IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 12/12/2003 Coram The Hon'ble Mr. Justice P.SATHASIVAM and The Hon'ble Mr. Justice M.THANIKACHALAM Crl. Appeal No.1002 of 1995 1.Ramachandran 2.Govindaraj 3.Saravanan @ Saravanakumar .. Appellants -Vs- State by Inspector of Police, Manapparai Police Station, Trichy District. (Crime No.396/94) .. Respondent Criminal Appeal preferred against the judgment dated 11.11.1995 made in S.C.No.89 of 1995 on the file of the Principal Sessions Judge, Trichirappalli. !For Appellants .. Mr.S.Shanmuga Velayutham ^For Respondent .. Mr.V.Arul, Govt. Advocate (Crl. Side) :JUDGMENT M.THANIKACHALAM, J. The accused 1 to 3 in S.C.No.89 of 1995 on the file of Principal Sessions Judge, Tiruchirappalli Sessions Division are the appellants. 2.The respondent/complainant, filed a final report against the appellants/accused 1 to 3 and two others, seeking conviction for the offence said to have been committed by them, under Section 120-B r/w 449 IPC, 449 r/w 34 IPC and 302 r/w 114 IPC on the ground, that they have conspired together to commit dacoity in the house of one Palaniappa Chettiar on 24.11.1994 at about 07.00 a.m. in the house of the fifth accused, that in pursuance of the conspiracy hatched, the accused 1 to 3 trespassed into the house of Palaniappa Chettiar in order to commit dacoity on 25.11.1994 at about 01.30 p.m.; that too with an intention to commit murder if there was a resistance and that they have committed the murder of Palaniappa Chettiar, by strangulating him using a rope thereby caused his death and in this view, all are liable to be convicted under the appropriate provisions of law. 3.Upon considering all the materials placed before the Principal Sessions Judge, Tiruchirappalli, he formed an opinion that there are materials to frame charges, and to proceed further. In this view, framing charges against all the accused, he questioned them, explaining the nature of offences, for which all the accused have pleaded not guilty, thereby compelling the prosecution to take the burden of proof, on their shoulders. 4. The complainant in order to make out a case as framed against all the accused, marched in 18 witnesses armed with 23 documents, supported by five material objects. To nullify the effect of the above evidence, if any, on behalf of the accused, five witnesses were examined seeking support from five documents. 5. The learned Principal Sessions Judge, Tiruchirappalli, on a consideration of the above materials and scanning the same in accordance with the well laid principles of law, came to the conclusion, that the prosecution has miserably failed to prove the conspiracy and in this view, acquitted A-4 and A-5. But, the assessment of the materials further revealed the offence reported against A-1 to A-3, and therefore he convicted the accused appellants 1 to 3. A1 is convicted under Section 449 IPC and sentenced to suffer rigorous imprisonment for five years, and life imprisonment under Section 114 r/w 302 IPC. The accused 2 and 3 were found guilty under Sections 449 and 302 IPC jointly, and they were convicted and sentenced to undergo rigorous imprisonment for five years, for the offence under Section 449 IPC in addition to life imprisonment for the offence under Section 302 IPC ordering the sentence to run concurrently. 6. The prosecution case, in brief, necessary to decide the case is as follows: (i)Thiru.Muthiah (P.W.11) is the son of Palaniappa Chettiar. Palaniappa Chettiar a Pawn Broker by profession was residing at Ramaswamy Street, Manapparai. P.W.1 by name Selvam and P.W.6 by name Arivuselvam are residing opposite to the house of Palaniappa Chettiar, in the same street. The accused 1 to 5 have hatched the conspiracy, on 24.11.19 94 at about 07.00 p.m. in the house of A-5, at Tiruchirappalli to commit dacoity in the house of Palaniappa Chettiar, if resisted, followed by murder also. (ii)On 25.11.1994 at about 01.30 p.m., P.W.1 and his son were sitting in their house, discussing their family matters. Hearing some noise in the house of Palaniappa Chettiar, they went there, knocked the door, but there was no response. Hearing the noise, P.W.3, a worker in a Mill, who came on the way and P.W.4, a Painter by profession who came through that street, P.W.5 as well as P.W.6, joined with P.W.1. Despite their knocking the door, there was no response, but all of them heard some noise inside the house. Suspecting some thing is going on inside the house, all of them ran towards south, turned towards the lane and peeped through the window. To their surprise, P.Ws.1 and 3 to 5 witnessed the accused 2 and 3, strangulating the neck of Palaniappa Chettiar by a rope, while the first accused caught hold of him. Because of the strangulation, blood oozed from the mouth of Palaniappa Chettiar. By the hue and cry of the witnesses, the accused attempted to escape from the scene of crime. (iii)On seeing, that the accused are attempting to escape, P.Ws.1 and 3 to 5 chased them, but failed to apprehend A-2 and A-3, since they scaled the compound wall and vanished from their eyes, which was witnessed by P.W.6 also. P.W.1 while chasing the accused fell down, and sustained some injuries also. All the above said witnesses unable to apprehend the accused, then went inside and noticed that Palaniappa Chettiar was murdered, and the nearby bathroom was locked inside. Apprehending that there may be somebody inside, one of the witnesses sat there, in order to prevent the escape of any other accused, if inside. (iv)P.W.1 immediately rushed to the police and narrated the incident, which he had seen, which was reduced into writing as Ex.P-1 by P.W.18, the Inspector of Police, Manapparai Police Station at about 02.30 p.m. on the same day i.e. 25.11.1994. On the basis of Ex.P-1, P.W.18 registered a case under Section 302 IPC, in Crime No.396 of 1994 for which he submitted the printed F.I.R. Ex.P-18 to the Court concerned, through P.W.16. (v)By taking up the case for investigation, P.W.18 rushed to the scene of crime at about 04.30 p.m. on 25.11.1994, noticed that the bathroom was locked inside. As tapping for opening has not yielded any result, P.W.18 opened the door forcibly and saw the first accused, who surrendered before the Inspector. Later he was remanded to custody. (vi)Between 06.30 p.m. and 10.30 p.m., P.W.18 conducted inquest in the presence of panchayatdars and also examined eye witnesses, and the result is Ex.P-10. During the investigation at 06.30 p.m., in the presence of P.Ws.4 and 5, he prepared the Observation Mahazar Ex.P2, as well as the Sketch Ex.P20. In addition, he recovered M.O.1 under Ex.P3. After examining the available witnesses, P.W.18 made arrangement for autopsy through P.W.17 under the request Ex.P21. (vii)Dr.Sridhar (P.W.14) on receipt of the requisition Ex.P-21 and upon identification of the body of Palaniappa Chettiar by P.W.17, conducted the autopsy at about 10.00 a.m. on 26.11.1994 which revealed the following external as well as internal injuries: External: 1.Ligature mark 1/2cm width. It runs horizontally from the front of the neck just above the Thyroid Cartilage encircling right side, back and left side of the neck and then to the front of the neck. The impression of the ligature knots could be visualised at the centre of the back of the neck. The base of the ligature mark is pale. Edges of the ligature mark is ecchymosed. 2.Abrasion of 2cm over right knee. 3.Three abrasions of varying sizes over left leg below knee. Internal: Underlying subcutaneous tissue of ligature mark during exploration contains dark coloured fluid blood. Hyoid: Fracture of right side horn at its junction with the body. Trachea and Larynx: Intact and inner surface is congested. Tongue: Bite teeth marks present over anterior 1/3 of the tongue. Ribs: Intact. Lungs: Highly distended and congested. On cut section dark coloured blood seen. Heart: Cavity contains about 10ml of dark coloured blood. Carotid: Sheeth, ruptured both sides. Abdomen, Liver, Spleen, Kidneys: Congested. Stomach: Contains partially digested food particles about 500 gms. Intestines: Congested, distended & filled with gas. Bladder: Empty Testes: Normal Head: Scalp intact. Reninges intact; congested. Brain intact. Congested. Base of the skull intact. Cervical vertebra intact. (vii)The Doctor preserving the Hyoid Bone, sent it for pathological report. Pending pathological report of Hyoid Bone, he opined incorporating the injuries in Ex.P-16, that the deceased would appear to have died 20-22 hours prior to autopsy. Ex.P-14 disclosed contusion of soft tissues at the junction of right greater horn with the body (ante mortem) as well as postmortem dislocation of both greater horns. P.W.1 was subjected to medical examination during investigation and the Doctor P.W.13 who examined P.W.1 had noted eight injuries, out of which seven are simple in nature and one is a grievous injury, under Ex.P-15. (ix)P.W.18 in continuation of the investigation examined other witnesses, recorded their statements, then and there. He arrested the first accused on 25.11.1994 and accused 3 and 4 on 29.11.1994. On the basis of the confession given by A-3 and A-4, M.O.2 and M.O.3 and Exs.P-7 and P-8 were recovered from them. In the mean time, the second accused surrendered on 05.12.1994 itself before the Judicial Magistrate. After the arrest, in order to fix the person, who had committed the crime, test identification parade was conducted by P.W.15 at the request of P.W.18, under Ex.P-22. (x)Thiru.P.T.Loganathan, then Judicial Magistrate No.II, Kulithalai on receipt of the request from the Investigating Officer, addressing the jail authorities conducted a test identification parade on 09.01.1995, at about 03.30 p.m. in the Central Pr , Tiruchirappalli, where P.Ws.1 and 3 to 5 have identified the accused 1 to 3 correctly and the result is incorporated in Ex.P-17. The evidence collected by P. W.18, by the examination of the witnesses and other attending circumstances brought to surface, the guilt of the accused as per the opinion of the Investigating Officer, and the result was the final report, leading to the conviction of the accused, after trial as aforementioned, which is under challenge before us. (xi)This appeal is targeted against the above said conviction and sentence, since the convicted accused have felt, that there were no materials warranting conviction, on various grounds. 7. Heard Mr.S.Shanmuga Velayutham, learned counsel appearing for the appellants and Mr.Arul, learned Government Advocate appearing for the respondent. 8. Learned counsel appearing for the appellants submits that the conviction and sentence are not sustainable, on the following grounds viz., 1.that the alleged eye witnesses viz., P.Ws.1, 3, 4 and 5 are strangers to the accused and therefore, there would not have been any possibility for them, to identify the accused at the time of the alleged incident, followed by the identification before the Court; 2.that in the F.I.R. itself, it is not the case of the alleged eye witnesses that the accused are known to them or at least, capable of identification on seeing; 3.that there was no proper identification in the sense, the identification parade was not conducted by the Judicial Magistrate in time and properly also and therefore, on the basis of the alleged identification before the Judicial Magistrate, fixing the appellants as accused, is also not within the reach of the arms of law; and 4. that there is no final opinion regarding the cause for the death of Palaniappa Chettiar that is in the sense it is not proved it is a homicidal violence. Elaborating further, the learned counsel contended that the trial Court has failed to take into note, the above factors, which should certainly cause abrasion over the prosecution case at least creating a reasonable benefit of doubt, which should go to the accused under the normal criminal jurisprudence, clearing the way for acquittal. 9. The learned Government Advocate opposing the above contentions, would submit that the fact P.Ws.1 and 3 to 5 are eye witnesses could not be disputed and therefore, the trial Court has found their evidence worthy of acceptance and the same cannot be erased. He further points out that the eye witnesses have seen the accused at the time of occurrence, since it took place during day light and therefore, it is possible for them to identify before the Judicial Magistrate, though it is belated. He further pointed out, that the opinion given by the Doctor regarding the cause of death in the Cou rt, is not questioned or challenged and therefore, it is too late for the learned counsel for the accused to question the cause of the death of Palaniappa Chettiar. 10. It is also the further submission of the learned Government Advocate, that at the time of the occurrence, admittedly, the defacto complainant viz., P.W.1 also had no knowledge about the names and particulars of the accused and therefore, the non-mentioning of the same in the F.I.R. would not in any way affect the case of the prosecution, since it has been established beyond all reasonable doubts, by unimpeachable evidence. Thus, he supported the reasonings and findings of the sessions Court, convicting and sentencing the accused, as aforesaid and prayed for confirmation of sentence and dismissal of the appeal. 11. In order to appreciate the facts in issue and the controversy as well as the rival contentions raised on behalf of the parties, we have to remember the location of scene of crime, the time of incident, in addition to the residence of some of the eye witnesses. 12. Admittedly, P.Ws.1 and 6 are residing just opposite to the house of the deceased. P.W.1 hearing some noise came out and saw the incident first, whereas P.W.6 had seen the incident, only later point of time. P.W.1 has no animosity against the accused and in fact even according to the defence, he is not so close with the deceased. In fact, it is suggested, that P.W.1 had some animosity against the deceased. In this view, the oral evidence of P.W.1, takes the place of credibility and the same could not be ignored. To presume or infer that P.W.1 is deposing against the accused, in order to escape from the criminality said to have been committed by him, there is no iota of evidence. P.Ws.3 to 5 have no axe to grind against the accused, and in fact, they are also not in any way connected either with P.W.1 or the deceased. In fact, one is a mill worker and another is a painter and another is an Electrician (P.W.5). During the cross-examination, nothing is concretely elicited from these witnesses, to doubt their oral testimony such as it should be motivated or it should be out of fear for the police or due to affection towards the deceased etc., In the absence of any materials to doubt about the presence and genuineness of these eye witnesses, we are inclined to hold that they might have seen the incident and that is why, they have appeared before the Investigating Officer, gave the statements, regarding the facts, what they have seen which was testified later on before the Court also. 13. The learned counsel appearing for the accused is also unable to point out any acceptable materials, in order to say clinchingly, that their evidence are not worthy acceptance and they should be ignored or eschewed as unacceptable, at least on the basis of improbability. In this view, the conclusion of the learned sessions Judge, has to be confirmed, without interference, regarding their witnessing the incident whether the evidence given by them, makes out a case or not, which we will discuss infra. 14. The law was set in motion, on the basis of Ex.P-1 given by P.W.1 . As rightly pointed out by the learned counsel for the appellants, it does not contain the names of the accused. We could not find any fault, because of the admitted fact, that it is not the case of the prosecution that accused are already known to P.W.1, by name or otherwise. In Ex.P-1, it is stated that P.W.1 has seen three persons inside the house of Palaniappa Chettiar; two persons were using rope to strangulate the deceased, whereas another person caught hold of him from behind. The fact, P.W.1 has not given the identification mark or failed to say that he could identify the accused on seeing, would in our opinion, not to cause any cloud over Ex.P-1, to view the same doubtfully. Immediately thereto, as seen from the evidence available on record, Ex.P-1 complaint was given by P.W.1. He would have recorded the image of the accused but in a natural way, he has preferred this complaint without disclosing the same. We do not find any infirmity in the non-mentioning of the names of the accused, or the particulars regarding the identification, that too in view of the fact that the incident had taken place at about 01.30 p.m. At that point of time, one could clearly see a person, who committed the offence and retain his image also in the mind, for reproduction at later point of time. The incident took place at about 01.30 p.m. and complaint was preferred at 02 .30 p.m. On the same day, printed F.I.R. reached the Court without undue delay. In Ex.P-1, the witnesses's names have been specifically stated, including the narration of the incident viz., hearing the noise inside the house of Palaniappa Chettiar, seeing through window, and the actual act of the persons etc. Considering the absence of any delay, a reasonable inference could be drawn is that Ex.P-1 does not contain any imaginary averments, invented against the culprits, whereas it should be held, that it does contain the particulars, which the witnesses have seen and in this view it should be accepted as it is. The trial Court considering this fact, accepted and acted upon Ex.P-1 since it was corroborated by the witnesses also, and we do not find any error either on facts or on law. 15. The learned counsel for the appellants submits, that the prosecution has failed to prove the cause for the death of Palaniappa Chettiar. We are unable to agree with this contention, considering the unquestionable oral evidence of P.W.14. True, as seen from Ex.P-16, no final opinion was given or obtained regarding the cause of death of Palaniappa Chettiar. Ex.P-16 does not say, what is the cause of death of Palaniappa Chettiar, though it reads, the deceased would appear to have died 20-22 hours prior to autopsy. The Hyoid Bone sent for examination also revealed ante-mortem contusion, thereby indicating that at the time of strangulation alone, that kind of contusion of soft tissues at the junction of the right greater horn could have been occurred. The Doctor, who conducted the postmortem, who had seen the report, though failed to give any final opinion whether it is due to inadvertence of the Investigating Officer or not, has opined before the Court that the deceased would have died only due to strangulation and not by committing suicide. In fact, only during the cross-examination, reasons were elicited from P.W.14, narrating unassailable reasons, to come to the conclusion of homicidal violence. The Doctor had noticed knot impression on the back side of the neck as well, on internal examination noticed fracture of right side horn at its junction with the body. Further, he has noticed, at the time of the autopsy, oozing of blood from the nostrils, ear and damage to trachea etc. On the basis of the symptoms, he was of the strong opinion that death would have occurred to Palaniappa Chettiar, only by asphyxia due to strangulation not by hanging himself. The oral evidence of P.W.14, not only rules out the theory of hanging, but also proves that the death was due to asphyxia by strangulation. Because of the only reason, that final opinion was not obtained regarding the cause of death by the Investigating Officer, before laying the final report, we are unable to ignore the oral evidence of P.W.14, which is inspiring and unchallenged. In this view, we conclude, that Palaniappa Chettiyar died only due to homicidal violence and not suicide. Thus, fixing the cause of death of Palaniappa Chettiar, we have to find out, who did this strangulation and the effect of the same. 16. The main thrust of the learned counsel for the appellants is, that P.Ws.1 and 3 to 5 would not have seen the occurrence and their identification of the accused before the Judicial Magistrate is valueless, because of the fact it was not immediately conducted, based on certain judicial precedent. The incident took place on 25.11.1994, at about 01.30 p.m. during day time. Test identification parade was conducted by P.W.15 only on 09.01.1995 i.e. after 44 days. Therefore, according to the learned counsel for the appellants, the alleged eye witnesses, would not have identified the accused, since it is their case that they have seen the accused only once, for few minutes or so. It is the further submission of the learned counsel for the appellants, that the Judicial Magistrate has not properly conducted the identification parade, since he failed to question the accused, before conducting identification parade, such as, whether the witnesses were shown to them or not. 17. All the above witnesses, which we will discuss infra, have categorically deposed without giving a chance for doubt, that they have seen all the accused in the dining hall of the Palaniappa Chettiar's house at about 01.30 p.m., when the occurrence had taken place. When the witnesses have seen the occurrence during day time, the question of identification at later point of time, may not have much significance, because of the fact, the witnesses might have seen the assailants perfectly in the day light. If it is the case of an incident having taken place during night hours, or where there was no feasibility of the witness to see the assailants clearly, then question of identification would take predominant role, that too, in the absence of proper test identification parade. Here, the incident had taken place at about 01.30 p.m. and the witnesses had every chance to see the assailants, perfectly and therefore, later on, even identifying the accused before the Court, would not in our view, create any doubt, in the case of the prosecution even in the absence of Test Identification Parade. The position being so, delayed test identification parade conducted in this case, could not be treated as valuele ss, as alleged by the learned counsel for the appellants. The question of identification would depend upon the intelligence of the witnesses, their mind set up, their viewing the incident, availability of the light, the impression they received and recorded in the mind and their mental capacity for reproduction at later point of time, whether it is on the next day or some time later on. If a crime is noticed, being a special occasion, the mind will be so alert, for some people to catch the figure and print and therefore, if they have identified the person, at a later point of time, after two months or so, only on the basis of the delayed identification, we feel doubting about their credibility, is beyond imagination. In this case, it is not the case of the defence, that there was no light or no possibility of identifying the accused etc., and their case appears to be, that P.Ws.1 and 3 to 5 have not at all seen the occurrence. In this context, we have to see the defence also. 18. It is suggested to P.Ws.1 and 3 to 5, that the accused were shown to the witnesses, just one day prior to the test identification parade, at Manapparai Police Station. Admittedly, the accused were not in the custody of Manapparai Police Station, and in fact they were in the judicial custody, in Central Prison, Tiruchirappalli. Therefore, there would not have been any possibility for the Investigating Officer, to take the prisoners from Central Prison, Tiruchirappalli, to his Police Station just one day prior to the identification parade, in order to show them to the witnesses. This suggestion would show that a desperate attempt was made, to make the test identification parade nullity, since all the witnesses