IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 07.01.2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE M.VENUGOPAL CRIMINAL APPEAL NO.474 OF 2008 1.Lakshmanan 2.Rajini .. Appellants Vs. The State represented by Inspector of Police, Ulundurpet Police Station, Ulundurpet, Villupuram District. (Crime No.557/2004) .. Respondent This criminal appeal has been preferred under Section 374(2) Cr.P.C. against the judgment of the learned Principal Sessions Judge, Villupuram, Villupuram District made in S.C.No.164 of 2005, dated 25.04.2008. For Appellants : Mr.K.G.Senthilkumar For Respondent : Mr.P.Kumaresan, APP JUDGMENT (The judgment of the Court was delivered by M.CHOCKALINGAM, J.) Challenge is made to the judgment of the Principal Sessions Division, Villupuram made in S.C.No.164 of 2005, whereby the appellants herein stood charged under Section 302 r/w S.34 IPC, tried and found guilty as per the charges and awarded life imprisonment each and to pay a fine of Rs.2000/- each, in default to undergo three months R.I. 2.The short facts necessary for the disposal of this appeal can be stated as follows: https://hcservices.ecourts.gov.in/hcservices/ a)P.Ws.1 and 2 are the parents of the deceased Kumar. P.Ws.3 to 5 are the neighbours. The house of the accused is situated behind the house of P.W.1. P.W.1 and his son Kumar were employed in Bangalore and that they returned and were staying in their native village during the relevant time. P.W.2 was propagating that the members of the accused family were indulging in petty thefts and thus, there was quarrel often. On the date of occurrence, i.e. on 18.08.2004 at about 7.00 p.m., the accused pelted stones on the house of the deceased and it was questioned by P.W.2. The first accused abused her and P.W.1 pacified her. But, the accused did not stop the same. On hearing the noise, the deceased came there and questioned the conduct of the accused. Immediately, the first accused attacked the deceased with the stone on his forehead, while the second accused attacked him with the stick on his head. Immediately, he fell down and died. The accused fled away from the place of occurrence. b)P.W.1 proceeded to the respondent police station, where the Sub Inspector of Police was present, to whom P.W.1 gave the complaint at about 8.00 p.m., on the strength of which, a case came to be registered in Crime No.557 of 2004 under Section 302 IPC. Ex.P.9, the F.I.R. was despatched to the Court. c)P.W.12, the Inspector of Police, on receipt of the copy of the F.I.R., took up the investigation, proceeded to the spot and made an inspection in the presence of the witnesses. He prepared Ex.P.4, the observation mahazar and Ex.P.10, the rough sketch. He has also conducted inquest on the dead body of the deceased in the presence of the witnesses and panchayatdars and prepared Ex.P.11, the inquest report. The place of occurrence and the dead body were photographed through P.W.8, the photographer. M.O.3 (series) photos and M.O.4 (series) negatives were marked. The dead body was sent to the Government Hospital, Ulundurpet for the purpose of post-mortem. d)P.W.7, the Doctor attached to the Government Hospital, Ulundurpet, on receipt of the requisition, has conducted autopsy on the dead body of the deceased and has issued Ex.P.3, the post-mortem certificate, wherein he has opined that the deceased would appear to have died of intradural and extradural bleeding into the skull due to head injury about 12 to 24 hours prior to autopsy. e)Pending investigation, the Investigating Officer arrested the first accused on 19.08.2004. He voluntarily came forward to give confessional statement, which was recorded in the presence of the witnesses. The admissible part of the same was marked as Ex.P.8. Pursuant to the confessional statement, the first accused produced M.O.1, stone, which was recovered under Ex.P.6, mahazar. M.O.2, stick was also recovered under Ex.P.7, mahazar. The second accused was also arrested on the same day, who has come forward to give https://hcservices.ecourts.gov.in/hcservices/ confessional statement voluntarily, which was recorded in the presence of the witnesses. The accused were sent for judicial remand. The Investigating Officer examined the witnesses and recorded their statements. On completion of the investigation, the Investigating Officer has filed the final report. 3.The case was committed to the Court of Sessions and necessary charges were framed. In order to substantiate the charges levelled against the accused, the prosecution examined 12 witnesses and also relied on 13 exhibits and 4 M.Os. On completion of the evidence on the side of the prosecution, the accused were questioned under Section 313 Cr.P.C. as to the incriminating circumstances found in the evidence of prosecution witnesses, which they flatly denied as false. On the side of the defence, one witness was examined and 2 documents were marked. The trial court, on hearing the submissions made on either side and looking into the materials available, took the view that the prosecution has proved the case beyond reasonable doubt and found the appellants guilty as per the charge and awarded punishment as referred to above, which is the subject matter of challenge before this court. 4.Advancing arguments on behalf of the appellants, the learned counsel made the following submissions: a)In the instant case, the occurrence, according to the prosecution, has taken place at about 7.00 p.m. on 18.08.2004. The prosecution marched 5 witnesses as occurrence witnesses. P.W.1 is the father and P.W.2 is the mother of the deceased. P.Ws.3 to 5, though claimed to be the neighbours, even after witnessing the quarrel between the accused on one side and P.Ws. on the other side, did not intervene, which would be indicative of the fact that they could not have been present at the time of occurrence at all. Apart from that, there were contradictions in the evidence of P.Ws.3 to 5, which would indicate their absence at the time of occurrence. Further, P.W.2 has categorically admitted that she went to the police station along with her husband and gave a complaint, but the police officer refused to receive the same and thereafter, her husband drafted the complaint and gave it to the police station and thus, the first information given by P.W.2 has been suppressed. b)Further, in the instant case, the investigation has been commenced even before the case was registered by the police. The learned counsel relied on the evidence of P.W.8, the photographer, who went to the spot and took the photographs of the dead body and the scene of occurrence at 7.00 p.m. and thus, it would be quite clear that the investigation was commenced earlier. Though the prosecution claimed that the recovery of M.Os.1 and 2, stone and stick respectively, was made from A-1 and A-2, they were never subjected to chemical analysis and no report was placed before the https://hcservices.ecourts.gov.in/hcservices/ court. In the instant case, the medical opinion canvassed was also not in favour of the prosecution and all would to go show that the prosecution has miserably failed to prove its case. c)The learned counsel, in the second line of argument, would submit that there was a quarrel between the accused/appellants on one side and P.Ws. on the other side. Further, Exs.D.1 and D.2, the accident register copies of A-1 and one Annamalai were also marked before the trial court. It would also clearly indicate that the accused also sustained injuries in the same transaction, but the prosecution did not tender any explanation and thus, all would indicate that there was a quarrel between them and as a result of which, the accused also sustained injuries and hence the act of the accused cannot be termed as murder and all these aspects have got to be considered by this court. 5.The court heard the learned Additional Public Prosecutor on the above contentions and has paid its anxious consideration on the submissions made. 6.It is not the fact in controversy that one Kumar, the son of P.Ws.1 and 2, was done to death in an incident that took place at 7.00 p.m. on 18.08.2004 at the place of occurrence. Following the inquest made by the Investigating Officer, the dead body was subjected to post-mortem by P.W.7, the Doctor, who has given his categorical opinion that the deceased died out of intradural and extradural bleeding into the skull due to head injury. He has also issued post-mortem certificate to that effect. The fact that the deceased died out of homicidal violence was never disputed by the appellants before the trial court or before this court. Hence it has got to be factually recorded so. 7.In order to substantiate the fact that at the time of occurrence, A-1 attacked the deceased with stone and A-2 also attacked the deceased with the stick, the prosecution marched 5 witnesses. It is true, P.Ws.1 and 2 are the parents of the deceased. But, on that ground, their evidence cannot be discarded. Before accepting their evidence, the court must apply the test of careful scrutiny. Further, the prosecution fortunately had its benefit the evidence of P.Ws.3 to 5, who are the neighbours. No circumstance or reason was brought about by the appellants to cast a doubt on their evidence. All the five witnesses have spoken about the incident in entirety. At this juncture, it is pertinent to point out that previously, there was a quarrel and it was the accused who pelted stones on the house of of P.W.1 and P.W.2 has shouted at the accused and there was a quarrel and at that time, P.W.1 intervened and pacified the situation and when the accused did not stop the same and continued the quarrel, it was quite natural for the deceased, the son of P.Ws.1 and 2, to question the conduct of the accused. https://hcservices.ecourts.gov.in/hcservices/ Immediately, A-1 attacked him with the stone and A-2 also attacked him with the stick. It is pertinent to point out that actually, the genesis of the occurrence was clearly made known. It was the accused who commenced the quarrel and not P.Ws. There was quarrel between P.Ws.1 and 2 on one side and A-1 and A-2 on the other side and that the deceased had nothing to do. Quite naturally, the deceased questioned the conduct of the accused and hence he had no role to play in the quarrel. Immediately, both the accused attacked the deceased and caused his death. It is true, the accused sustained injuries at the time of occurrence. It remains to be stated that the prosecution is not duty bound to explain the injuries sustained by the accused in every case. In the instant case, the injuries sustained by them, as could be seen from Exs.D.1 and D.2, the accident register copies, are simple in nature. Further, the Doctor gave opinion at the time of cross examination that when the first accused was running from the place of occurrence, such injuries were likely to happen. Under these circumstances, non explanation of the injuries sustained by the accused is not fatal to the prosecution. Further, it was never the case of the accused anywhere that they sustained injuries in the same transaction. Hence the court is unable to agree with the learned counsel for the appellants. 8.Further, the contention of the learned counsel for the appellants that the first information has been suppressed cannot be countenanced. Though a suggestion was put to P.W.2, no corresponding suggestion has been put to the Inspector of Police. According to him, P.W.1 came to the police station and gave Ex.P.1, the report and on the strength of which, the case came to be registered and hence it leaves no doubt in the mind of the court. 9.Equally, the contention put forth by the learned counsel for the appellants that the investigation has actually been commenced before the registration of the case cannot be countenanced. The learned counsel relied on the evidence of P.W.8, the photographer in respect of this contention. According to the prosecution, the occurrence has taken place at 7.00 p.m. The place of occurrence is situated 20 Kms. from Ulundurpet. P.W.8, the photographer, is having his photo studio at Ulunderpet. He has given his evidence to the effect that he took the photographes at about 7.00 p.m., which was humanly impossible. Therefore, it would be quite indicative of the fact that it was only a mistaken version of the photographer. Giving benefit to the mistaken version, the court cannot come to the conclusion that the investigation has actually been commenced even before the case was registered. 10.Apart from that, it is true, no report was received from the Forensic Science Department in respect of the analysis made with regard to the M.Os. But, there is evidence to indicate that both the M.Os., namely stone and the stick, were recovered from A-1 and A-2 https://hcservices.ecourts.gov.in/hcservices/ respectively pursuant to their confessional statements and evidence was also placed before the trial court to that effect. Hence the recovery of weapon of crime pursuant to the confessional statements given by the accused, in the considered opinion of the court, would be pointing to the nexus of the accused with the crime. All put together would clearly indicate that A-1 and A-2 have jointly shared the intention and have attacked the deceased and caused his death instantaneously. The trial court has come to a correct conclusion after marshaling the evidence proper. Hence there is nothing found either factually or legally to interfere with the judgment of the trial court. 11.In the result, this criminal appeal fails and the same is dismissed. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. vvk To 1.The Principal Sessions Judge, Villupuram, Villupuram District. 2.Inspector of Police, Ulundurpet Police Station, Ulundurpet, Villupuram District. 3.The Additional Pubic Prosecutor, High Court, Madras. 4. The Superintendent Central Prison, Cuddalore 1 cc to Mr.K.G. Senthil Kumar, Advocate, SR. 814 CRL.A.NO.474 OF 2008 RSI (CO) kk 21/1 https://hcservices.ecourts.gov.in/hcservices/