BAIL SLIP --- The Appellant/Accused namely Babu was directed to be released on bail as per order of this Court passed in Crl.M.P.No.3063/03 in Crl.Appeal No.113 of 2003 dated 4.4.2003 on the file of the High Court, Madras. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 18.02.2010 CORAM: THE HONOURABLE MS.JUSTICE R.MALA Crl.A.No.113 of 2003 & Crl.M.P.No.142 of 2008 Babu .. Appellant Vs. State rep. by Deputy Superintendent of Police, Gudiyatham Sub-Division, Gudiyatham, Vellore District. .. Respondent Criminal Appeal against the judgment dated 4.12.2002 in S.C.No.141 of 2002 on the file of the Principal Sessions Court, Vellore. For appellant : Mr.D.Rajagopal For respondent: Mr.I.Paul Noble Devakumar, Govt. Advocate (Crl. Side) JUDGMENT The Criminal Appeal arises out of the judgment dated 4.12.2002 in S.C.No.141 of 2002 on the file of the Principal Sessions Court, Vellore, whereby, the appellant-accused was convicted for the offence under Section 304 (Part 1) IPC and sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.1,000/-, in default, to undergo simple imprisonment for six months. The trial Court acquitted the accused of the charge under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. 2. The case of the prosecution is as follows: https://hcservices.ecourts.gov.in/hcservices/ (a) On 13.11.2001 at about 1.45 p.m., Sathya, since deceased, went to the 'beeda' shop of the accused. There was some quarrel between the accused and the deceased. The deceased said, @cd; filia , y;yhky; gd;dptpLntd;@/ On hearing these words, the accused developed grudge against the deceased. There was a wordy altercation between them. The accused intentionally took out a knife from his shop and assaulted the deceased on his chin and left hand and when the deceased started running away from the place towards the telephone post, the accused assaulted him by inflicting various injuries, which was stated to have been witnessed by P.Ws.1 to 3. The deceased died on the road. On hearing the shouting, the people started gathering and the Police arrived in the scene of crime. (b) P.W.4 is the wife of the deceased. P.W.12 Deputy Superintendent of Police, Gudiyatham Sub-Division, made 'bandobust' to the scene of occurrence, since the traffic arrangement was paralysed on account of law and order problem. (c) P.W.11 Inspector of Police reached the scene of occurrence on receipt of the message. He received the complaint Ex.P-1 from P.W.1 and registered a case in Cr.No.502 of 2001 for the offences under Section 302 IPC read with Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. He prepared printed FIR Ex.P-25. He despatched the express report/FIR to the concerned Court. Subsequently, he handed over the same to P.W.12 DSP. (d) P.W.12 DSP took up the matter for investigation. Since the case has been registered for the offence under Section 3(2)(v) of the S.C. and S.T. (Prevention of Atrocities) Act, he went to the place of occurrence and prepared observation mahazar Ex.P-20 in the presence of P.W.10 Village Administrative Officer and he also drew rough sketch Ex.P-26. He seized the material objects M.Os.5 to 7 under mahazar Ex.P-21. He conducted inquest in the presence of the witnesses and panchayatdars. The inquest report is Ex.P-27. (e) P.W.12 DSP took photographs through P.W.5. The photographs were marked as Ex.P-2 series and the negatives were marked as Ex.P-3 series. (f) On 13.11.2001 at about 10 p.m., P.W.12 DSP arrested the accused. He gave confession and the admissible portion was marked as Ex.P-22. In pursuance of the same, M.Os.9 and 8 were seized under Exs.P-23 and P-24 mahazars respectively. P.W.12 DSP sent the accused for judicial custody. (g) After arrest, since the accused has sustained injury, he sent him for treatment with a medical memo. P.W.6 Dr.Thirugnanam examined the accused and issued Ex.P-4 accident register, in which the following injury was noted: https://hcservices.ecourts.gov.in/hcservices/ "1. An abrasion right hand of 2 cm x 1 cm". (h) After conducting inquest, P.W.12 DSP gave a requisition in Ex.P-5 for conducting post-mortem. P.W.9 Head Constable handed over the dead body of the deceased to P.W.7 Dr.Premakumari, who received Ex.P-5 requisition and conducted autopsy. Ex.P-6 is the post-mortem certificate, in which the following injuries are noted: "Appearances found at the post-mortem A body of a moderately nourished male lies on its back, surrounded by mortuary, GH, Gudiyattam. Body identified by in-charge police constable and do tally with the police report. External injuries: (1) Incised wound measuring about 1cm x 1/2 cm x 1 cm on the chin. (2) Incised wound about 5 cm x 1/2 cm x 1 cm on the left dorsum of the hand. (3) Incised wound measuring about 4 cm x 2 cm x 7 cm in depth on the right side of the chest at the level of the medial one third of the clavicle extending above the clavicle at the lower part of the neck and below the clavicle at the upper part of the chest. Direction of the wound is downwards and medial. (4) Blood collected from the wound No.3 about 10 ml of the altered dark coloured blood collected and sent for analysis. (5) Incised wound measuring about 4 cm x 2 cm x 5 cm on the right side of the abdomen-above the umbilicus in the right hypochondrial region. Direction of the wound is upwards and medial. Internal appearance: On opening the abdomen and thorax wound No.5, seen extending in the right side of thorax between 7th and 8th inter costal ribs anteriorly. Wound No.3 seen extending above the clavicle in the thoracic cavity up to the upper lope of right lung. Bleeding present. Fracture of the right 12th costal rib at its medical 3 cm anteriorly is seen. Heart: 250 gms. Lungs: right lung-350 gms. Left lung-300 gms. https://hcservices.ecourts.gov.in/hcservices/ A lacerated injury about 6 cm x 4 cm x 2 cm seen on the upper lobe of right lung. Hyoid bone intact. Liver: 1000 gms. An incised wound measuring about 6 cm x 1 cm x 7 cm depth seen in the upper surface of the right lobe of the liver bleeding present. Stomach: contains 300 gms of yellowish coloured partly digested food particles. Spleen: 75 gms. Each kidney: 100 gms. Intestines are normal. Bladder empty. On opening of the skull: Normal. No fracture of skull bones. Brain: 1100 gms. The following viscera are sent for chemical analysis: (1) Stomach with contains (2) Intestine with contains (3) Sample of liver (4) Kidney (5) Preservatives (6) About 10 ml of altered blood from the wound No.3. Post mortem concluded on 14.11.2001 at 12.30p.m. The deceased would appear to have died 21 to 23 hours prior to post mortem. Opinion-reserved pending chemical analysis report." (i) After post-mortem, P.W.9 handed over the dead body of the deceased to the relatives and the material objects belonging to the deceased, namely M.Os.1 to 4 were given to P.W.12 DSP, who received the same under Form 95 Ex.P-19. (j) As per the requisition of the investigating officer, the Court gave Exs.P-11 to P-14 letters to the Forensic Sciences Laboratory for sending the material objects for chemical examination. Ex.P-15 is the toxicologist report. Ex.P-16 is the biologist report. Exs.P-17 and P-18 are the serologist reports. On the basis of the above said reports, the Doctor has given a final report Ex.P-7, in which it is stated as follows: "Final report, 24.12.2001: (1) Report from Forensic Sciences Department-Regional Forensic Science Laboratory, Vellore 4. TOX.H.656/2001 dt.26.11.2001. https://hcservices.ecourts.gov.in/hcservices/ (1) Stomach with contents. (2) Intestines with contents. (3) Liver (4) Kidney (5) articles were examined but poison was not detected in any of them. Internal Appearance of the body: (1) Lungs: A lacerated injury about 6 cm x 4 cm x 2 cm. seen on the upper lobe of the right lung. (2) Liver: An incised wound measuring about 6 cm x 1 cm x 7 cm. seen in the upper surface of the right lobe of the liver. Bleeding present. Opinion as to cause of death: The deceased would appear to have died 21 to 23 hours prior to post mortem due to shock and haemorrhage due to injury to the vital organs like lungs and liver." (k) P.W.12 DSP examined the witnesses and recorded the statement of witnesses. From the Revenue authorities, he also obtained the Community Certificates of the deceased and the accused in Exs.P-28 and 29 respectively. (l) P.W.12 DSP concluded the investigation and filed the charge sheet against the accused for the offences under Section 302 IPC and Section 3(2)(v) of the S.C. and S.T. (Prevention of Atrocities) Act. 3. The trial Court, after following the formalities, framed necessary charges against the accused, to which, the accused pleaded not guilty. After examining the witnesses, the trial Court posed questions under Section 313 Cr.P.C. about the incriminating evidence and the accused denied the same. During the course of trial, on the side of the prosecution, P.Ws.1 to 12 were examined, Exs.P-1 to P-30 were marked and M.Os.1 to 9 were produced. On the side of defence, D.W.1 Dr.Thirugnanam was examined and through him, Ex.D-1 accident register copy of the brother of the accused and Ex.D-2 accident register copy of the father of the accused were marked. The trial Court, after considering the oral and documentary evidence, acquitted the accused of the charge under Section 3(2)(v) of the S.C. and S.T. (Prevention of Atrocities) Act and convicted him for the offence under Section 304 (Part 1) IPC and sentenced him as indicated above. 4. Challenging the conviction and sentence passed by the trial Court, learned counsel for the appellant-accused would submit that he is disputing the genuineness of Ex.P-1 complaint. The presence of P.Ws.1 to 3, the eye-witnesses, is doubtful. The arrest and recovery https://hcservices.ecourts.gov.in/hcservices/ are doubtful. No independent witness has been examined and hence, the non-examination of independent and natural witness is fatal to the case of the prosecution. The complaint has been received after commencement of the investigation and so, the complaint and the FIR cannot be treated as solemn documents and they are only statements under Section 161 Cr.P.C. There is no motive for the accused to commit the offence. He further submitted that there is a delay in preferring the complaint and despatching the same to Court. To substantiate the above contentions, learned counsel relied upon various decisions of Courts. Since the trial Court has not considered the above aspects in proper perspective, it came to the conclusion that the accused is guilty of the offence under Section 304 (Part-1) IPC. Learned counsel prayed for acquittal of the accused and for setting aside the conviction and sentence. 5. Per contra, learned Government Advocate (Crl. Side) appearing for the respondent-Police would contend that the alleged occurrence took place on 13.11.2001 at 1.45 p.m. Ex.P-1 complaint has been received by P.W.11 Inspector of Police at 4 p.m. on that day and so, there is no delay. The delay has been explained by P.Ws.1 to 3 and P.W.11 Inspector of Police. Learned Government Advocate further submitted that since the case is based on the evidence of the eye- witnesses, and P.Ws.1 to 3 are the eye-witnesses, even though they belong to the community of the deceased, but they are not relatives. So, there is no need to examine any other independent witnesses. It is not affecting the case of the prosecution. He further submitted that as soon as the case has been registered, the complaint/FIR was despatched, which was received by the concerned Court at 12 mid-night and since the deceased belong to SC/ST community, the law and order problem has arisen, and hence, the Police have to pacify the matter and so, the delay has been properly explained. The trial Court has considered all the aspects and came to the correct conclusion. The judgment of the trial Court does not suffer from any infirmity. To substantiate his submissions, he relied upon various decisions of Courts. He prayed for dismissal of the appeal. 6. This Court has to decide as to whether the delay in preferring the complaint and despatching the FIR to the Court, vitiates the entire case of the prosecution. Before deciding the same, we have to consider as to whether the evidence of P.Ws.1 to 3, the alleged eye-witnesses, is reliable or not. 7. While considering the evidence of P.W.1, he has deposed before the Court in chief examination that at the time of occurrence, there was wordy altercation between the accused and the deceased, and at that time, P.W.1 was also at the shop of the accused for having tea, which shows that he is only a chance witness. 8. At this juncture, learned counsel for the appellant-accused culled out some portion of the oral evidence of P.W.1 and submitted https://hcservices.ecourts.gov.in/hcservices/ that P.W.1 himself admitted in his cross-examination that the people in the colony gathered and discussed and then only, he preferred Ex.P-1 complaint and handed over it to P.W.11 Inspector of Police and so, Ex.P-1 is the brain-child of the entire colony people and it would not contain the true picture as to what happened in the scene of occurrence. Hence, there was delay of 2.05 hours in preferring the complaint and that has not been explained by the prosecution. 9. It is appropriate to consider the relevant portion of the evidence of P.W.1 in his cross examination, which is as follows: @ //// eh';fs; g[fhh; bfhLf;Fk; nghJ Ch;fhuh; midtUk; ngrp Kot[ bra;J g[fhh; bfhLj;njhk;/ mjdhy; jhd; $hjp bgah; mjpy; ,Ue;jJ/ rk;gt ,lj;jpy; fhty; Jiwapdh;fs; fj;jpia fhl;ltpy;iy/ fhty; epiyaj;jpy; fhl;o tprhhpj;jhh;fs;/ ehd; hpg;nghh;l; bfhLf;Fk; nghJ fj;jpia fhl;odhh;fs;/ m/rh/M/1 vGjpaJ v';fs; Ch; Mrphpah; MFk;/ v';fs; Ch; nfhapyplk; m/rh/M/1 vGjpndhk;/ /////@ 10. The above portion of the evidence of P.W.1 would clearly prove that Ex.P-1 complaint is the brain-child of the people of the entire colony, where the deceased was hailing. Since so many minds were meeting, it may give a coloured and improved version to implicate even an innocent in the commission of the offence. So, it will be unsafe to convict the appellant-accused based on the coloured version of the FIR. In such circumstances, I am forced to accept that Ex.P-1 complaint and Ex.P-25 FIR, have not reflected the true and correct facts. 11. Furthermore, learned counsel for the appellant-accused would cull out some portion of the oral evidence of P.W.12 DSP, the investigating officer, who admitted in his chief examination that on 13.11.2001 at about 2.30 p.m., he went to the place of occurrence on the basis of the information received by him. So, learned counsel for the appellant-accused would submit that even before 2.30 p.m., P.W.12 DSP received the information in respect of the commission of the offence and he went to the place and he started his investigation. But however, in his chief examination, P.W.12 DSP has deposed that he went there for setting right the law and order problem and traffic problem. P.W.12 DSP further submitted that he examined P.W.1 about the incident and then only he directed P.W.1 to go before P.W.11 Inspector of Police and give a complaint and then only, he received the FIR from P.W.11 Inspector of Police, which shows that the DSP has started the investigation before he received the complaint/FIR from P.W.11 Inspector of Police. 12. At this juncture, it is appropriate to consider the decision relied upon by the learned counsel for the appellant-accused, reported in Crimes (HC) 3 (1986) 223 (Krishna K.Puthan and others Vs. Krishna B.Jadav and others), in which, the Bombay High Court held as https://hcservices.ecourts.gov.in/hcservices/ follows: "12. ... In this case, the F.I.R. of the complainant Krishna was recorded by P.S.I. Patil (P.W.11). P.S.I. Patil states that Janardan and Chandrashekhar brought the accused No.2 at the police station and Janardhan told him that the accused No.2 was one of the assailants of his parents. He also told him that one Gotya and his brothers Vasant and Ramesh together with friends assaulted his parents with a knife and fist blows. This information given by Janardan was not recorded by P.S.I. Patil. He went to Rajawadi Hospital where the injured complainant Krishna and his wife Chandravati were taken. At the hospital he recorded the statements of the complainant Krishna, Janardan, Chandrashekhar, Narayan, Bangera and Chandravati. He states that he has not recorded timing of the statements of those witnesses recorded by him and, therefore, he could not say in what sequence he recorded their statements. As P.S.I. Patil got the fill information about the incident from Janardan, he commenced the investigation, and during investigation he arrested the accused No.2 and recorded the statement of the witnesses. The complainant Krishna is one of those witnesses. As P.S.I. Patil had already commenced investigation and the statement of Krishna came to be recorded during investigation, the learned trial Judge was right in holding that it could not be treated as First Information Report. It may be mentioned that the learned trial Judge admitted the F.I.R. on record subject to the objection raised to its admissibility and permitted the parties to put questions with reference to the F.I.R. and be decided the question of the admissibility at time of judgment. The finding of the learned trial Judge that the statement of Krishna could not be treated as F.I.R. is correct in the circumstances of the present case, it having been recorded after the commencement of the investigation. ...." From the said decision, it is clear that the statement of the complainant recorded after commencement of the investigation, could not be treated as FIR. 13. Learned counsel for the appellant-accused further submitted that there is a delay in registering the case. He relied upon a decision of a Division Bench of this Court reported in 1993 (2) MWN (Cri) Mad 59 (Thyagarajan Vs. State), in which, it was held as follows: "27. Even otherwise, in the context of the evidence given by P.W.11 that the F.I.R. Ex.P-16 reached the court by 12.00 noon, on 6.4.1985 because the learned regular Magistrate was on leave and that therefore, the same was handed over to the Magistrate in charge by 12.00 noon on that https://hcservices.ecourts.gov.in/hcservices/ date. There is no evidence let in by the prosecution in this case significantly. If the claim of P.W.11 was true then normally we will expect that the learned Magistrate in charge while putting the signature and noting the time of receipt of the F.I.R. and its connected documents must have necessarily referred to the time, and also put his designation Magistrate in charge. But, the very absence of the same in Exs.P-1 and P-2 and P-16 clearly runs counter to the claim by P.W.11 and that therefore on this score alone there is every serious doubt about the prosecution case, particularly about the credibility and genuineness of Exs.P-1, P-2 and P-16. Even so, as claimed by P.W.11., the learned Magistrate Court at Rasipuram was at a distance of about one kilometre from the police station and one can cover the said distance by two minutes' walk and that if it was so, in the absence of any initial of the Magistrate in charge in the above documents, in the context of the date seal belonging to the Magistrate's Court, Rasipuram, it clinchingly proves that the delay in sending the Exs.P-1, P-2 and P-16 distance of one Km. at a span of nearly about 11 hours, demolishes the very fabric of the prosecution case in its entirety. We find that there was no iota of evidence let in by the prosecution with regard to the delay in sending the F.I.R. and as such the delay remains unexplained." In the said decision, even though the complaint was recorded on 5.4.1985 at 11.30 p.m., and the FIR has reached the Court on 6.4.1985 at 12 noon, the delay was only negligible. 14. In the decision of the Supreme Court reported in AIR 1976 SC 2423 (Ishwar Singh Vs. State of U.P), relied on by learned counsel for the appellant-accused, it was held as follows: "The extraordinary delay in sending the F.I.R. is a circumstance which provides a legitimate basis for suspecting that the first information report was recorded much later than the stated date and hour affording sufficient time to the prosecution to introduce improvements and embellishments and set up a distorted version of the occurrence. In this case the suspicion hardens into a definite possibility when the case made in court differs at least in two very important particulars from that narrated in the F.I.R. In such a case, the evidence of the eye- witnesses "cannot be accepted at its face value". " The said decision deals with two days' delay in sending the FIR to the Court. In the present case, there is no such delay of 2 days. 15. Learned counsel for the appellant-accused further relied on the decision of the Supreme Court reported in 2002 SCC (Cri) 1027 https://hcservices.ecourts.gov.in/hcservices/ (Jang Singh Vs. State of Rajasthan), which deals with three days' delay in sending the FIR to the Magistrate and in the absence of explanation, the Supreme Court held that the delay was fatal. 16. Next decision relied on by learned counsel for the appellant-accused is reported in 2009 (10) SCC 800 (State of Punjab Vs. Avtar Singh), in which the Supreme Court held as follows: "5. Though it cannot be laid as a rule of universal application that whenever there is delay in lodging the FIR and/or there is delay in dispatching the report to the Illaqa Magistrate and/or the medical evidence is at some variance with the ocular evidence the prosecution has to fail. In the instant case the combined effect of the three factors leaves no manner of doubt that prosecution has failed to establish the accusations. The view taken by the High Court is a possible view and we do not consider this to be a fit case where any interference is called for." 17. Learned counsel for the appellant-accused also relied upon the decision of the Supreme Court reported in 2008 (3) SCC (Cri) 330 (Dilawar Singh Vs. State of Delhi), in which it was held as follows: "Criminal Procedure Code, 1973---S.154---FIR--- Delay---Effect---Incident occurring on 8.8.1984, while complaint made on 31.8.1984---Except for a bare statement to the effect that representations were made to various persons, no material in that regard was adduced--- Complaint seeking to explain the delay by stating that the matter was reported to the police but the police did not take any action but modalities envisaged under Section 154(3) not adopted---Held, such allegations have to be established by calling for the necessary records from the police---Absence of such satisfactory proof was fatal to prosecution case." 18. Learned Government Advocate relied upon the decision of the Supreme Court reported in 2002 SCC (Cri) 175 (Munshi Prasad Vs. State of Bihar). In the said decision, the occurrence has taken place on 27.6.1980 at about 3 p.m. and the complaint was given at 4.30 p.m. In such circumstances, it was held in that case that there is no extraordinary delay. In the said case, the Supreme Court held as follows: "Mere delay in filing FIR cannot be said to be fatal to a criminal prosecution. First information report cannot but be termed to be the starting point and thus sets in motion a criminal investigation. Strictly speaking it is of no consequence in the event the FIR has been delayed with a plausible explanation though on the factual score it is not https://hcservices.ecourts.gov.in/hcservices/ even so." 19. Learned Government Advocate further relied on the decision of the Supreme Court reported in 2005 SCC (Cri) 1230 (Sunil Kumar Vs. State of Rajasthan). In the said decision, the FIR was recorded on 29.10.1999 at about 11 am and it reached the Magistrate on 30.10.1999 at about 12 noon and the Supreme Court held as follows: "13. Great stress was laid on the alleged delay in dispatch of the FIR to the Ilaka Magistrate. FIR was recorded on 29.10.1999 at about 11.00 a.m. and reached the Magistrate on 30.10.1999 at about 12 noon. It cannot be laid down as a rule of universal