IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 1-3-2010 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE C.S.KARNAN CRL.A.No.423 of 2009 1.Mani @ Munusami 2.Rajagopal 3.Ramakrishnan @ Ramachandran 4.Perumalsamy .. Appellants/ Accused 1 to 4 vs Inspector of Police Thudiyalur Police Station Coimbatore Cr.No.346/2008 .. Respondent Criminal appeal preferred under Sec.374(2) of the Code of Criminal Procedure against the judgment of the Additional Sessions Judge, Fast Track Court No.I, Coimbatore, made in S.C.No.191 of 2008 dated 23.12.2008. For Appellants : Mr.C.M.Gunasekaran for Mr.V.Purushothaman For Respondent : Mr.V.R.Balasubramanian 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, Coimbatore, made in S.C.No.191 of 2008 whereby the appellants four in number stood charged i.e., A-1 under Sec.302 of IPC and A-2 to A-4 under Sections 341, 302 read with 34 and 109 of IPC, tried and found guilty and A-1 was awarded life imprisonment along with a fine of Rs.2500/- and default sentence and A-2 to A-4 were awarded a fine of Rs.250/- with default sentence under Sec.341 of IPC and life imprisonment along with a fine of Rs.2500/- and default sentence under Sec.302 of IPC. 2.Short facts necessary for the disposal of this appeal can be stated as follows: https://hcservices.ecourts.gov.in/hcservices/ (a) P.W.1 is a native of Vetrilaikalipalayam. The deceased Ashokan was his brother-in-law. A-4 is the father of A-1 to A-3. On the date of occurrence i.e., 30.4.2008, a festival was going on at Mariamman Temple at Vetrilaikalipalayam. On that day at about 1.45 P.M., the poovodu was taken to the temple. It was the usual practice that P.W.1 was to take and hand over the same to the accused to which course A-1 to A-4 raised their objection. The same was questioned by the deceased, who was the brother-in-law of P.W.1. Immediately A-2 to A-4 shouted that he should be cut. Then A-1 who was having an aruval in hand, cut him on the shoulders twice, and there was profused bleeding. There was a hue and cry, and immediately the accused ran away from the place of occurrence. The occurrence was witnessed by P.Ws.1 to 3. Immediately, the severely injured Asokan was taken to V.G. Hospital where P.W.9 was the Doctor on duty. He medically examined and declared him dead. (b) P.W.1 proceeded to the respondent police station where P.W.10 was the Sub Inspector of Police on duty, to whom the written complaint was given by P.W.1 which is marked as Ex.P1, on the strength of which a case came to be registered in Crime No.346 of 2008 under Sections 342 and 302 of IPC. The printed FIR, Ex.P11, was sent to the Court along with Ex.P1, the report. (c) P.W.12, the Inspector of Police of the Circle, on receipt of the copy of the FIR, took up investigation, proceeded to the spot, made an inspection and prepared an observation mahazar, Ex.P3, and also a rough sketch, Ex.P13. The Photographer, P.W.7, took the photographs. Then the Investigating Officer conducted inquest on the dead body of Ashokan in the presence of witnesses and panchayatdars and prepared an inquest report, Ex.P14. Then a requisition was given to the Government Hospital for the purpose of autopsy. (d) P.W.11, the District Police Surgeon & Professor, Forensic Medicine, Coimbatore Medical College & Hospital, on receipt of the requisition, conducted autopsy on the dead body of Ashokan and has noticed the following injuries: "1)A vertically oblique cut injury measuring 26x8 cm over top of left shoulder and adjoining chest exposing the opened underlying shoulder joint and upper end of humerus. The wound passes obliquely inwards cutting the head of humerus (greater tubercle) and upper border of scapula obliquely to a length of 7cms. The total depth of the wound is 13 cm. 2)Another vertically oblique cut injury measuring 20x4cm over top of left shoulder seen 4cm inner and parallel to wound No.1. The wound passes downwards and inwards cutting the underlying muscles, nerves and great vessels (Subclavian Artery) totally and ends at the level of inner end of left scapula. The depth of the wound is 7cm. 3)Reddish abrasions 3x2cm over inner aspect of left lower thigh and 1x0.5 cm over mid chin." The Doctor has issued a postmortem certificate, Ex.P12, with his opinion that the deceased would appear to have died of. Shock and haemorrhage due to injury No.1 and 2 sustained by him. https://hcservices.ecourts.gov.in/hcservices/ (e) Pending the investigation, the Investigating Officer arrested all the accused at about 12.15 A.M. on the day in the presence of witnesses. A-1 came forward to give a confessional statement. The admissible part of the said confessional statement is marked as Ex.P5, pursuant to which he produced M.O.1, aruval, the weapon of crime. All the accused were sent for judicial remand. All the material objects recovered from the place of occurrence and from the dead body and also M.O.1, aruval, were sent for chemical analysis. Accordingly, they were subjected to as a result of which Ex.P22, the chemical analyst's report, and Ex.P23, the serologist's report, were also produced before the Court. (f) P.W.13, the 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 13 witnesses and also relied on 23 exhibits and 12 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; but, two documents were marked as Exs.D1 and D2 on their side. The trial Court heard the arguments advanced and took the view that the prosecution has proved the case beyond reasonable doubt and hence found them guilty and awarded the punishments as referred to above. Under the circumstances, this appeal has arisen before this Court. 4.Advancing arguments on behalf of the appellants, the learned Counsel Mr.C.M.Gunasekaran would submit that in the instant case, the occurrence is alleged to have taken place at about 1.45 P.M. on 30.4.2008; that P.Ws.1 to 3 were shown as eyewitnesses; that P.W.1 is the brother-in-law of the deceased, and P.Ws.2 and 3 belonged to the same community and thus they came forward to give a false evidence; that the specific case of the prosecution was that at the time of the festival in the Mariamman Temple, the occurrence has taken place in front of the temple; but, as could be seen from the available materials, it is found to be different; that according to P.Ws.1 to 3, immediately after the occurrence Ashokan was taken to V.G. Hospital where P.W.9 was the Doctor on duty; that P.W.9 was examined; that according to him, it was alleged that the occurrence has taken place at Rakkipalayam as mentioned in the accident register which was produced by him; that it is further to be pointed out that according to the prosecution, the occurrence has taken place in front of the Mariamman temple at Vetrilaikalipalayam; that P.W.12, the Investigator, when cross- examined, would categorically admit that the said places are divided by the road, and thus it would be quite clear that the places are different; and that according to P.W.9, the Doctor, as recorded by him the occurrence has taken place in front of the house of the deceased pursuant to a quarrel. https://hcservices.ecourts.gov.in/hcservices/ 5.Added further the learned Counsel that there were contemporaneous documents available in the VG Hospital; that according to the Doctor, P.W.9, the documents were handed over to the police; that according to P.W.12, 13 documents were received from the medical person; that this would also go to show that the documents were actually suppressed by the prosecution for the reasons best known to them; and that since those contemporaneous documents were not produced, it is a fit case where an adverse inference has got to be drawn. 6.The learned Counsel would further add that according to P.Ws.1 to 3, there was police bandobust for a period of three days and police should have got information and immediately the case should have been registered; that according to P.Ws.1 to 3, they took the severely injured Ashokan to the hospital and police officials have also come to the hospital; that if to be so, the case should have been registered early; that at least some information should have reached the hands of the police; and that actually that information was the first information; but, the same has also been suppressed. 7.The learned Counsel would further urge that Ex.P1 is the statement given by P.W.1 on the strength of which the case came to be registered by P.W.10, the Sub Inspector of Police; but, when the documents are perused, Ex.P1 actually contained no initial of the Magistrate, but contained the seal of the Court indicating that it was received by the Court on 2.5.2008; that it would be quite indicative of the fact that it has reached the Court only on 2.5.2008 and not immediately and that too in a case of murder; and that this would also create a reasonable doubt. 8.Added further the learned Counsel that P.Ws.1 to 3 though claimed that they took him to the hospital immediately, their clothes were not found with bloodstains; that P.W.7, the Photographer, has also stated that there was no bloodstain on the earth at the time when he took photographs; that apart from that, the inquest has taken place, according to the Investigator, between 1930 and 2200 hours on 30.4.2008; but, the inquest report has reached the Court only on 2.5.2008; that even the statements of P.Ws.1 to 3, the so-called eyewitnesses, recorded under Sec.161 of Cr.P.C., have reached the Court on 2.5.2008; and that all would clearly show that all these are fabricated. 9.Added further the learned Counsel as the last point that though the prosecution would claim that all the accused persons were arrested on the night of 30.4.2008 i.e., at 12.15 A.M.; that P.W.5 has categorically admitted that all the accused persons were found in the police station at about 5.00 P.M., and hence the arrest, confessional statement and the recovery of the weapon of crime have got to be rejected. 10.It is further submitted by the learned Counsel that as far as the weapon of crime produced before the Court was concerned, it was not found with any bloodstains; that all would clearly https://hcservices.ecourts.gov.in/hcservices/ indicate that the prosecution has not placed the true case before the Court; that it was a fit case where benefit of doubt should be given to the appellants/accused and hence they have got to be acquitted. 11.The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made. 12.It is not in controversy that one Ashokan the brother-in- law of P.W.1, died out of homicidal violence as declared by P.W.9, the Doctor, attached to VG Hospital. Following the registration of the case under Sec.302 of IPC, the inquest was conducted by P.W.12, the Investigator, as found in the inquest report. Thereafter, the dead body was subjected to postmortem by P.W.11, the Doctor, who has given his opinion as a witness before the Court and also through the contents of the postmortem certificate that the deceased would appear to have died of shock and haemorrhage due to the injuries sustained by him. The fact that he died out of homicidal violence was never disputed by the appellants before the Court and hence it could be safely recorded so. 13.In order to substantiate that at the time of occurrence, it was A-1 who cut him on the shoulders, the prosecution examined three witnesses namely P.Ws.1 to 3. It is true that P.W.1 is the brother-in-law of the deceased. P.Ws.2 and 3 also belonged to the same community. It is settled principle of law that merely because the eyewitnesses happened to be close relatives or they belonged to the same community, their evidence cannot be discarded. But before acceptance, it should be subjected to careful scrutiny. In the instant case, P.Ws.1 to 3 have spoken in one voice that at the time of occurrence, they were all standing in front of the temple along with the deceased; that the poovodu was handed over by P.W.1 to A-4; that the same was objected to by the accused; that it was questioned by the deceased and then immediately, A-1 cut him on the shoulders and ran away from the place of occurrence. Despite cross-examination in full, their evidence remained in tact. 14.Now, the learned Counsel for the appellants raised all the above contentions. But, this Court is of the considered opinion, after careful scrutiny of the evidence in entirety, that the prosecution had not brought forth sufficient evidence insofar as A-2 to A-4. As regards A-1, all the contentions put forth by the learned Counsel, in the considered opinion of the Court, do not merit acceptance for the following reasons. 15.It is true that the occurrence has taken place at about 1.45 P.M., and immediately, P.Ws.1 to 3 have taken him to VG Hospital. According to the Counsel, P.W.9, the Doctor, has actually recorded that the quarrel has taken place in front of the house of the deceased at Rakkipalayam. But, according to the prosecution, the occurrence has taken place in front of the place https://hcservices.ecourts.gov.in/hcservices/ at Mariamman Temple at Vetrilaikalipalayam. At the time of the investigation, P.W.12 has drawn a sketch and also prepared an observation mahazar. The witnesses have been examined in that regard. The evidence of the observation mahazar witness would be indicative of the fact that the occurrence has taken place in front of the Mariamman temple. It is further to be pointed out that even the Investigator has clearly pointed out that both the villages are adjacent to each other, and there was only one road dividing both. It would be quite clear that all the witnesses and also the crowed gathered belonged to both the villages. Now, at this juncture, it is pertinent to point out that the evidence of P.W.9, the Doctor, as recorded there, cannot be a reason to doubt the prosecution version that the occurrence has taken place in front of the Mariamman temple. 16.It is true that the case was registered at about 3.30 P.M. by P.W.10, the Sub Inspector of Police when P.W.1 approached the police along with the written complaint, Ex.P1. Insofar as the documents which have been received by the Court are concerned, the inquest report and the statements of P.Ws.1 to 3 under Sec.161 of Cr.P.C. have actually been received on 2.5.2008. Needless to say that the 1st of May was actually a holiday, and all these documents though received earlier, it could be seen only on 2.5.2008. It is pertinent to point out that Ex.P1, the contents of which are actually reproduced in the FIR, bore the seal of the Court with the date 2.5.2008, and the Judicial Magistrate has initialed the FIR at about 6.15 P.M. on 30.4.2008. Thus, it would be clearly indicative of the fact that the printed FIR, which is a verbatim reproduction of Ex.P1, reached the Court on the very day of occurrence. Thus, it leaves no doubt in the mind of the Court. 17.Apart from the above, the contention that P.Ws.1 to 3 though they claimed to have taken the body of Ashokan to VG Hospital, their clothes were not trenched with bloodstains cannot be a reason to doubt their testimony. Added further, the evidence of the photographer was to the effect that when he went to take the photographs, there was no bloodstain found in the place of occurrence. It remains to be stated that it was a festival day, and festive occasion was going on before the temple, and under the circumstances, there was every possibility of the bloodstains being washed of. 18.Now coming to the contentions put forth by the learned Counsel for the appellants in respect of the recovery of the weapon of crime, as rightly pointed out by him, P.W.5 has categorically stated that all the accused persons were found in the police station at about 5.00 P.M., and thus the claim of the Investigator that they were arrested on the night of 30.4.2008 i.e., at 12.15 A.M. and also the confessional statement given by A-1 and the alleged recovery cannot but be false. Even after the rejection of that part of the evidence, this Court is able to see sufficient materials in order to find A-1 guilty. The evidence would go to show that it was A-1 who cut the deceased on the shoulders with the aruval and as a direct consequence he died. To https://hcservices.ecourts.gov.in/hcservices/ that extent, the prosecution has its case. It is further to be pointed out that even according to the witnesses, there was a quarrel preceding the occurrence. At the time of the festive occasion, due to the sudden quarrel, A-1 being provoked by the intervention made by the deceased who was a third party under the situation, has cut him on the shoulders. 19.Another factor which must be considered by the Court is that had A-1 been with an intention of causing his death, he would have actually cut him on the vital part, but only on the shoulders. Taking into consideration the facts and circumstances of the case, this Court feels that it is a fit case where the act of A-1 would not attract the penal provision of murder, but it would fall under Sec.304 (Part I) of IPC, and awarding punishment of 7 years Rigorous Imprisonment would meet the ends of justice. 20.As far as A-1 is concerned, the conviction and sentence of life imprisonment imposed by the trial Court on A-1 under Sec.302 of IPC are set aside, and instead, he is convicted under Sec.304 (Part I) of IPC and is directed to suffer seven years Rigorous Imprisonment. The sentence already undergone by him shall be given set off. The fine imposed by the trial Court will hold good. 21.As regards A-2 to A-4, the judgment of the trial Court is set aside, and they are acquitted of the charges levelled against them. The fine amounts if any paid by them shall be refunded to them. 22.Accordingly, this criminal appeal is partly allowed. It is reported that A-2 to A-4 are in jail. Hence, A-2 to A-4 are directed to be set at liberty forthwith unless their presence is required in connection with any other case. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. nsv 1.The Additional Sessions Judge F.T.C.I, Coimbatore 2. do thro the Principal Sessions Judge Coimbatore 3.The Inspector of Police Thudiyalur Police Station Coimbatore https://hcservices.ecourts.gov.in/hcservices/ 4. The District Collector Coimbatore 5. The Director General of Police Chennai 6. The Superintendent Central Prison, Coimbatore 7..The Public Prosecutor High Court, Madras. 8. The Section Officer Criminal Section, High Court, Madras 1 cc to Mr.V. Purushothaman, Advocate, Sr. 14175 CRL.A.No.423 of 2009 KV (CO) kk 9/3 https://hcservices.ecourts.gov.in/hcservices/