IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 23-11-2010 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE C.S.KARNAN CRL.A.Nos.220 and 221 of 2010 Jegan .. Appellant in CA 220/2010 Shanmugam @ Shanmuga Sundaram .. Appellant in CA 221/2010 vs State rep. By Inspector of Police F-5, Choolaimedu Police Station Chennai District Crime No.957 of 2009 .. Respondent in both appeals Criminal appeals preferred under Sec.374(2) of the Code of Criminal Procedure against the judgment of the Additional District and Sessions Judge, Fast Track Court No.V, Chennai, made in S.C.No.292 of 2009 dated 5.3.2010. For Appellants : Mr.M.Balasubramanian for Mr.S.Sivasubramanian For Respondents : Mr.V.R.Balasubramanian Additional Public Prosecutor COMMON JUDGMENT (Judgment of the Court was delivered by M.CHOCKALINGAM, J.) This judgment shall govern these two appeals in C.A.Nos.220 and 221 of 2010 by A-1 and A-2 respectively. 2.These appeals challenge a judgment of the Additional Sessions Division, Fast Track Court No.V, Chennai, in S.C.No.292 of 2009 whereby the appellants stood charged namely A-1 under Sec.302 IPC, A-2 under Sec.302 r/w 34 IPC and both A-1 and A-2 under Sec.506(2) IPC, tried and found guilty as per the charges, and A-1 was awarded life imprisonment along with a fine of Rs.10000/- and default sentence under Sec.302 IPC, and A-2 was awarded life imprisonment along with a fine of Rs.10000/- and default sentence under Sec.302 r/w 34 IPC, and both A-1 and A-2 were awarded 3 years Rigorous Imprisonment along with a fine of Rs.1000/- and default https://hcservices.ecourts.gov.in/hcservices/ sentence under Sec.506(2) IPC. 3.Short facts necessary for the disposal of these appeals can be stated as follows: (a) P.W.1 is the elder brother; P.W.2 is the sister's husband and P.W.3 is the sister of the deceased Iyyappan. Both the accused are well known to them. The deceased and one Pandi Kumar who was doing joint finance business with A-1, were friends. A-1 and Pandi Kumar had strained relationship, and they were rather inimical to each other in their finance business. One year prior to the occurrence, there was a crime of attempt to murder committed by the deceased along with two others in respect of which a case came to be registered, and the deceased along with others was arrested and kept in judicial custody. After the custody for 45 days, the deceased came out on bail. Entertaining fear for A-1, he was shifting the residence often. (b) While the matter stood thus, on 27.7.2009, the deceased accompanied by P.Ws.1 to 3, went to the house of one Kousalya in order to enquire the death of her son who died in an accident. The mechanic shop of one Babu called Passion Bike, is situated just in front of that house. P.W.4 was an employee working there. At about 2.45 P.M., when all of them went over there, A-1 and A-2 came there in a two wheeler, and A-1 drove the same while A-2 was a pillion rider. When they reached the spot, both of them got down, and there was some wordy altercation. Then A-1 took a hammer which was in the shop of Babu, and attacked Iyyappan on his head. A-1 was having only three fingers in the right hand. While the hammer fell down, A-2 immediately took the same and attacked him on different parts of the body. The occurrence was witnessed not only by P.Ws.1 to 3, but also by P.W.4, who was actually working in the shop. When the crowd gathered, the accused fled away from the place of occurrence. (c) P.W.4 informed to his employer Babu who, in turn, reached the spot. On the way, P.W.9, the Head Constable, who was on duty, came to know about the occurrence, and he immediately rushed to the spot and took the severely injured to the hospital. P.W.7, the Doctor, declared him dead, and the accident register copy is marked as Ex.P6. (d) On receipt of the intimation, P.W.15, the Inspector of Police of that Circle, proceeded to the Government General Hospital, and recorded the statement of P.W.1 which is marked as Ex.P1. On the strength of Ex.P1, he registered a case in Crime No.957 of 2009 under Sections 341 and 302 of IPC. The printed FIR, Ex.P20, was despatched to the Court. Thereafter, he took up investigation, proceeded to the spot, made an inspection and prepared an observation mahazar, Ex.P21, and also a rough sketch, Ex.P22. The Photographer, P.W.6, took the photographs of the place of occurrence and also of the dead body. M.O.3 series are the photographs. Thereafter, the Investigator proceeded to the mortuary where he conducted inquest on the dead body of Iyyappan in the presence of witnesses and panchayatdars and prepared an inquest report, Ex.P24. (e) The dead body of Iyyappan was subjected to postmortem by P.W.13, the Tutor in Forensic Medicine, Madras Medical College, on the requisition given by the Investigator. The Doctor has given opinion in Ex.P16, the postmortem certificate, that the deceased https://hcservices.ecourts.gov.in/hcservices/ would appear to have died of effects of head injury. (f) Pending investigation, both the accused were arrested on 28.7.2009, when they came forward to give confessional statements which were recorded in the presence of witnesses. Following the same, M.O.2, motorbike, and M.Os.8 to 11, shirts and pants respectively, were recovered under a cover of respective mahazars, on production by the accused. Both the accused were sent for judicial remand. (g) P.Ws.1 to 4 and one Babu along with P.W.5 were actually produced before the XIX Metropolitan Magistrate for the purpose of recording their statements under Sec.164 Cr.P.C. Accordingly, they were recorded. The same are marked as Exs.P2 to P5, P8 and P9 respectively. All the material objects were subjected to chemical analysis. Ex.P12 is the biological report. On completion of the investigation, the Investigator filed the final report. 4.The case was committed to Court of Session, and necessary charges were framed. In order to substantiate the charges, the prosecution marched 15 witnesses and also relied on 33 exhibits and 11 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. On their side, D.Ws.1 and 2 were examined, and 8 documents were marked. On completion of the evidence on both sides, 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 and awarded the above punishment. Hence these appeals have arisen before this Court. 5.Advancing arguments on behalf of the appellants, the learned Counsel would submit that in the instant case, the prosecution came out with the story that the occurrence has taken place at about 2.45 P.M. On 27.7.2009, just in front of a mechanic shop; that P.Ws.1 to 4 are shown as eyewitnesses; that all the eyewitnesses marched before the trial Court, could not have seen the occurrence at all; that admittedly, the occurrence has taken place not only in front of the shop of one Babu, who was not examined, but also in front of the house of one Kousalya, the Sub Inspector of Police, whose son met with an accident and died, and the funeral ceremony was going on that day; that it would be quite clear that number of persons were inside and outside the house at that time; that under the circumstances, such an occurrence could not have happened as put forth by the prosecution; that as far as P.W.3 is concerned, her name does not find place either in Ex.P1 or in the FIR, and thus the presence of P.W.3 at the place of occurrence was thoroughly ruled out; that as far as P.Ws.1 and 2 are concerned, they could not have seen the occurrence at all; that according to P.W.9, the Head Constable, he got information through a boy in the street when he was on his way, and further he proceeded to the spot, and it was he who actually took the injured in an auto to the Government General Hospital; that according to P.Ws.1 to 3, even after seeing the occurrence, they did not even go nearby to help him or they did not raise any alarm, and because of fear, they ran from the place of occurrence since they were criminally intimidated, and after some time, within five minutes, they came https://hcservices.ecourts.gov.in/hcservices/ back to the place; but, the dead body of the deceased was not found therein; that in such circumstances, the evidence of P.W.9 that he went to the spot and it was he who took the deceased in an auto would clearly belie the evidence of P.Ws.1 to 3; that from the evidence of P.W.7, the Doctor, who declared him dead, it would be quite clear that the deceased was taken to the hospital by the Head Constable, P.W.9; that P.W.9 has informed to the Doctor, as could be seen from the contents of Ex.P6, the accident register copy, that the deceased was unknown, and unknown persons have attacked him with uruttukattai, and thus it would be quite clear that if really P.W.9 was at the spot and took him to the hospital in the auto, he would have been informed by P.W.4 or his owner Babu who were all the assailants, but it was not done so; that the other circumstances are that it was P.W.9 who took the deceased in the auto to the hospital and admitted him, and at the time of admission, he was declared by the Doctor as dead; and that it would be quite clear that P.Ws.1 to 3 could not have been in the place of occurrence at all. 6.Added further the learned Counsel that P.W.4 was actually an employee in the mechanic shop; that the said shop was actually owned by one Babu; that according to P.W.4, it was he who informed his employer Babu, and in turn Babu has informed to the police station; that it would be clearly indicative of the fact that only on the information of Babu, the Police Personnel came to the spot; that according to the evidence of P.W.4, after the information was given, the police people came over there, and thereafter, the severely injured was taken in the auto; that all would clearly indicate that P.W.9 could have come to the place only on the intimation given by the employer Babu to the police station; that added circumstance is the contents of Ex.D1; that a perusal of Ex.D1 would clearly indicate that originally a Constable namely HC 13336 was deputed; but it has been interpolated as HC 3486; that this would clearly be indicative of the fact that it has been manipulated as if P.W.9 was deputed to the spot; that however, if P.W.9 has really gone to the spot, he would have been informed either by P.W.4 or by his employer Babu who were the assailants; but on the contrary, P.W.9 has given information to the Doctor that the assailants were unknown; that apart from that, the deceased was also unknown; and that all would be indicative of the fact that P.Ws.1 to 3 could not have been in the place of occurrence at all. 7.The learned Counsel would further submit that for the reasons best known to the prosecution, the said Babu, the employer of the shop, who gave information to the police through telephone, was not examined though he was actually examined and his statement was recorded by the Magistrate under Sec.164 of Cr.P.C.; that equally, the said Kousalya whose house is situated opposite to the shop and in whose house, the condolence ceremony was going on, was also not examined; that if really P.Ws.1 to 3 along with the deceased had gone over there for making enquiry of the death of the son of Kousalya, naturally one would expect Kousalya to be examined, but she was neither shown as a witness nor examined before the Court; that all would clearly indicate that P.Ws.1 to 3 should have come to the spot only thereafter, and thus the evidence of P.Ws.1 to 3 have got to be eschewed. https://hcservices.ecourts.gov.in/hcservices/ 8.Added further the learned Counsel commenting upon the evidence of P.W.4, that from the evidence of the other witnesses, the shop was kept closed that day; that even P.W.4 had not worked that day, and thus the presence of P.W.4 at that point of time and at the place of occurrence was highly doubtful. 9.It is further contended by the learned Counsel that if really P.W.4 was at the spot, and he gave information to his employer Babu, and Babu gave information to P.W.9, naturally the names of the assailants could have been mentioned or made known to P.W.9; but, he has stated to the Doctor that unknown persons were the assailants; and that it would cast a doubt whether P.W.4 could have been in the place of occurrence at all. 10.Added further the learned Counsel that insofar as the complaint, Ex.P1, and the corresponding FIR, it is highly doubtful; that according to P.W.1, he gave the intimation to the Head Constable who recorded the same; but, the Investigator would claim that he gave the information in the presence of the Head Constable at the hospital, and the Head Constable recorded the same; but, the FIR would clearly read that it was P.W.15, the Inspector of Police, who recorded the same; and that all would throw a doubt whether Ex.P1 could have come into existence as put forth by the prosecution. 11.The learned Counsel would further submit that in the instant case, the investigation that was done by P.W.15, was thoroughly perfunctory; and that in every aspect of the matter, it has not been properly done. 12.Pointing to the recovery of the material objects alleged to have been produced by the accused persons, following the confessional statements, the learned Counsel would further add that the confessional statements were actually not marked before the trial Court, and hence they lose the evidentiary value; that under the circumstances, the recovery of the weapon of crime and the other material objects should not be given any importance in the case; that apart from that, the medical opinion canvassed through the postmortem Doctor and the contents of the postmortem certificate, was in support of the defence theory that the deceased was actually attacked by a blunt weapon like wooden-log, and not by the hammer as put forth by the prosecution, and hence the prosecution could not fix the correct assailants; that in view of the previous enmity between the appellants/accused and the deceased, both the accused have been roped in, and it was a false case. 13.Pointing to the inquest report, marked as Ex.P24, the learned Counsel would urge that the dead body of Iyyappan was last seen by P.W.1; that it would be quite indicative of the fact that no other eyewitnesses mentioned and produced before the trial Court, have actually seen him alive; that it also ruled out the possibility of the presence of P.Ws.2 to 4; that the trial Judge without appreciation of the evidence produced and in particular, the evidence adduced by the defence, has entered a judgment of https://hcservices.ecourts.gov.in/hcservices/ conviction, and hence it has got to be set aside by this Court. 14.The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made. 15.It is not in controversy that in an incident that had taken place at about 2.45 P.M. On 27.7.2009, at the place of occurrence, one Iyyappan met his death. The dead body was taken to the Government Hospital, and after recording the accident register, Ex.P6, P.W.7, the Doctor, has declared him dead. Following the inquest made by P.W.15, the Inspector of Police, and the preparation of the inquest report, marked as Ex.P24, the dead body was subjected to postmortem by P.W.13, the Doctor, who has given a categorical 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 effects of head injury. Thus the prosecution was able to establish the fact that Iyyappan died out of homicidal violence. 16.In order to substantiate that A-1 and A-2 have committed the crime of murder, the prosecution marched P.Ws.1 to 4 as eyewitnesses apart from adducing other pieces of evidence. Admittedly, P.W.1 is the elder brother; P.W.2 is the brother-in-law and P.W.3 is the sister of the deceased. The Court made a thorough analysis of the evidence. P.Ws.1 to 3 in one voice, have stated that all of them went to the house of one Kousalya which is situated opposite to Passion Bike Mechanic Shop of one Babu, to enquire about the death of her son; that at about 2.45 P.M. A-1 and A-2 came in a two wheeler marked as M.O.2; that A-1 was riding the same while A-2 was a pillion rider; that immediately they came to the spot; that there was a wordy altercation; that A-1 took a hammer from the nearby mechanic shop and attacked him; that since one of his fingers in the right hand was originally amputated, the hammer fell down; and that A-2 took the same and attacked the deceased. Apart from the above witnesses, P.W.4 who is an employee in the said mechanic shop, has given evidence about the incident. The evidence of P.Ws.1 to 3 if viewed from the other circumstances, it is highly doubtful whether they could have seen the occurrence at all. 17.According to P.Ws.1 to 3, when they went to the place along with the deceased, they were nearby the house where the funeral ceremony was going on, and at that time, A-1 and A-2 came there, and both of them attacked the deceased, and the deceased fell down, and due to the grip of fear, they ran away from the place, and within a short span of five minutes, they came back; but they did not see the body and it was removed. The evidence of these witnesses cannot be accepted for the following reasons. If really all the witnesses have gone together along with the deceased, and in particular, when P.Ws.1 and 2 were male members, one would expect them to go to his rescue, but they did not do so. If really such an occurrence has taken place, the natural conduct of P.Ws.1 and 2 could have been to take him immediately to the hospital for giving treatment; but they have not done so. On the other hand, according to P.W.9, the Head Constable, when he was on his other https://hcservices.ecourts.gov.in/hcservices/ duty, he was informed by a small boy that such an occurrence has taken place, and he rushed to the spot, and he found the injured lying on the ground. Contrarily, P.W.4, who was employed in the Passion Bike Mechanic Shop of Babu has deposed that immediately after seeing the occurrence, he informed his employer Babu; that in turn, his employer Babu informed to the police station, and thereupon, the police people came over there and sent the severely injured Iyyappan to the Government General Hospital. From the evidence of P.W.4, it would be quite clear that only after seeing the occurrence, he informed his employer Babu, and it was Babu who informed to the police, and thereafter only, the police officials came to the spot. Thus it would be quite clear that P.Ws.1 to 3 if really they had been at the place of occurrence, could have either gone to the rescue or informed to the police or taken him to the hospital, but they have not done so. All would clearly be indicative of the fact that P.Ws.1 to 3 could not have been in the place of occurrence at all. It was P.W.9 who took him to the hospital where the Doctor, P.W.7, declared him dead. It is true that in Ex.P6, the accident register copy, it is stated that unknown assailants have actually attacked him, and the deceased was also unknown. At this juncture, the learned Counsel for the appellants pointing to this, would make an attempt to cast a doubt on the evidence of P.W.4. This Court is unable to agree with the learned Counsel for the reason that P.W.9 when he went to the spot along with other police officials, took an auto, placed him inside and took him to the hospital. At this juncture, it is pertinent to point out that neither P.W.9, the Head Constable, nor Babu, the owner of the shop, was an eyewitness. P.W.4 was the eyewitness. There is nothing to indicate that the Head Constable or the police officials went over there, enquired P.W.4 and got the information who were the assailants. In such circumstances, this Court is of the considered opinion that no evidentiary value could be attached to the statement of P.W.9 which was made to the Doctor as found in Ex.P6, the accident register copy. 18.It remains to be stated that the prosecution to its advantage had the evidence of P.W.4. According to P.W.4, he was employed in the shop, and at that time, he was also available, and A-1 and A-2 came there, and there was a wordy altercation, and both of them got down from the two wheeler, and it was A-1 who took the hammer from the nearby mechanic shop and attacked him, and when it fell down, A-2 took the same and attacked him. As far as the evidence of P.W.4 is concerned, at the time of cross-examination, not even one worth mentioning point was brought to disturb the evidence. Thus, it can be well stated that the evidence of P.W.4 remained unshaken. It is true that the evidence of P.Ws.1 to 3 is highly doubtful for the above reasons. But the evidence of P.W.4 inspired the confidence of the Court. So far as P.W.4 is concerned, nothing is found to disbelieve or discard his testimony. 19.As regards Ex.P1, the complaint, to the extent of setting criminal law in motion and the FIR coming into existence, it could be acted upon. Who recorded Ex.P1, there are minor discrepancies. But P.Ws.1 and 15 have categorically stated that P.W.1 is the author of Ex.P1, and it was the Head Constable who wrote it. Under the circumstances, the same, in the considered opinion of the https://hcservices.ecourts.gov.in/hcservices/ Court, cannot be given much weight to tilt the balance in favour of the accused. P.W.4 was examined on the day, and his statement has actually reached the Court in a day or two. At this juncture, the learned Counsel for the appellants brought to the notice of the Court that in the inquest report, the name of P.W.4 is not mentioned, but the name of P.W.1 alone is mentioned as last seen the deceased alive before the occurrence, and this would clearly eschew the evidence of P.Ws.2 and 3. Merely because the name of P.W.4 is not mentioned in the inquest report, it cannot be stated that P.W.4 has not seen the occurrence at all. P.W.4 was an independent witness. There is nothing to indicate that he was either inimical to the accused nor in any way interested in the deceased. At this juncture, it is pertinent to point out that law is settled that when a person happened to be in a particular place, and he is able to explain his presence at that time, his evidence cannot be rejected or discarded if the evidence is convincing. In the case on hand, admittedly, P.W.4 was employed in the said Passion Bike Mechanic Shop. According to him, he was available at the time when the occurrence has taken place. He was also an independent witness. This Court is unable to see any reason to disbelieve his evidence. 20.The learned Counsel made much comment upon the medical evidence that it did not corroborate the ocular testimony. This contention cannot also be accepted for the simple reason that