In the High Court of Judicature at Madras Date : 28..02..2008 Coram : The Hon'ble Mr. Justice D. MURUGESAN and The Hon'ble Mr. Justice V. PERIYA KARUPPIAH Criminal Appeal Nos: 118 of 2007 and 758 of 2006 1.Manimaran @ Auto Mani 2.Antony .. Appellants in Crl.A.118/07 (Accused No.1 and 2) 1.palani 2.Vinod 3.Anthony @ Anthoniraj .. Appellants in Crl.A.758/06 (Accused No.3 to 5) Vs. State rep. By Inspector of Police, K-1, Sembium Police Station, Chennai. .. Respondent in both Crl.As. (Complainant) Appeals filed against the judgment in S.C.No.188 of 2005 dated 29.07.2005 passed by the learned Additional District and Sessions Judge (Fast Track Court No.1), Chennai. For Appellants in Crl.A.No.118/07 :Mr.N.Doraisamy For Appellants in Crl.A.No.758/06 :Mr.N.Doraisamy Amicus Curiae For Respondent :Mr.P.Kumaresan Additional Public Prosecutor C O M M O N J U D G M E N T (Judgment of the Court was delivered by V. Periya Karuppiah, J.) The appeals are directed against the judgment passed by the Additional Sessions Judge-cum-Fast Track Court-I Judge, Chennai, dated https://hcservices.ecourts.gov.in/hcservices/ 29.07.2005, in S.C. No: 188 of 2005 by A.1 and A.2 in Crl.A.No.118 of 2007 and by A.3 to A.5 in Crl.A.No.758 of 2006 respectively. By the said judgment, A.1 to A.5 were convicted and sentenced as follows:- Accused Offence Sentence A.1 and A.2 Under Section 302 I.P.C. Life Imprisonment with a fine of Rs.5,000/- each and in default to undergo one month RI A.3, A.4 and A.5 Under Section 304(II) of I.P.C. 10 years R.I with a fine of Rs.1,000/- each and in default to undergo one month RI. (a)As A.1 and A.2 have been sentenced to undergo life imprisonment, the trial Court though found them guilty under sections 147 and 506(ii) I.P.C., it had not given any sentence separately. (b)As A.1 and A.2 have been sentenced to undergo life imprisonment, the trial Court though found them guilty under sections 147 and 506(ii) I.P.C., it had not given any sentence separately. Likewise for A.3, A.4 and A.5 also the trial Court had not granted any sentence separately for the offence under Section 147 I.P.C. 2. The case of the prosecution is that, on 31.01.2005 at about 4.30 p.m., A.1 to A.5 along with yet another juvenile accused namely Vasu, with an intention to murder one Nazar @ Mani, on the motive of previous enmity, near the thorny bush behind the Perambur Railway station bridge and near the culvert, had unlawfully assembled and in pursuance of the said common intention, when A.3 and A.4 had held the legs of Nazar; A.5 and the juvenile accused Vasu held the hands of Nazar A.2 had caught the head with the hairs of Nazar and A.1 with the use of the new blade had cut the neck of Nazar and all the accused had thus caused the death of Nazar. When the witness Velu had been found at the scene of occurrence, the accused had threatened him with the dire consequences by showing the blade to him and thereby caused criminal intimidation against the said witness. 3.The trial Court had examined P.Ws 1 to 18, produced Exs.P.1 to P.20 and M.Os 1 to 6 in support of the prosecution case and had come to the conclusion that the prosecution had proved all the charges beyond any reasonable doubt and had convicted A.1 to A.5 and sentenced them on the charges framed against them. 4.The case of the prosecution as spoken to by the prosecution witnesses are as follows:- P.W.1 is the complainant. He resides at Thiruvallur Salai, Perambur. He would depose in his evidence that on 02.02.2005 at about 11.00 a.m., he went to the thorny bush near the Perambur Railway Bridge near the Culvert in order to answer the call of nature. Near the thorny bush, he saw one person lying, he went near him and found that he was dead due to https://hcservices.ecourts.gov.in/hcservices/ the injury sustained on the neck. He further deposed that he knew the deceased Nazar. Immediately he went to the Police Station and lodged the complaint, Ex.P.1 – First Information Report. 5. P.W.2 is an eye witness in this case. He deposed in his evidence that on 31.01.2005 at about 4.30 p.m., when he was proceeding to meet his friend near Perambur Carriage, due to stomach pain, he went to the thorny bush to answer the calls of nature. He saw the accused along with Juvenile accused by name Vasu and the deceased Nazar near the thorny bush and he was shocked to see that A.1 to A.5 and the juvenile accused were indulging in killing the deceased Nazar. He further deposed that during the course of occurrence, A.3 and A.4 caught hold the legs of the deceased; A.5 and the juvenile accused were holding the hands of the deceased and further, A.2 had caught hold of the hair of the deceased and A.1, with the new blade, had cut the neck of Nazar as if he is cutting the neck of a goat. He also deposed that he was very much shocked after seeing the occurrence and was suffering from illness for three days. He saw the report in the News Paper and only thereafter, he immediately approached the Police and informed about the occurrence. 6.The said complaint was registered by P.W.17-the Inspector of Police, Sembium Police Station, under Crime No.340 of 2005 for the offence under Section 302 I.P.C., He prepared the Express First Information Report-Ex.P.18 and immediately sent the same to the Court and to his higher officials. Then, he went to the scene of occurrence and prepared observation mahazar and rough sketch-Ex.P.19. Thereafter, he examined the witnesses and recorded their statements in the presence of Panchayatdars. Further, P.W.18-the Investigating Officer took the case on file in Crime NO.340 of 2005 and arrested A.4 and A.5 on 05.02.2005 at 6.00 p.m. On 06.02.2005 at about 1.30 p.m., he arrested A.1 near the Perambur Bus stop. Further he recorded the confession statements of the said accused. A.1 identified M.O.6 – blade. Thereafter, he remanded the accused to under judicial custody. He sent M.O.6 to the Forensic Department. He arrested A.3 on 07.02.2005 at 13.30 hours when he was admitted in the Stanley Hospital. He arrested A.2 also. Finally, he completed investigating and filed a charge sheet against A.1 to A.5 for the offence under Sections 147, 302 and 506(ii) I.P.C., and filed a separate charge sheet as against juvenile accused Vasu. 7.When the accused were questioned under Section 313 of Cr.P.C., they have come forward with the version of total denial and stated that a false case was foisted against them. 8.The prosecution has examined P.Ws.1 to 18 and had produced Exs.P.1 to P.20 and M.Os 1 to 6, in order to substantiate its case. The trial Court had scrutinised the evidence adduced both oral and documentary and the Material Objects and had come to the conclusion that the accused in both the Sessions Cases are guilty of the charges framed against them, https://hcservices.ecourts.gov.in/hcservices/ against which, A.1 and A.2 in S.C.No.188 of 2005 had preferred the appeal in Crl.A.No.118 of 2007 and, A.3 to A.5 in S.C.No.188 of 2005 had preferred the appeal in Crl.A.No.248 of 2007. 9.Mr.N.Doraisamy learned counsel for the appellants in Crl.A.No.118 of 2007 who also acted as Amicus Curie as appointed by this Court in Crl.A.No.758 of 2006 would submit that the prosecution had miserably failed to prove the case against all the accused. The trial Court had mechanically awarded the conviction without looking into the merits and demerits of the oral and documentary evidence. He would further submit that the so called eye witness-P.W.2 had not spoken about the occurrence in detail and his evidence is also not natural, since it was not possible that he could clearly witness the occurrence, at the time he was of answering the call of nature. He would further submit that P.W.2, if really had witnessed the occurrence, he might have given a complaint to the Police immediately and there was no acceptable reason stated by P.W.2 for not giving any complaint immediately after the occurrence. The alleged injury caused on the right side neck of the victim was described as a cut injury and admittedly, there was no knife involved in the occurrence. In such circumstances, how a blade would cause a cut injury should have been explained by the trial Court before passing the order of conviction. Further, the learned counsel would submit that the alleged threatening said to have been caused by the accused against P.W.3 was also a false one and if really he was threatened by the accused he ought to have given a complaint against the accused to the Police. The learned counsel for the appellants would also submit that the prosecution has not proved any motive for the alleged occurrence and the trial Court had also not looked into the material contradiction of medical evidence and the prosecution witnesses. It is further argued that the alleged confession statements given by A.1 and A.2 were falsely created and the recovery of alleged blade on the basis of confession of A.1, were managed to be produced with the help of a stock witness by the police. Apart from that, the learned counsel for the appellants would submit that the trial Court had not looked into the contradictions of the witnesses which are favourable for the appellants and if it is considered by the trial Court, the appellants should have been given benefit of doubt by holding that the prosecution has not established its case beyond all reasonable doubts. Therefore, the learned counsel for the appellants submitted that A.1 to A.5 are innocent persons and there was no motive for them to commit murder of said Nazar. The murder of Nazar was foisted by the Police on A.1 to A.5 and therefore, the conviction and sentence passed by the trial Court against A.1 to A.5 may be set aside and both the appeals may be allowed. 10.The learned Additional Public Prosecutor Mr.V.R.Balasubramanian would submit that the evidence produced in respect of the motive and the circumstances by the prosecution to prove the case are natural and would go a long way to show that the prosecution had proved its case against A.1 to A.5 beyond all reasonable doubts and therefore, the conviction https://hcservices.ecourts.gov.in/hcservices/ and sentence passed by the judgment of the trial Court is perfectly alright. He would further submit that the circumstances of the case would go to show that the eye witness-P.W.2 who spoke about the incident could speak to that extent only and he cannot speak the entire sequences of the occurrence since he was answering the call of nature at that time and his evidence was supported by P.W.3-Velu who was seen by the accused at the scene of occurrence and the accused also threatened him with dire consequences. The sequence of the occurrence as spoken to by P.W.2 is true and certainly every person who witnessed such a gruesome murder could fall ill or attain shock over the incident and may not act for some time and therefore, the explanation given by P.W.2 that he was ill on seeing the gruesome incident and that on seeing the news paper only he had gone to the police station and reported the same, which is also a natural one and the same could be accepted. He would also further submit that the motive as spoken to by P.W.4, the wife of the deceased Nazar was denied by the accused in their cross examination, but P.W.4 was firm in her evidence that the enmity grown against her husband Nazar was due to the attitude of deceased Nazar over the wife of A.1 and his sister could not be tolerated and therefore, A.1 and A.2 with other accused had planned to murder Nazar and her evidence would clearly prove the motive aspect. Therefore, he would further submit that the ocular evidence coupled with the circumstantial evidence produced by the prosecution through the confession statements leading to recovery of the blade and when the medical evidence also supported the evidence of the prosecution and the reports of chemical examination and the Scientific Expert would also go a long way to prove the case of the prosecution beyond all reasonable doubt and therefore, there is no infirmity in the judgment of the trial Court in convicting all the accused on the charges framed against them and therefore, both the appeals have no merits and the same may be dismissed. 11.We have given our anxious thoughts over the arguments advanced by the learned counsel for the appellants in both the cases and the learned Additional Public Prosecutor. 12.The prosecution case is that A.1 to A.5 along with one juvenile accused namely Vasu had taken the deceased Nazar behind the Perambur railway station bridge under the culvert on the thorny bush side and murdered the said Nazar on the previous enmity and in that process A.3 and A.4 had caught hold of the legs of Nazar; A.5 and the juvenile accused Vasu caught hold of the hands of Nazar; A.2 had caught the head with the hairs of Nazar and A.1 with the use of the new blade had cut the neck of Nazar and thus, all the accused had caused the death of Nazar. The prosecution had produced P.W.2 who is an eye witness. On a careful perusal of his evidence, we could see that on the fateful day, on 31.01.2005, at about 4.30 p.m., when he was sitting behind a thorny bush, in the railway track, behind Perambur railway bridge and the culvert, in order to answer the call of nature, he was shocked to see that A.1 to A.5 and the juvenile accused one Vasu were indulged in https://hcservices.ecourts.gov.in/hcservices/ killing one Nazar and A.3 and A.4 were holding the legs of the deceased Nazar A.5 and the juvenile accused Vasu were holding the hands of Nazar; A.2 had caught the head with the hairs of Nazar and A.1 with the use of the new blade had cut the neck of Nazar as if he is cutting the neck of a goat. He would also state that he was very much shocked after seeing the occurrence and he was suffering from illness for three days and thereafter, when he saw the report in the news paper, he had approached the Police and informed about the occurrence. 13.Similarly, the evidence of P.W.3 would go to show that his presence was noticed at the end of the commission of offence by A.1 to A.5 and the juvenile accused Vasu at the scene of occurrence had threatened him that he should not disclose about the incident to anybody and therefore, he could not disclose the occurrence to the police. If really the incident had happened at the place where P.W.2 and P.W.3 had seen, it would certainly be a shocking one and therefore, the explanation given by P.W.2 and P.W.3 for reporting the police, belatedly could be accepted. When the explanation of P.W.2 and P.W.3 for not approaching the police immediately after seeing the occurrence is accepted, the evidence of P.Ws2 and 3 could be safely relied upon. Now we have to see whether such a evidence could be relied upon with the other circumstantial evidence produced by the prosecution. The prosecution had also produced the confession statements of A.1, A.2 , A.3 and A.5 after the arrest effected against them. The confession leading to recovery under Section 27 of the Indian Evidence Act, given by A.3, was spoken by P.W.13. P.W.14 had spoken about the confession given by A.2. The admissible portion of the confession of A.3 and A.2 were marked as Exs.P.13 and P.14. Similarly, the confession statements given by A.4 and A.5 was spoken to by P.W.16 and the same was marked as Ex.P.17. The confession of A.1 leading to recovery under Section 27 of the Evidence Act, was spoken to by P.W.15 and the admissible portion of the same is Ex.P.15. P.W.15 had also spoken about the blade seized under the Mahazar used for the commission of offence in pursuance of the confession statements. The said seizure Mahazar was signed by P.W.16 and the same was marked as Ex.P.16. The blade contained blood stains was marked as M.O.6. The argument advanced by the learned counsel for the appellants was to the effect that the prosecution witnesses are the police witnesses and therefore, their evidence cannot be relied upon. The said argument may not be significant because there was no instance put forth in the form of suggestions made by the defence to the said witnesses about their conduct. Therefore, it cannot be said that the witnesses namely P.Ws.13 to 16 are stock witnesses of the police. The evidence of P.W.15 on the confession of A.1 would lead to the recovery of the blood stained blade, M.O.6. The evidence of the Doctor-P.W.6 who conducted Autopsy on the body of the deceased Nazar would go to show that the injuries sustained by the deceased around his neck could be caused by a blade, when M.O.6 was not produced into the Court and a sample blade was shown to him. Therefore, it cannot be said that the cut injury around the neck of the deceased Nazar should have been caused by https://hcservices.ecourts.gov.in/hcservices/ a weapon like Aruval. The learned counsel would submit that the alleged cutting through blade done by A.1 around the neck should have been caused by a heavy weapon. We have already seen that P.W.6-Doctor opined that the neck injury could have been caused by a blade. Therefore, the argument advanced by the learned counsel for the appellants that M.O.6 could not be a weapon to cause such a big injury to cause the death of the deceased cannot be sustained. 14.The blade, blood stained clothes of the deceased were identified by P.W.4 and they were produced as M.Os.1 and 2. The said cloths and M.O.6 blade were sent for chemical examination along with other material objects and the evidence of P.W.8 Scientists, in her report Ex.P.7 would show that the blade contained in M.Os.1 and 2 shirt and lungi were belonging to the deceased and the blade M.O.6- the weapon used in the offence were found to have contained the human blood group “O” of the deceased Nazar. The said scientific evidence coupled with the recovery of M.O.6 blade on the basis of confession given by A.1 would go a long way to show the active involvement of A.1 in the said offence of committing the murder of Nazar. The evidence of P.W.4, the wife of the deceased would categorically prove that A.1 and A.2 are brothers and they were inimically disposed of against her husband since her husband was having some intimacy with the wife and sister of A.1. It is also spoken to by P.W.4 that A.2, the brother of A.1 had threatened her to have illegal intimacy and in certain times, he had some illegal relationship with her and her husband who witnessed the said incident was also ill-disposed against A.2 and the said enmity also grew in between A.1 and A.2 on the one hand and the deceased Nazar on the other hand. The said motive as spoken to by the wife of Nazar, P.W.4 was not assailed by the accused by any question put to her in the cross examination. Therefore, the motive, the circumstantial evidence of recovery of M.O.1 from A.1 and other admissible portions of confession statement given by A.2 to A.5 regarding the disclosure of the place of occurrence and the scientific evidence on M.O.6, the blade which was alleged to have been used in the crime against Nazar would go a long way to confirm the ocular evidence given by P.Ws.2 and 3. The eye witnesses in respect of such incident should have been to the extent as given by P.W.2 and 3 and they are considered to be natural evidence. Therefore, the reliance placed by the trial Court on the prosecution witnesses and the circumstantial evidence in roping A.1 to A.5 in the crime and the consequent conviction against all of them under the charges framed against them appears to be sound. Therefore, we are of the considered view that the prosecution had proved the guilt of A.1 to A.5 as charged against them beyond any reasonable doubt. Therefore, we have no ground to interfere with the conviction and sentence passed by the trial Court against A.1 to A.5. 15.In fine, the judgemnt of the trial Court convicting A.1 and A.2 for the offence under Sections 302 I.P.C., and sentencing them to undergo Life Imprisonment for the said offence and also to pay a fine of https://hcservices.ecourts.gov.in/hcservices/ Rs.5,000/- each and in default to undergo one month rigorous Imprisonment and convicting A.3 to A.5 and sentencing them to undergo 10 years rigorous imprisonment each and also to pay a fine of Rs.1,000/- and in default to undergo one month rigorous imprisonment for the offence under Section 304 (ii) I.P.C., only, are confirmed and both the appeals are dismissed. 16.It is reported that A.1 and A.2 in Crl.A.118/07 are already in jail and A.3 to A.5 are on bail. Hence, the trial Court shall secure the presence of A.3 to A.5 in Crl.A.758/06 forthwith to enable them to undergo the remaining period of sentence. 17.The Tamil Nadu State Legal Services Committee is directed to pay appropriate fees to Mr.N.Doraisamy, Learned Amicus Curiae appointed by this Court in Crl.A.No.758 of 2006. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar jbm To 1.The Additional District and Sessions Court, Fast Track Court No.1, Chennai. 2.Principal Sessions Judge, Chennai. 3.The Chief Metropolitan Magistrate, Villupuram. 4.The Superintendent, Central Prison,Chennai. 5.The Public Prosecutor, High Court, Chennai. 6.The District Collector, Chennai. 7.The Director General of Police, Chennai. 8.The Inspector of Police K-1, https://hcservices.ecourts.gov.in/hcservices/ Sembium Police Station, Sembium, Chennai. 9.The Member Secretary, High Court Legal Services Committee, Chennai – 600 104. 1 cc to Mr.N. Doraisamy, Advocate (SR.No.10846) JRG (CO) Crl.A.Nos.118 of 2007 and 758 of 2006 MMP 12.3.08 https://hcservices.ecourts.gov.in/hcservices/ 28.02.2008 https://hcservices.ecourts.gov.in/hcservices/