IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 4-11-2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH CRL.A.No.491 of 2009 1.Gunasekaran 2.Nagaraj @ Nagarajan 3.Jayaraman 4.Sudhakar @ Sudhakaran .. Appellants vs State rep. By The Inspector of Police Town Police Station Tiruvarur Crime No.461/2006 .. Respondent Criminal appeal preferred under Sec.374(2) of the Code of Criminal Procedure against the judgment of the District and Sessions Judge, Tiruvarur, made in S.C.No.24 of 2008 dated 29.7.2009. For Appellants : Mr.R.Shunmugasundaram Senior Counsel for Mr.S.Saravanakumar For Respondent : Mr.Babu Muthu Meeran Additional Public Prosecutor JUDGMENT (Judgment of the Court was delivered by M.CHOCKALINGAM, J.) Challenge is made to a judgment of the Sessions Division, Tiruvarur, made in S.C.No.24 of 2008 whereby the appellants four in number, stood charged under Sections 341 and 302 of IPC, tried, found guilty under Sections 341 and 302 read with 34 of IPC and awarded two months Simple Imprisonment under Sec.341 IPC and life imprisonment along with a fine of Rs.50000/- and default sentence under Sec.302 read with 34 of IPC. 2.Short facts necessary for the disposal of this appeal can be stated as follows: (a) P.W.1 is the mother of the deceased Murugesan. P.W.4 is the son-in-law of P.W.1. P.W.1 was a resident of Alivalam Village situated about 10 kilometers away from Tiruvarur. She was in the https://hcservices.ecourts.gov.in/hcservices/ practice of taking idlies from her place prepared and selling them in front of the Government Hospital, Tiruvarur. The deceased was an auto driver. On occasions he used to take idlies and sell the same at that place. A-1 was the son of the owner of the canteen who was running the business in front of the said hospital. A-2 to A-4 were employed therein. A-1 to A-4 used to sit in front of the hospital, and they used to tease the ladies who come to the hospital. (b) On the date of occurrence namely 24.12.2006, since P.W.1 fell ill, she did not come to the regular business, and it was being done by the deceased. While he was doing so, at about 11.00 A.M., he found all the accused persons committing eve-teasing. He questioned the same. There was a wordy altercation in which the deceased snatched a mala from A-1 which was being worn by him. Immediately A-1 challenged that he would see to that. P.W.4, who witnessed that incident, phoned over to P.W.1 to come and take the deceased. Thereafter, P.W.4 left for home. (c) P.W.1 on receiving the message, rushed to Tiruvarur by bus. In the meanwhile, the deceased went to the native place; but, he could not find his mother and then came back. At about 3.00 P.M., when P.W.1 came in search of her son to the hospital, she found all the four accused persons armed with veechu aruvals, and it was A-1 who cut the deceased on the head and neck. A-4 cut him on the left abdomen, and A-3 cut him on the chest. A-2 cut the deceased on the neck and left wrist. The same was witnessed by P.W.1 and also by P.Ws.2 and 3. There was a distressing cry. Immediately, all the accused persons left the place of occurrence along with the weapons of crime. The body of Murugesan was taken to the hospital in a serious condition. The Doctor examined and declared him dead. The accident register copy is marked as Ex.P8. (d) P.W.1 proceeded to the respondent police station and gave a complaint, Ex.P1, on the strength of which P.W.11, the Sub Inspector of Police, registered a case in Crime No.461 of 2006 under Sections 341 and 302 of IPC. The printed FIR, Ex.P10, was despatched to the Judicial Magistrate concerned. (e) On receipt of the copy of the FIR, P.W.12, the Inspector of Police, took up investigation, proceeded to the spot, made an inspection and prepared an observation mahazar, Ex.P4, and also a rough sketch, Ex.P11. Then, he recovered from the place of occurrence bloodstained earth, sample earth and also other material objects under a cover of mahazar. The place of occurrence was photographed through P.W.9, the Photographer, and the photos are marked as M.O.7 series. Then the Investigator conducted inquest on the dead body in the presence of witnesses and panchayatdars and prepared an inquest report, Ex.P12. He gave a requisition to the hospital authorities for the purpose of autopsy. (f) P.W.7, the Assistant Civil Surgeon, attached to the Government Hospital, Tiruvarur, on receipt of the said requisition, conducted autopsy on the dead body of Murugesan and has issued a postmortem certificate, Ex.P7, with his opinion that the deceased https://hcservices.ecourts.gov.in/hcservices/ would appear to have died of severe blood loss (haemorrhage) and shock due to injury to vital organ 1) brain with clots of blood. (g) Pending investigation, the Investigating Officer arrested all the accused the next day at about 11.00 A.M. They came forward to give a confessional statement. The same was recorded. A-1 produced four aruvals, marked as M.O.4 series, which were recovered under a cover of mahazar, Ex.P3, in the presence of P.W.5 and another. The accused were taken to the police station, and their bloodstained clothes were recovered. They were sent for judicial remand. All the material objects were sent to the Court along with a requisition for analysis. Accordingly, they were subjected to chemical analysis as a result of which Ex.P13, the chemical analyst's report, and Ex.P14, the serologist's report, were received by the Court. On completion of investigation, the Investigator filed the final report. 3.The case was committed to Court of Session, and necessary charges were framed. In order to substantiate the charges, the prosecution examined 12 witnesses and also relied on 14 exhibits and 20 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 and took the view that the prosecution has proved the case beyond reasonable doubt and hence found them guilty and awarded the punishment as referred to above. Hence this appeal at the instance of the appellants. 4.Advancing arguments on behalf of the appellants the learned Senior Counsel Mr.R.Shunmugasundaram would submit that the case of the prosecution was that the occurrence has taken place at about 3.00 P.M. On 24.12.2006, in front of the Government Hospital, Tiruvarur; that the prosecution has examined P.W.1 and other two witnesses as eyewitnesses; but P.Ws.2 and 3 have not supported the prosecution; that under the circumstances, what was available for the prosecution was that of P.W.1; that P.W.1 was actually the mother of the deceased, and hence she was interested; that admittedly, during the relevant time, she was living at Alivalam Village situated 10 to 13 kilometers away from Tiruvarur, the place of occurrence; that she was actually a chance witness; that she could not have seen the occurrence at all; that at one stage she would say that she has stopped her business before one month, and at another stage she would say that she was doing business till the time; that under the circumstances, as regards carrying on the business, there was an inconsistent version given by her; that the case of the prosecution was that on the date of occurrence at about 11.00 A.M., there was an incident between the accused on the one side and the deceased on the other, and the same was witnessed by P.W.4, and immediately, P.W.4 informed to P.W.1 to come to Tiruvarur and take her son, and that was through a phone message; that P.W.1 has stated that she has received the message; but, P.W.4 would say that he gave the message and it was not received by P.W.1, but by her daughter-in-law; and that there is https://hcservices.ecourts.gov.in/hcservices/ nothing to indicate that she would have been present at the spot; that the evidence of P.W.1 could not be believed for the simple reason that when she witnessed the occurrence in which her son was being attacked by four persons with aruvals and they inflicted cut injuries, even after that she did not come near the body or make any distressing cry; and that this conduct of P.W.1 would clearly indicate that she could not have been present at the spot. 5.Added further the learned Senior Counsel that had it been true that P.W.1 was present at the place of occurrence, she would have taken the body of her son inside the hospital; but, Ex.P8, the accident register copy, and Ex.P9, the information, would clearly indicate that it was one Murugan who brought him and not P.W.1; that it would be indicative of the fact that she could not have been present at all; that according to the prosecution, the occurrence has taken place at about 3.00 P.M.; but, the case was registered by the respondent police at about 4.00 P.M. and the FIR has reached the Judicial Magistrate at about 11.30 P.M. night; that there was a delay of nearly 8 hours; that it would be quite clear that the case should have been registered subsequently; that further the prosecution had no explanation to offer for the delay that has occurred; that all would indicate that P.W.1 after receiving the message that her son was murdered, should have come from the native place and should have seen her son's dead body; that as far as P.W.4 was concerned, his evidence was not useful to the prosecution case; that it is also pertinent to point out that even P.W.8, the Head Constable, attached to the Out-Post Police Station at Tiruvarur Government Hospital, has categorically stated that on seeing the occurrence, which took place 200 feet away from the police station, he immediately went to the hospital; that he never deposed that he found P.W.1 there; and that this would also clearly indicate that P.W.1 could not have been present. 6.The learned Senior Counsel would add that though the Investigator claimed that the statement of P.W.1 was recorded the very day under Sec.161 Cr.P.C., it has reached the Court at the night hours of the next day; that it is also claimed by the Investigator that all the four accused were actually arrested next morning at about 11.00 A.M. and all the aruvals were recovered from them; that it was a joint confession; that it was A-1 who, according to the Investigator, produced all the aruvals, M.O.4 series; that according to the Investigator, P.W.5 was a witness for the alleged confession and recovery of M.O.4 series; that if to be so, there could not have been taking P.W.5 to the police station; but the Investigator claimed that after the accused were taken to the police station, their bloodstained clothes were recovered from them, and it was sent to the Court; but, there was no recovery mahazar or Form 95; that nothing was produced before the Court; that the scientific evidence produced by the prosecution through chemical analyst's report and serologist's report would be of no use to the prosecution; that further, in the instant case, when P.W.1's evidence was shrouded with all doubts and confession and recovery became shaky, it would not be safe to convict the accused; but the trial Court has taken an erroneous view, and hence, the judgment of the trial Court has got to be set aside and the appellants be acquitted. https://hcservices.ecourts.gov.in/hcservices/ 7.This Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made. 8.It is not in controversy that Murugesan, the son of P.W.1, was done to death in an incident that had taken place at 3.00 P.M. on 24.12.2006 in front of the Government Hospital, Tiruvarur. Following the registration of the case under Sec.302 of IPC by P.W.11, the Sub Inspector of Police of the respondent police station, the case was taken up for investigation by P.W.12, the Inspector of Police. Following the inquest made and preparation of the inquest report, the dead body was subjected to postmortem by P.W.7, the Doctor, pursuant to the requisition given by the Investigator, and he has given a categorical opinion as a witness before the Court and also through the contents of the postmortem certificate that he died of severe blood loss (haemorrhage) and shock due to injury to vital organ namely brain with clots of blood. Under the circumstances, the trial Court felt no impediment in recording so and rightly too. 9.In order to substantiate that the accused persons armed with deadly weapons attacked the deceased and caused his death instantaneously, the prosecution marched three witnesses as eyewitnesses. P.Ws.2 and 3 have turned hostile. Hence, it cannot be commented that the prosecution had not examined independent witnesses. It is true that the prosecution had the sole testimony of P.W.1 who is happened to be the mother the deceased. It is well settled proposition of law that merely because of the relationship of the witnesses to the deceased, their evidence cannot be rejected; but, before acceptance, careful scrutiny test must be applied. Law of evidence does not require number of witnesses, but would expect quality of evidence. In the instant case, though P.W.1 was the solitary evidence, this Court is of the considered opinion that it inspired the confidence of the Court since it is cogent and acceptable. 10.According to P.W.1, she was carrying on the idly business just before the Government Hospital, Tiruvarur, every day; but, on the date of occurrence, she could not come due to her illness, and at about 11.00 A.M., she received a message from P.W.4, her son-in-law, that there was a quarrel between the accused and the deceased, and hence she can come and take him back. It is true that this message was not received by her, but by her daughter-in-law. P.W.4 has categorically spoken to the fact that he gave the message. This part of the evidence remained unshaken since there was no cross- examination to that point from P.W.4. After receiving the information, according to P.W.1, she rushed to Tiruvarur through a bus, and when she came to the spot, she was able to see the occurrence. She has clearly narrated that all the four accused persons were armed with deadly weapons namely aruvals, and when she was witnessing, they attacked him indiscriminately and caused the death. The contention put forth by the learned Senior Counsel for the appellants that since P.W.1 is happened to be the mother of the deceased, her conduct on seeing such an occurrence in which her son https://hcservices.ecourts.gov.in/hcservices/ was being attacked by number of persons with aruvals should be to go nearby or go to the rescue of her son or immediately lift the body; but, she has not done so, cannot be countenanced. In a given situation, when there is an occurrence and that too a heinous crime, the frame of mind would differ from individual to individual. Now, in the instant case, she was an old lady, and she found four persons armed with deadly weapons, and her son was actually being attacked. One can visualize the grip of psychic fear under which she was put at that time. Merely because she has not gone to the rescue of the victim or lifted the body, it cannot be stated that she could not have seen the occurrence. On that ground, her evidence cannot be doubted. 11.It is true that one Murugan had taken the body inside the hospital, and his name is mentioned in Ex.P8, the accident register copy. The fact that the name of P.W.1 does not find place in Ex.P8, the accident register copy, or the information, Ex.P9, did not mean that she has not witnessed the occurrence. It is pertinent to point out that she was living in a place called Alivalam Village, which is situated 10 to 13 kilometers away from Tiruvarur. Now the case was registered within an hour by the respondent police and it was taken up for investigation immediately. It is true that the FIR has reached the Judicial Magistrate at about 11.30 P.M. Admittedly, it was a Sunday. Merely because there was delay in FIR reaching the Judicial Magistrate, the same by itself cannot be a reason to doubt the prosecution case or reject the same. Further even in Ex.P1, the complaint, the entire incident is narrated, and the names of the accused persons are mentioned. It is pertinent to point out that there was actually an incident in the morning hours, and these accused persons were teasing the ladies which was questioned by the deceased. At that time, on coming to know about the same, P.W.4 has intimated to P.W.1. Following the same, the occurrence has taken place in the afternoon. So long as the evidence of P.W.1 is acceptable, there cannot be any impediment in recording a finding as to the guilt of the accused. 12.Apart from the above, in the instant case, the other circumstances, which were fortunately in favour of the prosecution, were arrest of the accused the very next day. The Investigator has arrested all the accused at about 11.00 A.M. on 25.12.2006, and they gave a joint confession. Pursuant to the same, M.O.4 series, aruvals, were actually recovered, and this particular aspect was spoken to by P.W.5 whose evidence remained unshaken despite cross- examination. Hence the recovery of the weapons of crime pursuant to the confessional statement given by the accused persons, in the considered opinion of the Court, would be indicative of the nexus of the crime with the accused. 13.Added circumstance was that all the material objects were actually subjected to chemical analysis out of which two of the weapons were found to be with human blood, and the clothes which were recovered found to be tallying with the blood group. The contention put forth by the learned Senior Counsel for the appellants is that the clothes which were worn by the accused should have been recovered https://hcservices.ecourts.gov.in/hcservices/ in the presence of P.W.5, but not done so, and Form 95 or the recovery mahazar was not produced before the Court, and thus it would be indicative of the irregularity committed by the Investigator at the time of investigation. By this, it cannot be stated that the prosecution should suffer or an injustice has been caused. Under the circumstances, the evidence put forth by the prosecution in the considered opinion of the Court was sufficient to hold that A-1 to A- 4 were involved in the crime, and they attacked him indiscriminately with aruvals and caused his death instantaneously. Hence the act of the accused cannot but be termed only as murder. Unless and until they had got common intention, they could not have been with aruvals before the hospital and could not have attacked the deceased at that time and caused his death. The trial Court was perfectly correct in recording a finding that they have murdered the deceased by sharing the common intention. The judgment of the trial Court has got to be affirmed since there is nothing to interfere with the same either factually or legally. 14.In the result, this criminal appeal fails and the same is dismissed confirming the judgment of the trial Court. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar nsv To: 1.The District and Sessions Judge, Tiruvarur 2.The Inspector of Police Town Police Station Tiruvarur. Crime No.461/2006 3.The Public Prosecutor, High Court, Madras. 4.The Superintendent, Central Prison, Tirucharapally. 5. The District Collector, Thiruvarur 6. The Director General of Police, Santhome. 7. The Section Officer, Criminal Section, High Court, Madras. + 1 cc to Mr.S.Saravanakumar, Advocate, SR 54444. C.A.No.491 of 2009 BV (CO) RH (19.11.09) https://hcservices.ecourts.gov.in/hcservices/