IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 22-12-2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALILNGAM AND THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH CRL.A.No.587 of 2009 1.Muthuprakash @ Prakash 2.Muruganandham 3.Kumaravel 4.Ramesh 5.Suresh .. Appellants(Accused to 2 to 6) vs State represented by The Inspector of Police Sholavaram Police Station Crime No.141 of 2003 .. Respondent (Complainant) Criminal appeal preferred under Sec.374 of the Code of Criminal Procedure against the judgment of the Principal Sessions Judge, Thiruvallur, made in S.C.No.107 of 2006 dated 28.8.2009. For Appellants : Mr.N.Doraisamy Amicus Curiae for Appellant A-2 Mr.P.Prince Premkumar for Appellants 2,4 & 5 A-3, A-5 & A-6 Mr.V.Krishnamurthy for 3rd Appellant A-4 For Respondent : Mr.Babu Muthu Meeran Additional Public Prosecuror JUDGMENT (Judgment of the Court was delivered by M.CHOCKALILNGAM, J.) This appeal challenges a judgment of the Principal Sessions Division, Thiruvallur, made in S.C.No.107 of 2006 whereby the appellants five in number, along with another arrayed as A-1, stood charged under Sections 148, 341 and 302 read with 149 IPC, tried, found guilty as per the charges and awarded one year Rigorous Imprisonment under Sec.148 read with 149 IPC, three months Rigorous https://hcservices.ecourts.gov.in/hcservices/ Imprisonment under Sec.341 read with 149 IPC and life imprisonment along with a fine of Rs.1000/- and default sentence under Sec.302 read with 149 IPC. 2.Short facts necessary for the disposal of this appeal can be stated as follows: (a) The appellants/A-2 to A-6, A-1 who died pending trial, and also the deceased Ponmani belonged to Gandhi Nagar, Chennai. P.W.1 is the sister's son of the deceased. P.W.2 is the wife and P.Ws.3, 5 and 7 are the sisters of the deceased, while P.W.4 is the daughter, and P.W.9 is the mother of the deceased. They were all residents of the same place. A few days prior to the occurrence, there was a wordy altercation between A-1 and the deceased, and a complaint was given by A-1 to the respondent police station, and the same was treated as a petition and was pending enquiry. (b) On the date of occurrence that was 8.3.2003, at about 8.15 P.M., the deceased was sitting in a chair in front of the house. At that time, P.W.1 reached the house from work. P.Ws.1 to 5, 7 and 9 were all present. At that time, all the accused persons came in three motorbikes, marked as M.Os.3, 4 and 5 respectively, and they were all armed with deadly weapons. It was A-2 who pushed Ponmani down, and when the deceased fell down, all of them surrounded him. It was A-3 who attacked him with an aruval on the shoulder, and A-4 attacked him on the left side of the neck. A-5 and A-6 cut him on different parts of the body. The same was witnessed by all these eyewitnesses. When there was a distressing cry, all the accused persons left in the respective motorbikes in which they came. (c) P.W.18, the brother of the deceased, took the severely injured Ponmani to the Government General Hospital where P.W.28 was the Doctor, who on medical examination, declared him dead. The accident register copy is marked as Ex.P15. On receiving the message that Ponmani died, P.W.1 immediately rushed to the respondent police station and gave Ex.P1, the complaint, on the strength of which P.W.33, the Sub Inspector of Police, who was on duty at that time, registered a case in Crime No.141 of 2003 under Sections 147, 148 and 302 of IPC. The printed FIR, Ex.P21, was despatched to the Court. (d) P.W.35, the Inspector of Police of that Circle, on receipt of the copy of the FIR, took up investigation in the morning hours of 9.3.2003, proceeded to the scene of occurrence, made an inspection and prepared an observation mahazar, Ex.P3, and also a rough sketch, Ex.P24. He recovered material objects from the place of occurrence. Then he went to the mortuary, conducted inquest on the dead body of Ponmani in the presence of witnesses and panchayatdars and prepared an inquest report, Ex.P25. Thereafter, he gave a requisition to the hospital authorities for conduct of autopsy. (e) P.W.34, the Tutor in Forensic Medicine, Madras Medical College, on receipt of the said requisition, conducted autopsy on the dead body of Ponmani and has noticed the following external injuries: "1)Raddish brown abrasion 7x0.5cm over front of left shoulder. https://hcservices.ecourts.gov.in/hcservices/ 2)Incised wound 13x0.3cm x skin deep 2cm above injury No.1. 3)Oblique incised 4x1x0.3cm situated below the neck 1cm away from supra sternal notch on left side. 4)Oblique incised wound 15x0.5cm x skin deep over left side of face cutting the cartilage of ear at the level of upper one-third and lower one-third of left ear exposing the underlying cartilage. 5)Oblique chop wound 16x1cm x bone deep involving left frontal, parietal region of scalp with anterior end 3cm from midline and posterior end in the midline. On opening the scalp, there is underlying cut in the bone 16cm long with depressed fracture in the center 2x0.5cm involving the left frontal and left parietal bone. Dura shows cut 8cm long in the left parietal region. On opening the dura there is a corresponding cut in the brain in the parietal lobe 6x0.5x1cm. 6)Oblique chop wound 11cm long in back of left shoulder 11x1cm x bone deep. On dissection there is a cut in the underlying muscles. 7)Oblique chop wound 12x1cm x bone deep seen over top of left shoulder 5cm from the tip of left shoulder with the previous injury bisecting left posteriorly at the distance of 4cm from the posterior end. 8)Oblique incised wound 10x1cm x muscle deep over front of left shoulder joint with the tailing of downwards and inwards touching the previous injury at its anterior end. 9)Oblique incised wound 6x1x1.5cm over the back of right shoulder joint 12cm from the midline with the tailing of 6cm directed outwards and downwards. 10)Oblique incised wound 10cm long bevelling of skin x muscle deep seen over back of neck on left side. 11)Laceration 3x2cm x skin deep above the injury No.10. 12)Oblique chop wound 11x5cm x bone deep over outer aspect of left knee joint with tailing of upwards and inwards. 13)Reddish brown abrasion 11x0.5cm over outer aspect of left buttock. 14)Reddish brown abrasion 11x0.5cm over left side of abdomen extending from umbilicus upwards. 15)Oblique incised wound 8x0.5cm x bone deep over left side of front of neck 6cm above supra sternal notch, 10cm from left mastoid process. On dissection the underlying muscles are found severed. On further dissection, carotid sheet is found cut with the severance of carotid artery, jugular https://hcservices.ecourts.gov.in/hcservices/ vein and phrenic nerve. On further dissection, trachea is found severed at the level of thyroid cartilage. On further dissection, there is a nick in the body of 4th Cervical Vertebra. 16)Incised wound 3x0.5cm x skin deep over outer aspect of left elbow joint. 17)Incised wound 3x0.5cm x skin deep on the inner aspect of right elbow joint." The Doctor has issued a postmortem certificate, Ex.P23, with his opinion that the deceased would appear to have died of shock and haemorrhage due to multiple injuries. (f) Pending investigation, the Investigator arrested A-1, A-2, A-3, A-4 and A-6 on 9.3.2003, in the presence of P.Ws.22 and 23. They volunteered to give confessional statements. The admissible parts of the confessional statements are marked as Exs.P26, P28, P30, P32, P33 and P34 respectively. Pursuant to the same, they produced M.Os.9, 10, 11, 12 and 13, aruval and vettukathi respectively, which were recovered under respective mahazars. They were sent for judicial remand. (g) A-5 was arrested on 23.3.2003, when he came forward to give a confessional statement. The same was recorded, and the admissible part is marked as Ex.P19, pursuant to which he produced M.Os.3, 4 and 5, motorcycles, which were recovered under a cover of mahazar. He also produced a knife, M.O.6, which was recovered under a cover of mahazar. (h) Pursuant to the requisition made, all the material objects recovered from the place of occurrence and from the dead body, and the weapons of crime recovered from the accused on production pursuant to the confessional statements, were actually subjected to chemical analysis by the Forensic Sciences Department, which brought forth Ex.P43, the chemical analyst's report, and Exs.P42 and P44, the serologist's reports. P.W.36, the Inspector of Police, took up further investigation and on completion of the same, 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 examined 36 witnesses and also relied on 44 exhibits and 18 material objects. On completion of 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 on either side and took the view that the prosecution has proved the case beyond reasonable doubt and hence found the appellants guilty and awarded punishments as referred to above. The charges stood abated as against A-1 since he died pending trial. Hence this appeal at the instance of the appellants. https://hcservices.ecourts.gov.in/hcservices/ 4.Advancing arguments on behalf of A-2, the learned Counsel Mr.N.Doraisamy would submit that in the instant case, the prosecution marched P.Ws.1 to 5, 7 and 9 as eyewitnesses; that admittedly, they are all closely related to the deceased and hence they are all related witnesses; and that if the careful scrutiny test is applied, in view of the inconsistencies among the evidence and also self- inconsistency within the evidence, their evidence should have been discarded. 5.Added further the learned Counsel that even as per the prosecution case, there was a wordy altercation a few days prior to the occurrence, between A-1 and the deceased, and A-1 gave a complaint before the respondent police, and the same was also pending enquiry; that under the circumstances, the motive even as per the prosecution was only attributed to A-1 as against the deceased; that all other accused had no motive at all; and that it would be quite clear that they have been added as per the desire of the prosecution witnesses. 6.The learned Counsel would further submit that it was P.W.18, the brother of the deceased, who took the deceased to the hospital, and he was examined by P.W.28, the Doctor, who has issued Ex.P15, the accident register copy; that a perusal of the same would clearly indicate that only three known persons participated in the crime; that now the prosecution came forward with a case that six persons were involved in the ofence; that the explanation that was tendered by the prosecution was that P.W.18 at the time of occurrence was not available at all; and that this contention of the prosecution should not be accepted by the Court for the simple reason that according to the evidence of P.W.3, P.W.18 was also present at the time of occurrence. 7.Added further the learned Counsel that in the instant case, as per the evidence of the witnesses, the deceased was actually sitting in a chair in front of the house; but, neither the chair was recovered, nor it finds place in the observation mahazar or the rough sketch; that it would be quite clear that the same was also fatal to the prosecution case; that apart from that, there was a huge and inordinate delay in FIR reaching the Court; that even as per the accident register copy, Ex.P15, the occurrence has taken place at about 7.40 P.M.; that according to the FIR, the time of occurrence is shown as 8.15 P.M.; that according to P.W.33, the Sub Inspector of Police, who registered the case, the FIR was handed over to the Constable immediately, and he went over to the Judicial Magistrate to hand over the same, and he returned that night itself; that the endorsement made by the Judicial Magistrate in the FIR, would indicate that it has reached the Court only at 9.30 A.M. on the next day i.e., 9.3.2003; that the prosecution had no explanation to offer; that this would clearly indicate that the FIR could not have come into existence as put forth by the prosecution at about 9.45 P.M. on 8.3.2003; that there are lot of discrepancies in the evidence of the so-called eyewitnesses; that all would clearly indicate that they could not have seen the occurrence at all, and hence the prosecution has miserably failed to prove its case and he is entitled for acquittal. https://hcservices.ecourts.gov.in/hcservices/ 8.Advancing arguments on behalf of A-4, the learned Counsel Mr.V.Krishnamoorthy would submit that in the instant case, number of persons who are actually involved in the crime is found to be discrepant; that the accident register copy would indicate only three persons; but, the prosecution case is six persons; and that in such a situation, it would cast a doubt on the entire prosecution story. He would further state that his contention is supported by a decision of the Division Bench of this Court reported in 2005-2-L.W. (CRL.) 787 (SUBRAMANI @ MANIAN V. SUBRAMANIAN). 9.Added further the learned Counsel that as far as the scene of occurrence is concerned, it is highly doubtful; that the name of A-4 is actually Kumaravel; that in the FIR his name is shown as Kumaravel; but, P.Ws.1 and 3 who were claimed to be the eyewitnesses, have given evidence before the trial Court that A-4 is only Kumar; that under the circumstances, the name of A-4 is found to be discrepant; that it would also be indicative of the fact that it was not he who was involved in the crime; that P.W.9, the mother of the deceased, would claim that she was an eyewitness; but, on the contrary, P.W.12, the son-in-law of P.W.9, has categorically stated that at the time of occurrence, P.W.9 was well available in his house, and thus she could not have been in the place of occurrence at all; and that in such circumstances, the evidence of P.W.9 should have been discarded by the trial Court. 10.Added further the learned Counsel that as far as P.W.16 was concerned, he has turned hostile; that as far as the other witnesses are concerned, the evidence of the Investigating Officer regarding the registration of the case, commencement of investigation, preparation of the observation mahazar and sketch and recording of statements all are found to be thoroughly discrepant and also inconsistent with the other part of the evidence put forth by the prosecution; that as far as the recovery of motorbikes is concerned, the prosecution examined P.Ws.22 and 23; that both have turned hostile and they have not supported the prosecution case; that once the recovery of the motorbikes could not be proved by the prosecution, it would also cast a reasonable doubt on the story of the prosecution that all the accused came in three motorbikes and returned by the same; that all would go to show that the prosecution has miserably failed to prove its case, and hence A-4 is entitled for acquittal. 11.The learned Counsel appearing for A-3, A-5 and A-6 adopted the above arguments. Further he would add that the evidence was inconsistent not suiting with the prosecution story, and hence they were all entitled for acquittal in the hands of this Court. 12.The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made. 13.It is not in controversy that one Ponmani, in an incident that had taken place at about 8.15 P.M. On 8.3.2003, was done to death, and he was taken to the hospital by P.W.18 one of the relatives namely brother. He was declared dead by P.W.28, the https://hcservices.ecourts.gov.in/hcservices/ Doctor. The accident register copy is Ex.P15. As far as the time of occurrence and also the cause of death as put forth by the prosecution are concerned, they were questioned before this Court by the learned Counsel for the appellants, and they have not even raised any little finger before the trial Court. Following the inquest made on the dead body by P.W.35, the Inspector of Police, it was subjected to postmortem by P.W.34, the Doctor, who has given a categorical opinion before the Court as a witness and also through the contents of the postmortem certificate that Ponmani died out of shock and haemorrhage due to multiple injuries. Hence, it would be quite clear that the prosecution has brought forth sufficient evidence to record a finding that Ponmani died out of homicidal violence. 14.In order to establish that all the accused persons namely the appellants herein along with the other ranked as A-1, came in three motorbikes and attacked Ponmani at the time and place of occurrence, the prosecution examined P.Ws.1 to 5, 7 and 9 as eyewitnesses. It is also true that as narrated above, they are all closely related to the deceased. This Court is not unmindful of the caution made by the Apex Court and also by the settled principles of law that before accepting the evidence of a witness who is related to the deceased, the Court must apply the careful scrutiny test. The Court must also point out that to accept the evidence of the relations, there is no bar or ban in law. But the Court must apply the above test. In the case on hand, among the witnesses marched, as rightly pointed out by the appellants' Counsel, the presence of only one witness namely P.W.9, the mother of the deceased, at the time of occurrence is doubtful in view of the evidence of P.W.12 that she was present in his house at that time. Except P.W.9, all other witnesses are inmates of the house, and naturally they should have been present and that too at about 8.00 or 8.30 P.M. when the occurrence has taken place. All these witnesses have clearly spoken not only about the time of occurrence, but also about the fact that the deceased was actually sitting in a hair in front of the house, and P.W.2, the wife of the deceased, got inside to get a cup of water for him, and before her arrival, all the persons were found surrounding him, and they have all attacked him indiscriminately. 15.The learned Counsel for the appellants made much comment on the contents of the accident register copy, Ex.P15, that only three known persons are involved. But, at this juncture, it is pertinent to point out that the evidence of P.W.18 would clearly indicate that he was not an eyewitness, and he was only informed about the occurrence. In such circumstances, as far as the contents of the accident register copy are concerned, this Court is of the considered opinion that it cannot be given any weight in the face of the evidence of the eyewitnesses who were present and witnessed the occurrence. Apart from this, the ocular testimony projected through these witnesses stood fully corroborated by the medical opinion canvassed. The postmortem certificate would clearly indicate that there were number of external cut injuries throughout the body, and he actually succumbed to those injuries immediately. 16.Apart from the above, A-1, A-2, A-3, A-4 and A-6 were arrested the next day, and they came forward to give confessional statements. They were all recorded in the presence of witnesses, and https://hcservices.ecourts.gov.in/hcservices/ the admissible parts are also marked as Exs.P26, P28, P30, P32, P33 and P34 respectively. They have produced M.Os.9, 10, 11, 12 and 13, aruval and knife respectively, which were the weapons of crime. M.O.6, knife, was also recovered on production by A-5. Thus, the recovery of weapons of crime from the accused on production pursuant to the confessional statements and that too as spoken to by the witnesses would clearly be indicative of the nexus of the crime with the accused. Now a comment was made by the learned Counsel that as far as the recovery of the motorbikes, M.Os.3, 4 and 5, is concerned, P.Ws.22 and 23 have turned hostile. Even after barring that evidence, the prosecution has sufficient evidence in its hand pointing to the guilt of the accused. 17.As far as the comment made by the learned Counsel that there is discrepancy as to the time of occurrence since it is found in the accident register copy as 7.40 P.M. and as per the FIR it is 8.15 P.M., is concerned, it cannot make much of the matter. Even P.W.33, the Sub Inspector of Police, has categorically stated that it was he who received Ex.P1, the complaint, and registered the case at a particular point of time wherein the entire incident is narrated. Now, this Court is able to see delay in the FIR reaching the Court. At this juncture, the learned Counsel for the appellants pointed to the evidence of P.W.33, the Sub Inspector of Police, stating that the Constable who took the FIR to the Judicial Magistrate, returned that night itself at about 11.00 P.M. This Court is of the view that the evidence of the Sub Inspector of Police is found to be so careless for the simple reason that when the FIR is looked into, the Judicial Magistrate has initialed at about 9.30 A.M. on the next day namely 9.3.2003. It is true that there is a delay. But, this delay in FIR reaching the Court by itself cannot be a reason to doubt or reject the prosecution story or its case. 18.It is also true that there are discrepancies brought to the notice of the Court among the witnesses. But, it is settled proposition of law that once they are found to be minor most, no importance could be attached or it will not tilt the balance or take away the rigor of the prosecution case. 19.Another point that was raised by the learned Counsel was that a few days prior to the occurrence, following the wordy altercation, A-1 went to the respondent police station and gave a complaint, and the same was pending enquiry, and hence A-1 alone had got motive against the deceased. This Court is of the view that once all the other accused persons have followed A-1, what made the other accused persons to follow A-1 at the time of occurrence should be well within the knowledge of those accused persons, and it cannot be or need not be explained by the prosecution. Under the circumstances, all the contentions put forth by the learned Counsel for the appellants as narrated above do not carry any merit or merit acceptance by the Court, and the prosecution had sufficient evidence pointing to the guilt of the appellants/accused that all of them pursuant to the common object, proceeded to the spot, and they have actually attacked him and caused his death. 20.As far as A-2 is concerned, the learned Counsel would submit that no overt act is attributed to him, and what are all attributed https://hcservices.ecourts.gov.in/hcservices/ by the prosecution against him was that he pushed the deceased down from the chair. But the prosecution case that they formed an unlawful assembly, and in furtherance of the common object, all of them armed with deadly weapons have gone to the house of the deceased and that too during night hours and attacked him indiscriminately and caused instantaneous death would clearly indicate that they have acted in furtherance of the common object. The prosecution was successful enough in bringing them under Sec.302 read with 149 IPC. The trial Court has marshaled the evidence proper, considered the same and found them guilty as per the charges and rightly too. Nothing is available for the appellants to disturb the judgment either factually or legally. 21.In the result, this criminal appeal fails and the same is dismissed confirming the judgment of the trial Court. Mr.N.Doraisamy, Advocate, appointed as Amicus Curiae to argue the appeal on behalf of A-2, is entitled to get remuneration from the Legal Aid, Madras. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar nsv To: 1.The Principal Sessions Judge, Thiruvallur 2.The Inspector of Police Sholavaram