IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 5-1-2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE M.VENUGOPAL CRL.A.No.258 of 2008 1.Murugan 2.Kannan .. Appellants/Accused 1 & 2 vs State by: Inspector of Police Ariyankuppam Police Station Puducherry (Crime No.112/2003) .. Respondent/Complainant Criminal appeal preferred under Sec.374(2) of the Code of Criminal Procedure against the judgment of the Principal Sessions Judge, Puducherry, made in S.C.No.56 of 2005 dated 31.3.2008. For Appellants : Mr.Ashok Kumar Senior Counsel for Mr.A.Tamilvanan For Respondent : Mr.S.Natarajan Additional Public Prosecutor (Pondicherry) JUDGMENT (Judgment of the Court was delivered by M.CHOCKALINGAM, J.) This appeal challenges a judgment of the Principal Sessions Division, Pondicherry, made in S.C.No.56 of 2005 whereby the appellants two in number, stood charged under Sections 341 read with 34 and 302 read with 34 of IPC, tried, found guilty as per the charges and awarded one month Simple Imprisonment and life imprisonment along with a fine of Rs.500/- and default sentence respectively. 2.The short facts necessary for the disposal of this appeal can be stated as follows: (a) P.W.1 is the mother of the deceased Tamizh @ Tamizhvanan. P.W.2 is also working along with the deceased. The deceased was in https://hcservices.ecourts.gov.in/hcservices/ the habit of taking mamul from the grocery shops of A-1 and others at Ariyankuppam. Due to that, there prevailed enmity between A-1 and the deceased. On the date of occurrence namely 3.8.2003, at about 3.00 P.M., when the deceased was riding his motorbike along with P.W.2, both the accused intercepted them at the junction of Old Cuddalore Road and Arunthathipuram Road and began to attack the deceased with iron rods marked as M.Os.2 and 3 respectively. Both the deceased and P.W.2 fell down. Immediately, both the accused attacked the deceased severely. (b) P.W.2 who was the sole eyewitness to the occurrence, immediately ran away from the place of occurrence, went to the house of the deceased and informed P.W.1 about the incident. In the meanwhile, P.W.5, a Constable, who was on his way in connection with service of summons, found the severely injured at the scene of occurrence and took him to the Government Hospital, Pondicherry, where he was declared dead. P.W.5 immediately gave a message to P.W.16, the Inspector of Police, attached to the respondent police station, from the hospital. There was a CD entry to that effect. (c) In the meanwhile, P.W.1 on information from P.W.2, went to the place of occurrence, but she did not find her son. Then, she was informed that her son was taken to the Government Hospital, Pondicherry. Immediately, she rushed over there and came to know that her son already died. P.W.16, who got the message, rushed over to the Government Hospital. He took the statement of P.W.1, returned to the police station and registered a case in Crime No.112 of 2003 under Sections 341 and 302 read with 34 of IPC. The printed FIR, Ex.P27, was sent to the Court. (d) P.W.16 took up investigation, proceeded to the spot, made an inspection in the presence of witnesses and prepared an observation mahazar, Ex.P2, and drew a rough sketch, Ex.P28. He recovered from the place of occurrence bloodstained earth and sample earth under a cover of mahazar. Then, he went to the hospital and conducted inquest on the dead body of Tamizhvanan in the presence of witnesses and panchayatdars and prepared an inquest report, Ex.P29. (e) On a requisition given by the Investigator, P.W.11, the Chief Medical Officer, Department of Forensic Medicine, General Hospital, Pondicherry, conducted autopsy on the dead body of Tamizhvanan on 4.8.2003, and has issued a postmortem certificate, Ex.P17. The Doctor has also given his final opinion under Ex.P19 that the deceased died of head injuries. (f) Pending the investigation, A-2 was arrested on 8.8.2005 by the Investigating Officer. He volunteered to give a confessional statement. The admissible part is marked as Ex.P5. Following the same, he also produced M.O.3, iron rod, and M.O.6, bloodstained shirt. They were all recovered under a cover of mahazar. On the very day, A-1 was also arrested. He gave a confessional statement voluntarily. The same was recorded. He also produced M.O.2, iron rod, and M.O.7, bloodstained shirt, and they were all recovered under a cover of mahazar. Both the accused were sent for judicial remand. All the material objects were subjected to chemical analysis by the Forensic Sciences Department which brought forth two reports namely https://hcservices.ecourts.gov.in/hcservices/ Ex.P18, the chemical analyst's report, and Ex.P25, the serologist's report. One Balakrishnan, the Inspector of Police, took up further investigation and on completion of the investigation, 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 marched 16 witnesses and also relied on 30 exhibits and 11 material objects. On completion of the evidence on the side of the prosecution, both 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 lower Court heard the arguments advanced and took the view that the prosecution has brought home the guilt of the accused beyond reasonable doubt, and hence, found them guilty and awarded the imprisonment 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.Ashok Kumar would submit that in the instant case, the occurrence, according to the prosecution, has taken place at 3.00 P.M. on 3.8.2003 in a public road; that the entire case rested upon the evidence of P.W.2 only; that according to P.W.2, he went along with the deceased at that time in a motorbike and both of them were actually waylaid by A-1 and A-2 who were armed with iron rods, M.Os.2 and 3 respectively, and they were attacking the deceased, and at that time, both of them fell down; that had such an occurrence taken place, P.W.2 could have gone to the rescue of his friend who was being attacked, but not done so; and that it is highly curious to note that he did not even go to the police station immediately; but, on the contrary, he went to the house of the deceased and informed to P.W.1, which was thoroughly unnatural. 5.Added further the learned Senior Counsel that according to P.W.5, the constable, who was on his way in connection with service of summons, found the severely injured at the place of occurrence, and therefrom he took him to the Government Hospital, Pondicherry, where he was declared dead, and he also gave information to the Inspector of Police who has also recorded the same; that the FIR which has been recorded by the Investigating Officer, P.W.16, if looked into, would clearly indicate that the information of P.W.5 has also been recorded, but it did not disclose the name of the assailants; that had it been true that within a short span of time, P.W.5 has actually seen the severely injured person at the place of occurrence, he would have informed about the assailants, but not done so; that the same would indicate that he was not informed about the assailants; and that it would be indicative of the fact that the accused/appellants have nothing to do with the crime in question. 6.Added further the learned Senior Counsel that according to P.W.16, on information from P.W.5 from the Government Hospital, he went over to the hospital and recorded the statement of P.W.1 at about 17.15 hours; that according to P.W.1, she went to the police station at about 7.00 or 8.00 P.M. along with a relative and gave a statement, and the same has been recorded by the police officer; that it would be clearly indicative of the fact that P.W.2 has actually https://hcservices.ecourts.gov.in/hcservices/ been taken as a witness as if he has witnessed the occurrence; that this would also go to show that the report, Ex.P1, could not have come into existence as put forth by the prosecution; that it could also be seen that since there was no eyewitness to the occurrence, they have taken the service of P.W.2 in order to implicate both the accused; that further, the evidence of P.W.2 should not have been believed by the trial Court for the simple reason that at the time when the police officer recorded the statement under Sec.161 of Cr.P.C., he has categorically stated that it was A-1 who attacked the deceased with an iron rod on the head, and A-2 attacked him only on the face; but, when he gave evidence in Court, he has deposed in such a way that both the accused have attacked him on the head with iron rods; that the same would be indicative of the fact that it was only a development, and he has not seen the occurrence at all; that for the above reasons, the evidence of P.W.2 should have been rejected by the lower Court; but, on the contrary, it has taken an erroneous view; and that if the evidence of P.W.2 is rejected, then the prosecution had no evidence to offer. 7.Added further the learned Senior Counsel that even P.W.2 did not know the motive which impelled both the accused to attack the deceased; that apart from that, the recovery of iron rods pursuant to the alleged confessions were all cooked up affair, and thus, the prosecution has not proved the case beyond reasonable doubt. 8.Added further the learned Senior Counsel that if the Court comes to the conclusion that the evidence of P.W.2 could be accepted, as far as A-2 was concerned, there is nothing to indicate or infer that he has actually given the attack which was fatal and has caused the death; that according to P.W.11, the Doctor, who conducted autopsy, the three external injuries found on the skull and the corresponding internal injuries have actually caused the death; that according to P.W.2 and the earliest statement recorded by the Investigator, these injuries were caused by A-1 and not by A-2; that according to P.W.1 and the earliest statement, A-2 attacked the deceased only on the face; that the injuries which were found on the face, were only abrasions and simple in nature, and under the circumstances, this has got to be considered by this Court. 9.The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made. 10.It is not in controversy that one Tamizhvanan the son of P.W.1, died in an incident that took place at about 3.00 P.M. on 3.8.2003 at the place of occurrence as put forth by the prosecution. It was P.W.5, the Constable, who took him to the hospital, and he was declared dead by the medical person in the Government Hospital. Following the inquest made by P.W.16, the Investigator, and the preparation of Ex.P29, the inquest report, the dead body was subjected to postmortem by P.W.11, the Doctor, who has given his categorical opinion in Ex.P17 and final opinion in Ex.P19 that he died out of the external injuries found on the skull and also the corresponding internal injuries. Thus, the lower Court was perfectly correct in recording that Tamizhvanan died out of homicidal violence. Apart from that, this fact that he died out of homicidal violence was https://hcservices.ecourts.gov.in/hcservices/ never disputed by the appellants before the trial Court. Hence without any impediment, it could be recorded so. 11.In order to substantiate the case of the prosecution that it was A-1 and A-2 who waylaid P.W.2 and the deceased when they were on their way in the motorbike at the place of occurrence and attacked the deceased with the iron rods, the prosecution rested its entire case on the evidence of P.W.2. Needless to say that the law of evidence does not require the quantity of evidence, but quality of evidence. In the instant case, if the evidence of P.W.2 is believable, this Court feels that there is no impediment in sustaining the conviction. According to P.W.2, he accompanied the deceased at the time of occurrence in a motorbike and when they were on the way, A-1 and A-2 waylaid them and began to attack the deceased, and both of them fell down, and again they attacked the deceased. At this juncture, a comment was made by the learned Senior Counsel that had it been true that P.W.2 witnessed such an occurrence, he would have gone to the rescue of his friend, the deceased. This contention cannot be accepted for the simple reason that it depends upon the individual frame of mind. According to P.W.2, he actually got frightened, ran away from the place of occurrence, went to the house of the deceased and informed to P.W.1, the mother of the deceased. Under the circumstances, the other contention that he has not gone to the police station immediately cannot be a reason to reject his testimony. 12.Apart from the above, according to P.W.1, when she was in the house, the incident was informed to her by P.W.2, and then, along with P.W.2 she went to the place of occurrence; but, she could not see her son, and thereafter, she went over to the hospital where she was informed that her son actually died. It is further to be pointed out that P.W.5, the Constable, who was actually on his way along with the summons for service, found the severely injured at the place of occurrence, and then he took him in an auto of P.W.3 to the hospital where he was declared dead. At this juncture, it has got to be pointed out that P.W.5, the Constable, found the severely injured, and it did not pass in his mind that he died; but, on the contrary, in order to save him, he has taken him to the hospital. It is not the evidence of P.W.5 that anybody was present at the time when he took the body of the deceased from the place of occurrence to the hospital, and thus, he had no information about the assailants. Under the circumstances, he was unable to give the information in that regard to the Investigating Officer. It remains to be stated that the Investigating Officer has stated that he has clearly recorded the entire information passed on by P.W.5 from the hospital, and it is the first part of the FIR, and thereafter, the statement given by P.W.1, has actually been recorded. All put together would go to show that when such an incident has taken place, it could have been recorded so. 13.Added circumstance is that the statement of P.W.2 was recorded the very day at about 9.00 P.M., and it was sent to the Court. This would be indicative of the fact that without witnessing such an incident, P.W.2 could not have made such a statement. Further, the case was registered at about 5.15 P.M. and the FIR was handed over to the Magistrate during night hours namely at 00.45 hours, in his https://hcservices.ecourts.gov.in/hcservices/ residence where both the names of the appellants are clearly stated. Thus, it would be indicative of the role played by the accused in the case. 14.The contention put forth by the learned Senior Counsel that P.W.1 has stated that she went to the police station and gave a statement at about 7.00 or 8.00 P.M., and therefore, it casts a doubt on the registration of the case as put forth by the Investigator cannot be accepted. As far as P.W.1 was concerned, she was not an eyewitness, and apart from that, it is not her case that she looked at the involvement of A-1 or A-2; but, it was only an information passed on by P.W.2, and to that extent of setting the criminal law in motion, the evidence of P.W.1 could be taken. As far as P.W.2 was concerned, he was the only eyewitness. On a careful scrutiny of the evidence of P.W.2 though uncorroborated and solitary, this Court is satisfied that his evidence has got to be accepted. Apart from this, the evidence of P.W.2 stood fully corroborated by the medical evidence. Yet another circumstance is the recovery of the weapons of crime, M.Os.2 and 3, iron rods, which would also be pointing to the nexus of the crime with the accused. Thus, the factual position that both the accused persons attacked the deceased at the time and place of occurrence has got to be accepted. Accordingly, it is accepted. 15.As far as the second line of argument put forth by the learned Senior Counsel for the appellants is concerned, this Court is able to see force in the same. The medical opinion was canvassed through P.W.11, the Doctor, who has given his final opinion in Ex.P19 that the death was caused by the three external injuries found on the skull and the corresponding internal injuries. Ex.P17 is the postmortem certificate which would also clearly indicate that three external injuries on the skull and the corresponding injuries are also noticed. The Doctor has given his categorical opinion that the injuries sustained on the skull has caused the death. At the earliest when P.W.1 gave the statement to the police which was recorded under Sec.161 Cr.P.C., she has stated that it was A-1 who attacked the deceased, and it was A-2 who attacked him on the face. As rightly pointed out by the learned Senior Counsel for the appellants, the injuries found on the face, were only simple in nature. It is not the case of the prosecution or the medical opinion canvassed that death was due to the cumulative effect of the injuries sustained. But, the Medical Person was so specific that the injuries sustained on the head, caused the death. Under the circumstances, there is nothing to infer or indicate that they had got common intention to share with. Under the circumstances, the act of A-1 has caused the death, and thus, A-1 has got to be convicted under Sec.302 of IPC. Accordingly, the conviction of A-1 under Sec.302 read with 34 of IPC are set aside, and instead, he is convicted under Sec.302 of IPC. The sentence awarded by the lower Court is affirmed. 16.As regards A-2, the act of A-2 would attract the penal provision of Sec.324 of IPC and awarding punishment of 2 years Rigorous Imprisonment would suffice in the considered opinion of the Court. Accordingly, the conviction and sentence of life imprisonment imposed on A-2 under Sec.302 read with 34 of IPC are set aside, and instead, he is convicted under Sec.324 of IPC for which he is directed to suffer two years Rigorous Imprisonment. The sentence https://hcservices.ecourts.gov.in/hcservices/ already undergone by him shall be given set off. The fine and default sentence imposed by the trial Court will hold good. 17.As regards the conviction of A-1 and A-2 by the trial Court under Sec.341 read with 34 of IPC, the same is modified, and they are convicted under Sec.341 of IPC. The sentence awarded by the trial Court in that regard is affirmed. 18.In the result, with the above modification in conviction and sentence, this criminal appeal is dismissed. Regarding the return of the property, the order made by the trial Court is affirmed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To: 1.The Principal Sessions Judge Pondicherry. 2.The Judl. Magistrate No.1 Pondicherry. 3.-Do-Thro' the Chief Judl. Magistrate. 4.The Superintendent, Central Prison, Pondicherry. 5.The Inspector of Police Ariyankuppam Police Station Puducherry (Crime No.112/2003) 6.The Public Prosecutor (Pondicherry) High Court, Madras. 1 CC To Mr.A.Tamilvanan, Advocate, SR NO.337 1 CC to the Government Pleader, SR NO.69 CRL.A.No.258 of 2008 gv(co) pmk/19.1.2009. https://hcservices.ecourts.gov.in/hcservices/