceeded to his village, informed to the relatives and thereafter, he proceeded to the respondent police station at about 7.15 p.m. He gave Ex.P.1, the written complaint to P.W.19, the Sub Inspector of Police. On the strength of the same, P.W.19 registered a case in crime No.170 of 2007 under Sections 341, 302 https://hcservices.ecourts.gov.in/hcservices/ and 506(2) IPC. Ex.P.15, the F.I.R. was despatched to the Court and it reached the concerned Judicial Magistrate's residence at 8.30 p.m. d)P.W.20, the Inspector of Police, on receipt of the copy of the F.I.R., took up the investigation, proceeded to the spot and made an inspection in the presence of the witnesses. He prepared Ex.P.10, the observation mahazar and Ex.P.16, the rough sketch. He also conducted inquest on the dead body of the deceased in the presence of the witnesses and panchayatdars and prepared Ex.P.17, the inquest report. The dead body and the place of occurrence were photographed through P.W.8, the photographer. M.O.4, C.D. and M.O.5 (series) photos were marked. The dead body was sent to the Government Hospital for the purpose of autopsy. P.W.20 also recovered bloodstained earth, sample earth, both the motor cycles and the other material objects under the cover of mahazar. e)P.W.12, the Doctor attached to the Government Hospital, Dharapuram, on receipt of the requisition, has conducted post- mortem on the dead body of the deceased and has issued Ex.P.8, the post-mortem certificate, wherein he has opined that the deceased would appear to have died of shock and haemorrhage due to the multiple injuries about 12 to 16 hours prior to autopsy. f)Pending investigation, the accused was arrested on 12.3.2007, who came forward to give confessional statement voluntarily, which was recorded in the presence of the witnesses, the admissible part of which was marked as Ex.P.12. Pursuant to the same, the accused produced M.O.1, Koduval and the bloodstained shirt and lungi, which were recovered under a cover of mahazar. The accused was sent for judicial remand. P.W.6, the Motor Vehicle Inspector examined both the motor cycles and has given Ex.P.2, the report as to the damages caused to the motor cycles. All the material objects were subjected to chemical analysis by the Forensic Science department and necessary certificates were obtained and produced before the court. On completion of the investigation, the Investigating Officer has filed the final report. 3.The case was committed to the court of Sessions and necessary charges were framed. In order to substantiate the charges, the prosecution examined 21 witnesses and also relied on 21 exhibits and 17 M.Os. On completion of the evidence on the side of the prosecution, the accused was questioned under Section 313 Cr.P.C. as to the incriminating circumstances found in the evidence of prosecution witnesses, which he flatly denied as false. On the side of the defence, one witness was examined and three documents were marked. On completion of the evidence on both sides, the trial court heard the arguments advanced on both sides, took the view that the prosecution has proved the case beyond reasonable doubt, found the accused guilty as per the charges and awarded punishments as referred to above. Hence this appeal has arisen at the instance of the appellant. https://hcservices.ecourts.gov.in/hcservices/ 4.Advancing arguments on behalf of the appellant, the learned Senior Counsel would submit that in the instant case, according to the prosecution, the occurrence has taken place on 10.03.2007 at about 5.15 p.m. in a public road; that according to the prosecution, P.Ws.1 to 5 were the eyewitnesses; that P.Ws.1 to 4 are the relatives; that P.W.1 is the younger brother and P.W.2 is the son-in-law of the deceased; that P.W.3 is the brother-in-law of P.W.1; that P.W.4 is also the relative of the deceased and thus, they are close relatives to each other; that if their evidence is scrutinized carefully, their evidence should have been rejected; that though the prosecution claimed that P.W.5 was an independent witness, he was the chance witness and it has also been suggested that he was working under P.W.1; that all the five witnesses have actually come forward to give false evidence as to the involvement of the accused in the crime of murder; that the commencement of the prosecution story was that when the wife of P.W.1 was in the house, the accused came over there with the Koduval and threatened her; that immediately, she informed through the land line to P.W.1, who was having cell phone; that at that time, he was doing agricultural operations, but this has been disproved by adducing evidence from the Telephone department that there was no such call from the land line to P.W.1 as put forth by the prosecution and thus, this part of the evidence was actually disproved and further, the evidence of P.Ws.1 to 4 would reveal that it was parrot-like evidence as to the narration of the incident and the injuries one after another and thus, it would indicate that they were tutored in order to suit the prosecution case and hence they could not have seen the occurrence at all. 5.Added further the learned Senior Counsel that so far as P.W.5 was concerned, according to him, he was actually proceeding in his cycle; that he was having tea in the tea stall at about 4.30 p.m. and thereafter, he was going on his way and at that time, he found the accused going in his Hero Honda motorbike and he also found M.O.1 which was hidden on the back side of the accused; that the learned counsel brought to the notice of the court that M.O.1 was too long and weighty also, which could not be ordinarily handled and apart from that, it was highly improbable to hide the same on the back side of the accused; that the same could not be hidden; that as usual, there was arrest, confessional statement and the recovery of M.O.1, Koduval, which were nothing but prepared to suit the prosecution case; that the very look of M.O.1, Koduval would itself be sufficient to reject the evidence of P.W.5 and apart from that, according to P.Ws.1 to 4, it was M.O.1 with which the accused has attacked the deceased, but it cannot be so, since it is improbable. 6.The learned Senior Counsel would further point out the conduct of P.Ws.1 to 4, who are the close relatives of the deceased; that when the deceased was being attacked by the accused with M.O.1, Koduval, nobody went to his rescue or to save https://hcservices.ecourts.gov.in/hcservices/ him; that this would be highly unnatural, which would be pointing to the fact that P.Ws.1 to 4 could not have seen the occurrence at all; that according to P.W.1, after the occurrence was over, he went to the Village, informed to all and thereafter, prepared Ex.P.1, the complaint, went to the police station and handed over Ex.P.1 to P.W.19, the Sub Inspector of Police; that on the contrary, P.W.2 has deposed that P.W.1 went to the police station, brought the police and the complaint was prepared at the scene of occurrence and thus, it is highly doubtful whether Ex.P.1, the written complaint has come into existence as put forth by the prosecution; that it is also highly doubtful whether it was the scene of occurrence as put forth by the prosecution; that the learned Senior Counsel took the court to the report of the Motor Vehicle Inspector as to the damages caused to the vehicle, which was alleged to have been driven by the deceased; that the head light was broken and the right rear view mirror damaged, etc.; that contrarily, the photographs did not indicate that there were any glass pieces found on the ground; and that this would be quite clear that this could not have been the place of occurrence at all. 7.Added further the learned Senior Counsel that there was not only delay in giving the complaint at about 7.15 p.m., but also it reached the Magistrate concerned at 8.30 p.m., after a delay of an hour; that it is admitted by the witnesses that the residence of the Judicial Magistrate concerned is situated near to the police station and it can be reached within 3 to 5 minutes and thus, there was a delay; that this fact coupled with the delay in reaching the F.I.R. to the court would go to show that there were manipulations and also embellishments in the entire case and thus, the prosecution has miserably failed to prove its case and hence the appellant is entitled for acquittal in the hands of this court. 8.The court heard the learned Additional Public Prosecutor on the above contentions and has paid its anxious consideration on the submissions made. 9.It is not in controversy that one Balasubramaniam, the brother of P.W.1 was done to death in an incident that took place on 10.03.2007 as put forth by the prosecution. Following the inquest made by the Investigating Officer, the dead body was subjected to post-mortem by P.W.12, the Doctor, who has given his categorical opinion as a witness before the court and has also issued Ex.P.8, the post-mortem certificate to the effect that the deceased died out of homicidal violence. The deceased died out of homicidal violence was never the fact disputed by the appellant before the trial court and hence without any impediment, it could be recorded so. 10.In order to substantiate that it was the accused who attacked the deceased with Koduval and caused his instantaneous death, the prosecution relied on the evidence of P.Ws.1 to 5. It https://hcservices.ecourts.gov.in/hcservices/ is true, P.Ws.1 to 4 are close relatives to each other and also to the accused. A comment made by the learned Senior Counsel was that the evidence of P.Ws.1 to 4 was parrot-like evidence and they are also close relatives to each other cannot be countenanced. P.Ws.1 to 4 have clearly spoken as to how they happened to be at the place of occurrence at that time. In a given case like this, the relevant fact in this nature of the factual position is that there was nothing for embellishment at all. According to P.W.3, he came to meet his brother-in-law P.W.1, who was doing agricultural operations and after agricultural operations were over, they were just proceeding towards the house and at that time, the deceased just went in front of them from south to north and the accused was also coming from north to south. P.Ws.2 and 4, who happened to come in the motorbike, after seeing P.Ws.1 and 3, joined with them and they were proceeding. At that time, the occurrence has taken place. According to all the witnesses, the accused was coming from north, while the deceased was coming from the south. Both were coming in the two wheeler. The accused on seeing the deceased stopped his vehicle, got down, waylaid the deceased and immediately, attacked him with Koduval, which he was having. 11.The learned Senior Counsel brought to the notice of the court that M.O.1, Koduval was too long, which could not be hidden and it was also weighty, which could not be handled. This contention cannot be accepted at all. M.O.1 is also witnessed by the court. In the instant case, the evidence of P.W.5 is worth mentioning at this stage. According to P.W.5, he has seen the occurrence in a distance of 100 feet. He found the accused overtaking him and at the same time, he also found that the accused was having Koduval on his back and the same was also projecting above his neck and he entertained suspicion and within a short span of minutes, the occurrence has taken place. Thus, it would be indicative of the fact that though it was long, it was hidden by him on his back side and it was also placed before the court. The court is of the considered opinion that it would not be difficult to handle the same. P.Ws.1 to 5 have categorically narrated the incident. The contention put forth by the learned Senior counsel that there were embellishments and improvements in their evidence cannot be accepted. 12.So far as Ex.P.1, the written complaint is concerned, the court is able to see difference in the evidence of P.Ws.1 and 2. According to P.W.1, he went to the village, prepared the complaint, took the same to the police station and handed over it to P.W.19, who registered the case. According to P.W.19, he received the written complaint and on the strength of the same, a case came to be registered. P.W.1, from the place of occurrence, has rushed to the village and informed to the villagers and then, went to the police station with the written complaint. The evidence of P.W.1, the author of the complant and also P.W.19, the receiver of the same are consistent to the fact that it was the written complaint. Hence the evidence of P.W.2 cannot be https://hcservices.ecourts.gov.in/hcservices/ given much weight at all. Further, this court is unable to notice any delay in reporting the matter to the police or reaching the F.I.R. to the concerned Judicial Magistrate. The complaint was received at 7.15 p.m. and the case was registered and after preparation of the F.I.R. and also the copies, the original F.I.R. along with Ex.P.1 were sent to the concerned Judicial Magistrate's residence at about 8.30 p.m. and thus, no delay is also noticed. 13.The learned Senior Counsel made a comment on the prosecution case that the scene of occurrence as shown by the prosecution was not the place of occurrence at all. At this juncture, it remains to be stated that the two vehicles have been recovered from the place of occurrence, one belonged to the deceased and the other belonged to the accused. The vehicles recovered were marked as M.Os.2 and 3 respectively. So far as M.O.3 is concerned, the specific case of the prosecution was that it belonged to the accused and this fact was not denied. At this juncture, it is for the accused to come with an explanation as to how his vehicle happened to be at the place of occurrence. The learned Senior Counsel came with a feeble explanation that the vehicle of the accused was brought to the place of occurrence and was set up in order to show as if the accused was involved in the offence. The court is of the considered opinion that it cannot but be an outcome of fragile imagination on the side of the appellant. Further, the Investigating Officer has inspected the scene of occurrence and prepared observation mahazar, which was actually proved through the witnesses. Apart from that, all the material objects recovered from the place of occurrence, including the bloodstained earth, were subjected to chemical analysis and human blood was found. The contention of the learned Senior Counsel that the scene of occurrence is not the place as stated by the prosecution cannot be accepted at all. 14.It is true, the witnesses are chance witnesses. In a given case like this, the court, before accepting the evidence of chance witnesses, must look into whether those witnesses are able to explain as to how they happened to be at the place of occurrence. If the court is satisfied with the reasons given by those witnesses as to their presence at the time and place of occurrence, the court has to accept their evidence. Merely because P.Ws.1 to 4 are the close relatives, the court cannot discard their testimony. Despite application of the test of careful scrutiny, the court is thoroughly satisfied with their evidence. 15.The last comment made by the learned Senior Counsel is that P.Ws.1 to 4 did not go to the rescue of the deceased when he was being attacked by the accused. This contention cannot be accepted for the reason that it depends upon the frame of mind of each individual. In the instant case, P.Ws.1 to 4 remained unarmed and the accused was armed with Koduval and has attacked the deceased indiscriminately. At that time, P.Ws.1 to 4 have https://hcservices.ecourts.gov.in/hcservices/ been threatened and they have categorically spoken about this fact and on the basis of which, the charge has also been framed and the accused was also found guilty, which remained a good answer to the contention put forth by the learned Senior Counsel for the appellant. Under these circumstances, this court is unable to agree with all or any one of the contentions put forth by the learned Senior Counsel for the appellant and they are liable to be rejected. Accordingly, they are rejected. 16.In the result, this criminal appeal fails and the same is dismissed, confirming the conviction and sentence imposed on the appellant by the trial court. Vvk Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To 1.The Additional District and Sessions Judge, Fast Track Court No.3, Dharapuram. 2.Do Thro' The Sessions Judge, Erode. 3.The Inspector of Police, Dharapuram Police Station, Erode District. 4.The Additional Public Prosecutor, High Court, Madras. 5.The Superintendent, Central Prison, Coimbatore. 6.The District Collector, Erode. 7.The Director General of Police, Madras. • 1 cc to Mr. T. Gowthaman, Advocate SR No. 70415 KLT(CO) SR/26.12.2008 CRL.A.NO.191 OF 2008 https://hcservices.ecourts.gov.in/hcservices/