BAIL SLIP The Appellants 1 and 4 herein (viz.) 1. Giri @ Kirankumar, 2.Raja @ Rajendran-Accused 1 and 4 in S.C.No.149/2004 dated 27.9.2004 on the file of the Additional District and Sessions Judge, (Fast Track Court No.II), Coimbatore were directed to be released on bail as per order of this Court dated 9.11.2005 and passed in Crl.M.P.No.8610/2005 in Crl.A.No.1285/2004. (*) IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 18.10.2006 CORAM: THE HONOURABLE MR.JUSTICE P.D.DINAKARAN AND THE HONOURABLE MR.JUSTICE M.THANIKACHALAM Criminal Appeal No.1285 of 2004 1.Giri @ Kiran kumar 2.Kannan 3.Sasi @ Sasikumar 4.Raja @ Rajendran ... Appellants/Accused 1, 2, 3,4 vs. State rep by Inspector of Police, B-3, Kattoor Police Station, Coimbatore. (Cr.No.946/2003) ... Respondent/Complainant Criminal Appeals filed under Section 374 of the Code of Criminal Procedure against the judgment of the learned Additional District and Sessions Judge (FTC II), Coimbatore dated 27.9.2004 in Sessions Case No.149 of 2004. For appellant : Mr.A.Kumaraguru for A1 Mr.Su.Srinivasan for A2 to A4 For Respondent : Mr.N.R.Elango, Additional Public Prosecutor ..... https://hcservices.ecourts.gov.in/hcservices/ JUDGMENT (Delivered by P.D.DINAKARAN,J.) The appellants are the accused in S.C.149 of 2004 on the file of learned Additional District and Sessions Judge (FTC-2), Coimbatore and questioning the correctness of the judgment of conviction and sentence dated 27.9.2004 rendered in the above said sessions case, they have preferred the above appeal. 2. On 17.8.2003 at about 10.15 p.m., at Sri Paranjothi Mariamman Koil Street, V.O.C. Road, Periyar Nagar, exasperated by the utterance of filthy words by the deceased Sardar Ibrahim Batsha in the wordy quarrel between them, of the four accused being friends, while the accused 1 and 4 were catching hold of the deceased Sardar Ibrahim Batsha, the accused 2 and 3 stabbed him with knife causing his instantaneous death and thereby all the accused committed an offence punishable under sections 302 and 302 read with 109 IPC. 3. The prosecution case, in brief, is as under: 3.1. P.W.1 is the brother of the deceased Sardar Ibrahim Batsha. The deceased was employed at Erode. He used to visit P.W.1 once in a fortnight. On 17.8.2003 at 5.00 p.m., the deceased came to P.W.1's house at 8.30 p.m. along with P.W.4 John Batsha and P.W.6 Deena @ Sirajudeen. P.W.1 returned home from workplace at about 8.30 p.m. 3.2. The deceased left home to meet P.W.4 at about 9.00 p.m. Then, the deceased, P.W.2 Abdullah, P.W.3 Anand, P.W.4 John Batsha, P.W.6 Deena @ Sirajudeen and one Senthil were chatting with each other in front of Paranjothi Mariamman temple, of them P.Ws.3 and 6 were talking in filthy language. At that time, the 1st accused Giri, who was crossing them, overheard the words and asked them why they scolded him for which P.W.6 replied that they did not scold him; they spoke among themselves. Then, the 1st accused Giri gazed at them and left the place. 3.3. At about 9.30 p.m., the 1st accused returned along with other three accused and the 3rd accused questioned as to why they scolded the 1st accused for which P.W.3 Anand reiterated that they were talking among themselves and they did not mean the 1st accused. At that time, P.W.7, father of the 1st accused came, pacified them and took the accused party with him. 3.4. Since his brother deceased Sardar did not turn up till 10.45 p.m., P.W.1 went in search of him. Seeing his brother talking with his friends near Paranjothi amman temple, P.W.1 asked the deceased to return home. The deceased narrated to P.W.1 what had https://hcservices.ecourts.gov.in/hcservices/ happened. At that time, all the accused came there. The 4th accused Raja who came armed with a bottle, broke the bottle and shouted at the deceased and witnesses as to why they were wrangling. Then P.Ws.1 to 3 got restrained themselves, but the deceased Sardar, asking the witnesses not to fear at the accused, stood at that place itself. The witnesses also remained there. Accused 2 and 3 were armed with knives. The 3rd accused told the deceased that he would not leave him alive. The 2nd accused threatened the witnesses that if they came near, he would stab them. Then, when accused 1 and 4 caught hold of the deceased Sardar, accused 2 and 3 stabbed him indiscriminately. The deceased and the witnesses raised alarm and the accused left the place. P.W.1 laid the deceased on his lap. P.W.2 went in search of auto, but in vain. The shirt of P.W.1 (M.O.1) became bloodstained. 3.5. In the meantime, being informed by two persons, P.W.16 Head Constable of Police who was on patrol, visited the scene and also informed the Sub Inspector of Police. On receipt of information through P.W.16, P.W.17 Sub Inspector of Police visited the scene at 11.45 p.m. on 17.8.2003 and recorded Ex.P-1 statement from P.W.1. He registered a case in crime No.946 of 2003 of B-3 Police Station under section 341 and 302 IPC and prepared Ex.P-27 printed first information report. 3.6. P.W.18, Inspector of Police, who took up the investigation, visited the scene at about 1.30 a.m. on 17/18.8.2003 and prepared Ex.P-3 observation mahazar in the presence of P.W.5. He drew Ex.P-28 rough sketch. He seized bloodstained as well as sample of gravel of tar road and pieces of bottle (M.Os.4 to 6). He conducted inquest over the dead body and prepared Ex.P-29 inquest report. At the instance of P.W.18, P.W.13 took photographs (M.O.14 series) of the scene. He sent the dead body for postmortem through P.W.14 Head Constable along with Ex.P-19 requisition. 3.7. P.W.8 doctor, on receipt of requisition Ex.P-19, conducted autopsy over the dead body of the deceased on 18.8.2003 at 10.15 a.m. and found the following injuries: 1. Transversely oblique stab injury of 4 x 1 cms. seen in the front of left side neck. The lower end of the wound is 9 cms. below and left of lower part of middle of chin. Both ends are pointed and margins are regular. The wound passes backward and slightly to the right side, injuring the underlying structures and caused a stab in the left side of the trachea measuring 2.5 cms. in the anterior aspect and 1.5 cms. posteriorly, and also a stab in the oesophagus measuring 1.5 cms. anteriorly and 1 cm. posteriorly, and ending as a point in the pre-vertebral area at the level of lower part of C5 vertebra. Total depth of the wound tract is 4.5 cms. https://hcservices.ecourts.gov.in/hcservices/ 2. Transversely oblique stab wound of 3 x 1 cms. seen on the front of lower part of right side neck. The upper end of the wound is 7.5 cms. below the right mastoid. The wound passes obliquely downwards for a depth of 3.5 cms., and cutting the underlying muscles, vessels, and nerves on the line of the wound. Both ends are pointed and margins are regular. 3. Transversely oblique stab injury of 3.5 x 1 cms. seen over the front of lower part of right side neck. The upper end of the wound is 11 cms. below and just right of middle of the chin. Both ends pointed and margins regular. The wound passes downwards and slightly to the left side, injuring the underlying structures and cutting the lateral aspect of trachea and oesophagus and ending as a point in the para vertebral area at the level of lower part of C6 vertebra. Total length of the wound tract is 4 cms. 4. Vertically oblique stab wound of 2 x 1 cms x 1 cm muscle deep seen on the left side of chest 4 cms. below and left of left nipple. Both ends are pointed and margins are regular. 5. Incised wound of 0.5 x 0.5 cm. seen on the left chest 8 cms. below nipple. 6. Oblique incised wound of 1 x 0.5 cm. seen on the lower part of front of right chest. 7. Transversely oblique stab wound 3 x 1 cms. x 3 cms. muscle deep seen on the upper part of front of right arm 5 cms. below the right shoulder joint. Both ends are pointed and margins are regular. 8. Transversely oblique stab wound of 3 x 1 cms. x 3.5 cms. muscle deep seen on the upper part of right forearm, 4 cms. below the elbow joint. Both ends are pointed and margins are regular. 9.Oblique incised wound of 1 x 0.5 cms seen on the upper part of right forearm 5 cms. below posterior aspect of right elbow joint. 10. Oblique stab wound of 2 x 1 cms. x 1 cm. muscle deep seen on the posterior aspect of right forearm 8 cms. below the elbow joint. Both ends pointed and margins are regular. 11. Transversely oblique stab wound of 2 x 1 cms. x 1.5 cms. muscle deep seen on the inner aspect of left arm 9 cms. above the left elbow. Both ends are pointed and margins are regular. https://hcservices.ecourts.gov.in/hcservices/ 12. Oblique stab wound of 2 x 1 cms. x 1 cm. muscle deep seen on the left forearm 5 cms. below the left elbow joint. Ends are pointed, margins regular. 13. Oblique stab wound of 3 x 1 cms. x 1 cm. muscle deep seen on the left forearm 7 cms. below the left elbow joint. Ends are pointed, margins regular. 14. Transversely oblique stab injury of 4 x 1 cms. x 5 cms. muscle deep seen on the upper part of posterior aspect of right thigh. Both ends are pointed and margins are regular. 15. Transversely oblique stab injury of 2 x 1 cms. x 3.5 cms. muscle deep seen over posterior aspect of right thigh 5 cms. below the injury No.14. Both ends are pointed and margins are regular. 16. Oblique stab wound 3 x 1 cms. x 5 cms. muscle deep seen on the posterior aspect of right thigh 6 cms. below injury No.15. Both ends pointed and margins are regular. 17. Oblique cut injury of 6 x 2.5 cms. x 2.5 cms. muscle deep seen on the posterior aspect of upper part of right leg, 9 cms. below the knee joint. Both edges are regular. P.W.8 was of the opinion that the deceased would appear to have died due to stab injuries. He issued Ex.P-5 postmortem report. 3.8. P.W.18 seized the shirt M.O.15, pant M.O.16 and jetty M.O.17 produced by P.W.14 Head Constable after postmortem. On 18.8.2003 at 10.30 a.m., he arrested the 1st accused in the presence of P.W.9 and others and recorded his statement, the admissible portion of which is Ex.P-6, as per which he produced M.O.7 shirt and M.O.8 pant. 3.9. P.W.18 gave requisition for police custody of accused 2 to 4 who had surrendered before the Judicial Magistrate's Court, Mettupalayam and took their custody. He recorded the statements given by accused 2 to 4, in the presence of P.W.12, the admissible portion of which are Exs.P-13 to 15. He seized the bloodstained dresses and weapons produced by accused 2 to 4. He also gave requisition to record statements of P.Ws.1 to 3. 3.10. P.W.10, the then Judicial Magistrate No.4, Coimbatore recorded the statements of P.Ws.1 to 3, viz., Exs.P-10 to 12. He took steps to collect and send the blood samples of accused for chemical analysis. P.W.11 doctor made arrangements to take blood samples of the accused. P.W.15 forwarded the same to the Forensic https://hcservices.ecourts.gov.in/hcservices/ Science Laboratory, Coimbatore. Ex.P-24 is the chemical analyst's report; Ex.P-25 is the serologist's report; and Ex.P-26 is the viscera report. 3.11. P.W.18 examined witnesses and recorded their statements. After completing the investigation, P.W.18 filed the final report on 3.11.2003. 3.12. Since the accused denied the charges framed, they were tried in S.C.No.149 of 2004 on the file of learned trial Judge. On behalf of the prosecution, P.Ws.1 to 18 were examined and Exs.P-1 to P-29 and material objects M.Os.1 to 17 were marked. Though P.Ws.3 and 6 were examined to speak about the occurrence and P.W.7 was examined to prove the earlier incident, they turned hostile. 4. When the accused were questioned under Section 313 Cr.P.C. in respect of the incriminating circumstances found against them, they denied the same. The accused neither examined any witness, nor marked any document on their side. 5. On consideration of the oral and documentary evidence available on record, the learned Sessions Judge convicted accused 2 and 3 under section 302 IPC and accused 1 and 4 under section 302 read with 109 IPC and sentenced each of them to undergo imprisonment for life with a fine of Rs.5,000/- and default sentence. Aggrieved by the above conviction and sentence, all the accused have preferred this appeal. 6. Learned counsel appearing for the appellants/accused submitted that only on the basis of information furnished by two persons, P.W.16 Head Constable who was on patrol, informed the Sub Inspector of Police, P.W.17 who recorded Ex.P-1 from P.W.1 and that P.W.2 claimed that P.W.3 informed the police over phone and hence, the first information is not available in this case. According to them, the presence of eye-witnesses is doubtful as there are contradictions in their evidence. It is their further submission that P.W.1 could not have been present in the scene of occurrence, because had he been present, he would have tried to save the deceased. They have also submitted that there was no reason for the accused to kill the deceased, nor was there any provocation and only because the accused happen to belong to Vishwa Hind Parishad, they have been roped in the crime. They have contended that in Ex.P-3 observation mahazar there is no information regarding the broken bottle pieces. 7. On the other hand, the learned Additional Public Prosecutor submitted that the evidence of eye-witnesses are trustworthy and remains unshaken in cross examination. According to him, the broken glass pieces were recovered from the scene under mahazar. He further https://hcservices.ecourts.gov.in/hcservices/ submitted that the first information report and the recovery of weapons and bloodstained dresses from the accused prove that the accused are involved in the crime and and hence, the trial Court has correctly convicted and sentenced the accused and there is no need to interfere with the judgment of the trial court. 8. The point for consideration in the appeal is whether the prosecution has brought home the guilt of the accused beyond all reasonable doubts. 9. We have given our careful consideration to the submissions made by the learned counsel on either side and also leafed through the records. 10.1. It is not in dispute that the deceased Sardar, brother of P.W.1, was working at Erode under P.W.4 John Batsha and visited P.W.1's house on the date of occurrence. It is also not in dispute that he left home at about 9.00 p.m., on the fateful day and he was talking with P.Ws.2, 3, 4 and 6 near Paranjothi amman temple in V.O.C. Street. It is the prosecution version that when they were talking with each other, P.Ws.3 and 6 used filthy language which perturbed the 1st accused Giri, who was crossing them at that time, and thinking that the words were uttered against him, the 1st accused questioned them for which P.W.3 replied to the 1st accused that they did not mean him. Then, the 1st accused gazed at them and left the place. 10.2. After sometime, the 1st accused came along with other accused and again questioned the witness party as to why they were making a mess in that area and at that time, P.W.7, the father of 1st accused came and pacified them. 10.3. The prosecution described the above incident as motive for the occurrence in which the deceased was done to death. Both the persons who are alleged to have used filthy words, viz., P.Ws.3 and 6 turned hostile, but their evidence are helpful to the extent that P.Ws.2 and 4 as well as the deceased had a chat just prior to the occurrence. P.Ws.3 and 6 speak about the presence of P.Ws.1, P.W.2 and P.W.4 at the scene. It is quite natural that P.W.7, though examined to speak about the above incident, being the father of 1st accused, would not support the prosecution. 10.4. It is evident from P.W.1 that he went in search of the deceased brother who informed him of the above incident and when he asked the deceased to return home, the accused came there and the occurrence took place. The above evidence of P.W.1 stands corroborated by P.Ws.2 and 4. Further, P.W.1 in his cross examination has stated that for the past two years, his deceased brother and accused 2 and 3 were not in talking terms. P.W.2 in his https://hcservices.ecourts.gov.in/hcservices/ cross, has stated that he knew the 1st accused for the past five or six years. Similarly, it is the claim of P.W.4 that he knew the 1st accused from his childhood. From the above evidence, it is clear that there is no good relationship between the accused and the witness party and the 1st accused being enraged at the utterance of filthy words by P.Ws.3 and 6, questioned and gazed at the witness party and immediately returned along with other accused and asked as to why they were making trouble in the area and left the place, of course, being pacified by P.W.7, who turned hostile and thereafter, the accused came and attacked the deceased. 10.5. Though the learned counsel for the accused raised a defence that there was no reason for the accused to kill the deceased, nor was there any provocation and only because the accused happen to belong to Vishwa Hind Parishad, they have been roped in the crime, the evidence of prosecution witnesses prove that the accused party was not in talking terms with witness party and the 1st accused, thinking that he was scolded by the witnesses, gazed at witness party. If the incident ended at that stage, learned counsel for the accused would have been correct that there was no reason for the accused to commit the crime, but, on the other hand, the accused came again and threatened the witness party and left and thereafter the accused came armed with weapons and attacked the deceased. The P.Ws.1 and 2 are categorical in saying that accused 2 and 3 came armed with knives and the 4th accused was armed with a broken bottle at the time of occurrence. Hence, the accused came to the scene with the intention to commit crime. 10.6. Further, motive for doing a criminal act is generally a difficult area for the prosecution and it is not possible for the prosecution in each and every case to unravel the full dimension of the mental disposition of an offender towards the person whom he offended. Motive is the emotion which impels a man to do a particular act. While appreciating the evidence Courts must keep in mind the realities of life. The Courts cannot ignore the erosion in the values of human life which have become a common feature of the present time people who are not afraid now in committing heinous crimes like murder, even on small and trivial matters [vide: Anil v. State of U.P. 2002 Crl.L.J.2694 at 2702]. 10.7. In the instant case, immediately prior to the occurrence the accused were enraged at the utterance of filthy words by the witness party allegedly against the 1st accused. After questioning the witness party about this, the accused left the place and again came armed with weapons and attacked the deceased. Though a suggestion was put to P.W.2 to the effect that since the accused happen to be members of Vishwa Hind Parishad, they have been roped in the crime, the same was denied by him and there is no evidence in support of such a defence. On the other hand, the evidence of the https://hcservices.ecourts.gov.in/hcservices/ above prosecution witnesses make it clear that the accused being enraged at the utterance of filthy words, attacked the deceased and to this extent, the prosecution has proved its case. 11. It is the claim of P.Ws.1 and 2 that accused 1 and 4 caught hold of the deceased when accused 2 and 3 cut him with knives indiscriminately leading to his instantaneous death. The medical evidence of P.W.8 doctor coupled with Ex.P-5 postmortem certificate shows that the deceased received as many as 17 injuries and most of them are stab injuries. P.W.8 doctor was of the opinion that the deceased would appear to have died due to the stab injuries. From the medical evidence it is clear that the deceased was done to death in a cruel manner. 12.1. It is the evidence of P.Ws.1 and 2 that the accused came there and among them, accused 2 and 3 were armed with knives and the 4th accused keeping a broken bottle in his hand questioned the deceased and others as to why they were causing trouble in that area. It is the evidence of P.W.1 that on seeing the accused, himself, P.W.2 and P.W.3 were about to leave the place, but the deceased asked them not to leave the place and he remained there and the 3rd accused, showing the knife he was having told that he would kill the deceased and the 2nd accused threatened the witnesses with knife and in the meantime, accused 1 and 4 caught hold of the deceased and accused 2 and 3 stabbed him indiscriminately with knives (M.Os.2 and 3) and left the place. P.W.1 has also stated that he scurried towards the deceased to hold him, but before that, he fell down and he kept the deceased on his lap and P.W.2 went in search of auto, but in vain. 12.2. The evidence of P.W.1 stands corroborated by P.W.2 who has categorically stated that accused 1 and 4 caught hold of the deceased when accused 2 and 3 stabbed him. P.Ws.1 and 2 in their statements under section 164 Cr.P.C. have also stated the same thing. P.W.4, who had accompanied the deceased and others when the earlier incident took place and left the place, being informed by his parents, immediately visited the scene and saw the deceased lying dead. It is the claim of the witnesses that at the time of occurrence, the street light was burning. The evidence of P.W.1, being brother and P.W.2, being friend of the deceased, though claimed to be interested witnesses, are cogent and remain unshaken in cross-examination. We therefore hold that the prosecution proved that when accused 1 and 4 caught hold of the deceased, the 2nd and 3rd accused stabbed him with knives and it is the accused who committed the crime. 13.1. The submission of the learned counsel for the accused is that the presence of eye-witnesses is doubtful as there are contradictions in their evidence. According to the learned counsel, had P.W.1 been present, he would have tried to save the deceased and https://hcservices.ecourts.gov.in/hcservices/ P.W.2 claimed that after occurrence, they did not give any first aid to the deceased and hence, the prosecution version is not believable. 13.2. It is evident from P.W.1 that after the deceased was stabbed, P.W.1 went near him to save him, but the deceased fell down and P.W.1 put him on his lap and the deceased died and his shirt became bloodstained and P.W.2 went in search of auto. The investigating officer recovered the bloodstained shirt (M.O.1) worn by P.W.1 under mahazar. The serologist's report Ex.P-25 shows that M.O.1 shirt, M.Os.2 and 3 weapons and the dresses worn by and recovered from the accused all contain same group of human blood (B- Group). From this, it is clear that P.W.1 was present at the time of occurrence and the accused inflicted the injuries on the deceased with M.Os.2 and 3. 13.3. It is the claim of P.Ws.1 and 2 that P.W.2 went in search of auto immediately after the occurrence and the deceased died immediately and hence, there might not have been any necessity to give first aid to the deceased. As rightly pointed out by the learned Additional Public Prosecutor, the evidence of eye-witnesses are trustworthy and the above submission of learned