IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 04.03.2010 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE C.S.KARNAN CRIMINAL APPEAL NO.803 of 2009 Guna @ Gunasekaran Appellant/ Accused Vs. State rep by Inspector of Police, R-1 Mambalam Police Station, Chenani 17 .. Respondent This criminal appeal has been preferred under Section 374(2) Cr.P.C. against the sentence and conviction passed by the District cum Sessions Court (Fast Track Court NO.1), Chennai dated 10.11.2003 in S.C.No.440 of 2003 convicting the appellant/accused under Section 302 IPC. For Appellant : Mr.B.Rajamani For Respondent : Mr.V.R.Balakrishnan, APP JUDGMENT (The Judgment of the Court was made by M.CHOCKALINGAM, J.) Challenge is made to the Judgment of the Sessions Division, Fast Track Court No.1, Chennai made in S.C.No.440 of 2003, whereby the appellant/sole accused stood charged, tried and found guilty of murder and awarded life imprisonment and to pay a fine of Rs.1,000/-, in default to undergo 5 months RI. 2.The short facts necessary for the disposal of this appeal are stated as follows:- a) P.W.1 was employed under the deceased, who was carrying on the work of goldsmith at No.33, 12/1, Baroda Street, West Mambalam, under whom number of persons were also employed. During the relevant time, the accused was also employed under him. The deceased was giving Rs.700/- per month to all the employees and the accused was asking more salary, to which the deceased was not amenable. He was demanding Rs.1,000/- per month. But the deceased replied that he would pay only Rs.500/- per month. https://hcservices.ecourts.gov.in/hcservices/ (b) On the day of occurrence, that was on 08.08.2003, P.W.1 and his uncle, the deceased, opened the shop and when they were just got inside, the accused came over there and demanded Rs.1,000/- from the deceased and immediately when the deceased replied that he had no money, the accused took M.O.1 knife from his waist and attacked him on the different parts of the body indiscriminately. It was witnessed by others also. P.W.4 had also seen the occurrence. (c) Immediately, the severely injured was taken to the Bharathiraja Hospital, where P.W.2 Doctor was on duty. He medically verified and declared him dead. (d) P.W.1 proceeded to the respondent police station where P.W.8 Sub Inspector of Police was on duty, to whom, he gave Ex.P.1, complaint, on the strength of which, a case came to be registered under Section 302 IPC in Crime No.982 of 2003 and Ex.P.12 express F.I.R. was despatched to the Court. (e) P.W.9, the Inspector of Police, on receipt of the copy of the F.I.R. took up the investigation, proceeded to the spot, made an inspection, in the presence of the witnesses and prepared Ex.P.7, the observation mahazar and Ex.P.14, the rough sketch. He enquired the witnesses and recorded their statements. (f) P.W.9 conducted inquest on the dead body in the presence of the witnesses and panchayatdars and prepared Ex.P.13 report. Thereafter, the dead body and the place of occurrence were photographed through the photographer Kandhan. (g) Pursuant to the request made by the Investigating Officer, the dead body was subjected to Post mortem by P.W.2 Doctor, who has given his medical opinion that the deceased would appear to have died of shock and haemorrhage due to injuries sustained by them. The post mortem certificate was marked as Ex.P.6. (h) Following the same, P.W.9 Inspector of Police arrested the accused on the very day at 04.00 p.m. when he came forward to give confession statement voluntarily. The same was recorded in the presence of witnesses, pursuant to which he produced M.O.1 blood stained knife, which was recovered under the cover of a Mahazaar. Thereafter, the accused was sent for judicial remand. All the material objects recovered were subjected to chemical analysis by the Forensic Science Department and certificate was obtained and it was placed before the Court. On completion of the investigation, the Investigating Officer has filed the final report. (i) The case was committed to the Court of Sessions and necessary charges were framed. In order to substantiate the charges levelled against the appellant, the prosecution examined https://hcservices.ecourts.gov.in/hcservices/ 9 witnesses and relied on 14 exhibits and 9 M.Os. On completion of the evidence on the side of the prosecution, the accused was questioned under Section 313 Cr.P.C. as to the incriminating circumstances found in the evidence of prosecution witnesses, which he flatly denied as false. No witness was examined on the side of the accused. (j) On completion of the evidence, the trial court heard the arguments advanced, looked into the materials available and took the view that the prosecution has proved the case beyond reasonable doubt and found him guilty of the charge of murder and awarded the life imprisonment as referred to above. Hence, this appeal at the instance of the appellant. 3.Advancing arguments on behalf of the appellant, the learned counsel would submit that P.W.1 is the only witness available to the prosecution and he is closely related to the deceased and hence he come forward to give false evidence. Added further, the learned counsel, P.W.1 could not fortify the contention as he could not have seen the occurrence at all. He took the Court to the evidence of P.W.2 Doctor, attached to the Bharathiraja Hospital. According to P.W.2, the severely injured was brought dead to his hospital at about 09.50 a.m. and he witnessed the same. He had also mentioned in Ex.P.2 Accident Register. That would clearly indicate that according to P.Ws.1 and 4, the occurrence had taken place at 09.45 a.m. Therefore, it would clearly indicate that both the witnesses could not have seen the occurrence at all. 4. Added further, learned counsel, except this flimsy evidence on the side of prosecution through P.Ws.1 and 4, who could not have seen the occurrence at all, the prosecution had no further evidence to offer. The alleged arrest, confessional statement and recovery of knife and other material objects were nothing but all subsequent introduction in order to strengthen the case of the prosecution, if possible, but in vain. He would further submit that the evidence adduced by the prosecution was actually shaky. 5. Added further, in the instant case, even the scientific opinion is not in favour of the prosecution. Under such circumstances, the trial Court has miserably failed to prove its case and has taken an erroneous view and hence he is entitled for the acquittal. 6. The Court heard the learned Additional Public Prosecutor on the above contentions and has paid its anxious consideration on the submissions made. 7.It is not in controversy that one Selvaraj immediately after the occurrence that had taken place at the morning at about 09.00 a.m. on 08.08.2003 was taken to the Bharathiraja Hospital, where P.W.2 was the duty Doctor, who after seeing the body https://hcservices.ecourts.gov.in/hcservices/ declared him dead, following which a complaint has been given by P.W.1 to P.W.8 Sub Inspector of Police, pursuant to which a case came to be registered and the FIR was sent to the Court immediately and on receipt of the copy of the FIR, P.W.9, Inspector of Police of that Circle took up the investigation, proceeded to the spot and made inspection and after preparation of inquest report, he sent the dead body for the purpose of post mortem. The Doctor pursuant to the request made by the Investigating Officer, conducted autopsy on the dead body and has given his medical opinion in Ex.P.6, post mortem certificate that the deceased would have died out of shock and haemorrhage due to the injuries sustained by him. 8. A perusal of the post mortem certificate would show that there were 18 cut injuries. P.W.1 has categorically stated that the accused stabbed the deceased indiscriminately. Apart from the evidence of P.W.1, according to P.W.4, he saw the deceased who had come out of the shop with bleeding injuries and the accused followed and stabbed him on his back. Thus the second part of the occurrence was actually witnessed by P.W.4 and hence the evidence of P.W.1 that he has seen the entire occurrence and P.W.4's latter part of the evidence stood corroborated by the medical evidence also. 9. Yet another circumstance which stood strongly against the appellant was the recovery of M.O.1 knife and also blood stained clothes. Immediately within a short span of time the accused was arrested in the very evening and the material objects were recovered from him and they were subjected to analysis and thus the recovery of the material objects and in particular the weapon of crime M.O.1 from the accused following the confession statement given voluntarily would indicate the nexus of the crime with the accused. All would show clearly that the prosecution had clear evidence pointing to the guilt of the accused. In the face of the evidence available, the contentions putforth by the learned counsel for the appellant do not merit acceptance at all. 10. The contention putforth as could be seen above is two fold. One is, that the evidence of P.Ws.1 and 4 could not be believed and the other is that the seen of occurrence could not have been seen by them in view of the statement made by P.W.2 Doctor that the dead body was brought to the Bharathiraja Hospital at about 09.50 a.m. 11. The first contention cannot be countenanced for the simple reason that the evidence of P.Ws.1 and 4 despite careful scrutiny, stood the test. In sofar as the other contention namely the time factor is concerned, it is only a short span of difference in the time and thus it cannot be a material difference that would tilt the balance. Under such circumstances it could be safely recorded that the prosecution had brought home the guilt of the accused. The trial Court was perfectly correct in recording a finding that the accused is guilty of the crime and https://hcservices.ecourts.gov.in/hcservices/ awarded the life imprisonment. This Court is unable to see anything to interfere either factually or legally in the Judgment of the Trial Court. 12.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. rg To 1. The District cum Sessions Court (Fast Track Court NO.1), Chennai 2. Inspector of Police, R-1 Mambalam Police Station, Chenani 17 3. The District Collector Chennai 4. The Director General of Police Chennai-4. 5. The Superintendent of Police Chennai 6.The Additional Public Prosecutor, High Court, Madras. 7. The Section Officer Criminal Section, High Court, Madras 1 cc to Mr.B. Rajamani, Advocate, SR. 14739 CRL.A.NO.803 of 2009 KS (CO) kk 12/3 https://hcservices.ecourts.gov.in/hcservices/