IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 6-4-2010 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE C.S.KARNAN CRL.A.No.83 of 2010 A.Balu @ Jothi Balu .. Appellant/Accused 2 vs Inspector of Police Lawspet Police Station Pondicherry (Crime No.184 of 2001) .. Respondent/Complainant Criminal appeal preferred under Sec.374(2) of the Code of Criminal Procedure against the judgment of the Additional Sessions Judge II, Pondicherry, made in S.C.No.51 of 2004 dated 5.1.2010. For Appellant : Mr.A.Ramesh Senior Counsel for Mr.V.Vijayakumar For Respondent : Mr.M.R.Thangavel Government Advocate (Pondicherry) JUDGMENT (Judgment of the Court was delivered by M.CHOCKALINGAM, J.) Challenge is made to a judgment of the II Additional Sessions Division, Pondicherry, made in S.C.No.51 of 2004 whereby A-2, the appellant herein, stood charged along with the other accused, who was arrayed as A-1, under Sections 302, 307 and 379 read with 34 of IPC, tried, found guilty under Sections 302, 324 and 379 read with 34 IPC and awarded life imprisonment along with a fine of Rs.1000/- and default sentence, 3 years Rigorous Imprisonment along with a fine of Rs.1000/- and default sentence and 3 years Rigorous Imprisonment along with a fine of Rs.1000/- and default sentence respectively. The trial Judge recorded that the charges levelled against A-1 Anand @ Anandakrishnan stood abated since he died pending trial. 2.Short facts necessary for the disposal of this appeal can be stated as follows: (a) P.W.1 is a resident of Thiagamudaliar Nagar, Mudaliarpet. The deceased Selvaraj was working with him in Rodiar Mill, and both of them were running an Ashram by name Sarguru Ganapathy Swami Ashram which was actually intended to help the poor. On 4.11.2001 https://hcservices.ecourts.gov.in/hcservices/ at about 12.45 A.M., the said Selvaraj woke P.W.1 up and told him that the bricks belonging to the ashram were being removed. Immediately, both of them went nearby, and there was actually a bullock cart by the side of which A-1 was there. When A-1 was questioned by Selvaraj, he replied that all those bricks would be placed back in the morning. P.W.1 was just about to turn back. At that time, A-1 attacked the deceased on his head, and when P.W.1 was also attacked, he fell on his TVS 50. When he got up, he found both the accused attacking the deceased on his head with the iron rods. Immediately both the accused fled away from the place of occurrence. (b) P.W.1 rushed to the house of P.W.4 and informed him and from there P.W.1 was taken to Lawspet Hospital, and thereafter he was referred to the Government Hospital for further treatment. He was admitted by the Doctor and was given treatment. A communication was sent to the Out Post Police Station which in turn gave intimation to the respondent police station. P.W.8, the Sub Inspector of Police, who was on duty at about 3.30 A.M. on 4.11.2001, on receipt of the intimation, proceeded to the hospital, recorded the statement of P.W.1, came back to the station and registered a case in Crime No.184 of 2001 under Sections 307 and 379 read with 34 IPC. Ex.P8 is the printed FIR. At about 5.45 A.M., the son of the deceased by name Suresh came to the station and gave a signed report as if his father died in the same incident. Then the case was actually converted to Sec.302 of IPC. The amended FIR, Ex.P9, was sent to the Judicial Magistrate. (c) P.W.9, the Inspector of Police of the Circle, took up investigation, proceeded to the spot, made an inspection and prepared an observation mahazar, Ex.P10, and also a rough sketch, Ex.P11. Then he conducted inquest on the dead body in the presence of witnesses and panchayatdars and prepared an inquest report, Ex.P26. The dead body was sent to the Government Hospital for the purpose of postmortem. (d) P.W.12, the Specialist G-II & Head, Department of Forensic Medicine, General Hospital, Pondicherry, conducted autopsy on the dead body of Selvaraj and has issued a postmortem certificate, Ex.P15. He has given his final opinion in Ex.P17 that the death was due to head injuries. (e) The statement of P.W.1 and other witnesses were recorded. P.W.1 was actually given treatment. The wound certificate is marked as Ex.P31. Pending investigation, the accused were arrested on 6.11.2001. A-1 volunteered to give a confessional statement. The same were recorded. Following the same, he produced both the iron rods which were recovered under a cover of mahazar Ex.P29. They were sent for judicial remand. (f) A requisition was placed before the Chief Judicial Magistrate for the purpose of test identification parade. After it is being ordered, P.W.14, the Judicial Magistrate, conducted the test identification parade in the Central Prison so far as A-2 was concerned. P.W.1 has actually identified him properly, and the test identification parade proceedings are marked as Ex.P24 before the Court. (g) All the material objects recovered from the place of occurrence and from the dead body and the material objects recovered from the accused were sent for analysis. Ex.P32, the serologist's report, and Ex.P33, the chemical analyst's report, were received and placed before the Judicial Magistrate's Court. P.W.15, the https://hcservices.ecourts.gov.in/hcservices/ Inspector of Police, took up further investigation, and on completion of the same, filed the final report. 3.The case was committed to Court of Sessions, and necessary charges were framed. In order to substantiate the charges, the prosecution examined 15 witnesses and also relied on 33 exhibits and 22 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 found the appellant who is shown as A-2, guilty and awarded punishment as referred to above. Hence this appeal at the instance of the appellant. 4.Advancing arguments on behalf of the appellant, the learned Senior Counsel Mr.A.Ramesh would submit that the occurrence, according to the prosecution, has taken place at 1.00 A.M. on 4.11.2001; that the only eyewitness, according to the prosecution, was P.W.1; and that a careful scrutiny of the evidence of P.W.1 would clearly indicate that though he could have seen the occurrence, his evidence that A-2 had also a role to play in the occurrence cannot but be false. According to the learned Senior Counsel, P.W.1 would claim that immediately after the occurrence, he proceeded to the house of P.W.4, informed him, went to the hospital and had treatment, and now at this juncture, it is pertinent to point out that when his friend, the deceased Selvaraj, was severely injured at the place of occurrence, he did not care to inform to anybody about the same, but he proceeded to the hospital for getting treatment for himself. 5.The learned Senior Counsel would further add that the earliest document which has come into existence, is Ex.P1; that as far as Ex.P1 is concerned, he has specifically mentioned the name of A-1 at seven places, but he has not even mentioned the name of A-2 nor his complexion or bodily description; and that it would clearly indicate that he could not have seen him at all. 6.Added further the learned Senior Counsel that so far as P.W.1 was concerned, he has specifically stated that he gave the name and also the description of A-2; but, they were not found in Ex.P1; that it also casts a doubt whether Ex.P1 is the complaint given by him; that according to P.W.9, the Investigator, subsequently within half an hour therefrom, the son of the deceased one Suresh came to the police station and gave a signed complaint wherein he has specifically stated that his own father died in the course of the same transaction; that the case, according to the Investigator, has been amended to Sec.302 IPC and a report, Ex.P9, to that effect has also been placed before the Judicial Magistrate, but neither the signed complaint given by Suresh was produced, nor was he examined before the Court for the reasons best known; that this would also be fatal to the prosecution case; that P.W.14, the Judicial Magistrate, has been examined; that according to her, she conducted test identification parade, and at the time of the parade, A-2 has specifically stated to her that he was shown earlier to P.W.1; that https://hcservices.ecourts.gov.in/hcservices/ it is also pertinent to point out that she has not followed the procedural formalities as envisaged under the Cr.P.C., and hence the identification parade cannot be given any effect at all. 7.Added further the learned Senior Counsel that the Doctor who gave initial treatment to P.W.1, was not examined; that neither the accident register copy nor the wound certificate has been produced; that at the earliest point of time, it is doubtful whether Ex.P1 could have been the complaint given; that under the circumstances, the evidence of P.W.1 was shrouded with all reasonable doubts and it would be highly unsafe to sustain a conviction, but the trial Court has taken an erroneous view, and hence the judgment of the trial Court has got to be set aside. 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 Selvaraj died in an incident that had taken place at about 1.00 A.M. on 4.11.2001, at the place as put forth by the prosecution. On the conduct of inquest by P.W.9, the Investigator, the dead body was subjected to postmortem by P.W.12, the Doctor, who has given a categorical opinion that he died out of head injuries. While the prosecution came forward with the specific case of death of homicidal violence, it was never disputed by the appellant before the trial Court, and hence the trial Judge was perfectly correct in recording that he died out of homicidal violence. 10.In order to establish the charges levelled against the appellant along with the other accused, the prosecution had only one witness before the trial Court as eyewitness namely P.W.1. It is settled principle of law that the Indian Evidence Act do not look for quantity of evidence, but quality of evidence. It may be a case where only one witness could be examined, but the Court can rely if it inspires the confidence of the Court. The Court can even reject number of eyewitnesses if the total evidence do not inspire the confidence of the Court. In the instant case, P.W.1 was the only eyewitness. This Court is mindful of the caution that before accepting the evidence, it must look with care and caution. In the case on hand, P.W.1 has stated that he is a good friend of Selvaraj; that they were carrying on an ashram; that he was actually sleeping in his house at about 12.45 A.M.; that he was woken by the deceased stating that the bricks were about to be removed; that immediately he woke up, proceeded with him and found a bullock cart; that it was the deceased who questioned A-1 but A-1 replied that it would be brought back in the morning hours; that at the time when they were just bout to turn back, he was actually pushed down, and he fell on his TVS 50; that when he was about to raise, he saw both the accused persons attacking Selvaraj with the iron rods on his head, and with the serious injuries, the deceased fell down. According to P.W.1, he immediately proceeded to the house of P.W.4 and informed him, and thereafter he was taken to the hospital, and at about 5.00 A.M., the Sub Inspector of Police came over there, and he gave Ex.P1 report. The earliest document, Ex.P1, would indicate that he knew A-1's name as Anand. He has also stated that two persons were available at the https://hcservices.ecourts.gov.in/hcservices/ place of occurrence, and both of them hit the deceased with iron rods. Much comment was made by the learned Senior Counsel for the appellant that he has not given any description or colour or complexion of A-2. But it should not be forgotten that the occurrence has taken place during night hours at about 1.00 A.M. Merely because the colour or complexion or description of a particular individual is not given in the report, it cannot be stated that it will cast a reasonable doubt on the prosecution case. 11.Now what has got to be seen at this stage is that P.W.1 when he gave the complaint, has specifically stated the name of A-1 and also another person who was available with him. At this juncture, it is pertinent to point out that the occurrence has taken place on 4.11.2001, and A-2 was arrested on 6.11.2001, and he was judicially remanded. P.W.14, the Judicial Magistrate of Pondicherry, has conducted identification parade on 15.11.2001, within a reasonable time where A-2 was clearly identified by P.W.1. The prosecution has also relied on the identification proceedings, Ex.P24. Now, the contention put forth that the procedural formalities were not followed cannot be accepted. In the instant case, as required by law, the identification parade has been conducted within a reasonable time from the time of arrest. This Court is unable to see any infirmity or illegality in the identification proceedings. P.W.1 who has actually seen A-2 and who did not know or name the accused in Ex.P1, has actually identified him within a reasonable point of time. This Court is unable to see any reason why the evidence of P.W.1 has got to be looked into with suspicion, and the appellant is unable to show why he should come with false evidence or unnecessarily speak of the involvement of A-2 in the crime. 12.Added further the learned Senior Counsel that the son of the deceased by name Suresh came to the Police Station within half an hour from the time of the registration of the case under Sec.307 IPC, and he gave a signed report on the strength of which the case was altered to Sec.302 IPC as found in Ex.P9. It is true that the prosecution has not brought forth the written intimation given by Suresh, nor was he examined before the trial Court. This Court is of the considered opinion that it is an irregularity committed by the prosecution. It is further to be added that merely because of that, the prosecution will not lose its rigor or truth of the case. It is an admitted position that in the same incident one Mr.Selvaraj actually died, and when P.W.1 gave the complaint to P.W.8, the Sub Inspector of Police, he has stated that Selvaraj was actually injured in the same transaction. But, he has not stated that he died because he did not know whether he was alive or not. Thus he has stated that he was severely injured. The fact that he died was brought to the notice of the police by the son of the deceased by name Suresh after verifying the same. So long as Selvaraj died in the same incident, there was no impediment for the police to alter the case to Sec.302 of IPC. Accordingly, it has been done. Hence the non-examination of Suresh or the non-production of the signed intimation will not in any way affect the prosecution case in the considered opinion of the Court. https://hcservices.ecourts.gov.in/hcservices/ 13.Added further, the ocular testimony of P.W.1 stood fully corroborated by the medical evidence adduced through P.W.12, the postmortem Doctor, and the contents of the postmortem certificate. The learned Senior Counsel brought to the notice of the Court that the Investigator would claim that both the iron rods were recovered from A-1 pursuant to the confessional statement given by him voluntarily and recorded in the presence of witnesses. This part of the evidence adduced by the prosecution should not have been accepted by the trial Court in view of the evidence of P.W.1. The evidence of P.W.1 was to the effect that both the iron rods were left at the place of occurrence, and hence the claim of the Investigator that at the time of arrest of A-1, he gave a confessional statement and pursuant to the same, both the weapons of crime were recovered cannot be accepted. In such circumstances, that part of the evidence adduced by the prosecution was of no legal consequence or evidentiary value. 14.It can be well stated that the evidence of P.W.1 has inspired the confidence of the Court and has been rightly accepted by the trial Court since it is fully corroborated by the other pieces of evidence available. It is a case where in the night hours when A-2 accompanied by the other accused went to the spot and they were in the process of removing the bricks which belonged to the ashram, and when it was questioned, the appellant/A-2 actually joined the other man in hitting the deceased on his head, and as a direct consequence he died. Therefore, the act of the appellant/A-2 cannot but be termed only as murder as defined under the Code. The learned trial Judge was perfectly correct in finding him guilty. As far as the other provisions of law are concerned, suffice evidence is noticed, and hence there is nothing to interfere in the judgment of the trial Court either factually or legally. 15.In the result, this criminal appeal fails, and the same is dismissed confirming the judgment of the trial Court. nsv Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To: 1.The Additional Sessions Judge II Pondicherry 2.The Judicial Magistrate II, Pondycherry. 3.The Director General of Police, Chennai. https://hcservices.ecourts.gov.in/hcservices/ 4.The Superintendent, Central Prison, Pondycherry 5.The Inspector of Police Lawspet Police Station Pondicherry 6.The Public Prosecutor High Court, Madras. + 1 cc to Mr.V.Vijaya Kumar, Advocate SR No.22746 + 1 cc to the Senior Government Pleader-cum- Senior Public Prosecutor for Pondicherry SR No.22385 CRL.A.No.83 of 2010 TM(CO) SR/13.4.2010 https://hcservices.ecourts.gov.in/hcservices/