Bail Slip That the Appellant/Accused Viz. Ramachadran was directed to be enlarged on bail in and by the order of this court dated 21.2.2007 in Crl.M.P.No.2 of 2007. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 18.06.2008 CORAM THE HONOURABLE MR. JUSTICE P.D.DINAKARAN AND THE HONOURABLE MR. JUSTICE K.N.BASHA CRL.A.No.856 OF 2006 Ramachandran .. Appellant/A-1 Vs State by the Inspector of Police Thavalakuppam Police Station Pondicherry. [Crime No.94/2002] .. Respondent/Complainant Appeal filed under section 374[2] Cr.P.C., against the Judgment of the learned Principal Sessions Judge, Pondicherry in SC.No.45 of 2004 dated 07.09.2006. For Appellant : Mr.V.Gopinath, SC for Mr.L.Mahendran For Respondent : Mr.M.R.Thangavel,GA for Public Prosecutor, Puducherry JUDGMENT [Judgment of the Court was delivered by K.N.BASHA, J.] The first accused Ramachandran has preferred this appeal challenging the conviction and sentence passed by the learned Principal Sessions Judge, Pondicherry in the judgment dated 07.09.2006 made in SC.No.45 of 2004, convicting the appellant/A-1 for the offence under section 302 IPC and sentencing him to undergo life imprisonment and also imposing a fine of Rs.5,000/- carrying with the https://hcservices.ecourts.gov.in/hcservices/ default sentence of six months simple imprisonment. 2. There were four accused in this case and the learned Trial Judge acquitted A-2 to A-4 disbelieving the prosecution case and convicted A-1/the appellant herein as stated above. 3. The prosecution version in a nut-shell is as follows:- [a] P.W.1 is the cousin brother of the deceased. P.W.2 is the brother of P.W.1. P.W.4 is the father of the deceased and uncle of P.Ws.1 and 2. P.W.5 is the wife of the deceased. A-1, the appellant herein is the brother of A-2. The accused as well as the deceased and other witnesses are the residents of Singirikoil. Two years prior to the occurrence the deceased Govindan along with one Kumaran said to have murdered one Naaguran, brother of A-1 and A-2 and as such, there were strained feelings between the families of the accused and the deceased. [b] On the fateful day of occurrence, i.e., 28.07.2002, P.W.1 was taking tea at Amudha Hotel, Thavalakuppam, Puducherry. At that time, the deceased was also present at the tea stall and A- 1/appellant came there and beat the deceased on the backside of his head with the iron pipe-M.O.7. A-2 beat the deceased on his shoulder with the iron pipe and the other accused also beat the deceased with the iron pipes and the deceased fell down. The accused ran away from the scene. P.W.1 went and informed P.W.4, father of the deceased. [c] P.W.2, brother of P.W.1, who was also taking tea at Amudha Hotel, said to have witnessed the occurrence. P.W.2 also stated that A-1 to A-4 beat the deceased with the iron pipes. It is the version of P.W.2 that, being frightened that he may also be attacked, he ran to the Police Station. [d] P.W.1, thereafter went to Thavalakuppam Police Station, Puducherry and gave a statement which was recorded under Ex.P.1 by P.W.12, the Sub-Inspector of Police. He registered the case in Crime No.94/2002 for the offence under section 307 read with 34 IPC. Ex.P.5 is the Express First Information Report [FIR]. [e] P.W.12, took up investigation and went to the scene of occurrence and found the deceased lying in front of Amudha Hotel, Thavalakuppam, Puducherry. He sent the injured deceased to the hospital with a police memo through a Constable. At 11.30 a.m. the constable came back and informed that the deceased died. Thereafter, P.W.12 altered the offence to one under section 302 read with 34 IPC. Ex.P.16 is the altered FIR. [f] P.W.13, the Inspector of Police, took up further investigation after receiving the FIR on 28.07.2002 at 12.00 p.m. He went to the scene and made arrangements for taking photographs at https://hcservices.ecourts.gov.in/hcservices/ 12.35 p.m. He prepared the Observation Mahazar and Ex.P.2-Crime Details Form. He also recovered M.O.1-sample earth and M.O.2-blood stained earth under Ex.P.3. He went to the Government Hospital and held inquest on the dead body of the deceased from 9.30 a.m. to 12.30 p.m. in the presence of panchayatdars and witnesses. Ex.P.14 is the Inquest Report. He examined P.Ws.1,2 and others and recorded their statements. He sent the body for postmortem. [g] The doctor, P.W.7 attached to the Government Hospital, Puducherry, conducted the postmortem on the dead body of the deceased on 29.07.2002 at 3.30 p.m. He found the following injuries:- "EXTERNAL INJURIES:- 1.Vertically placed lacerated injury 3x1cmxbone deep present over right parietal region of scalp. 2.Vertically placed lacerated injury 6x2cm below injury NO.1 with fracture of underlying bone exposing cranial cavity and lacerated brain matter present over right region of head. 3.Transversely placed lacerated injury 4x0.5xbone deep present over mid parietal occipital region of head. 4.Lacerated injury 2x0.5cm present over helix of right ear. 5.Lacerated injury 3x0.5x0.5cm present over the right side of head behind right ear." Ex.P.5 is the Postmortem Certificate wherein the doctor has opined that the deceased would appear to have died due to head injuries and the deceased is said to have consumed alcohol. Ex.P.7 is the Final Opinion report. [h] P.W.13, in continuation of his investigation, sent the material objects through the Court for chemical examination. On 02.08.2002, all the accused surrendered before the Court concerned and they were taken for interrogation by P.W.13 on 12.08.2002. In pursuance of the admissible portion of the confession of the appellant/A-1 under Ex.P.8, he recovered M.O.7-Iron pipe under Ex.P.9. All the accused were remanded for judicial custody. [i] On 15.08.2002, he examined some more witnesses. On 20.08.2002 he examined the doctor, P.W.7 who has conducted the postmortem. He received Ex.P.7 the Postmortem Certificate and Ex.P.16-the chemical Examination report. He also received the photographs and negatives under Exs.P.10 to 13 series. https://hcservices.ecourts.gov.in/hcservices/ [j] P.W.14, the Inspector of Police took up further investigation and examined some more witnesses and verified the materials collected by P.W.13. After completion of investigation, he filed the charge sheet against the accused under section 302 read with 34 IPC. 4. The prosecution in order to bring home the charges against the accused examined P.Ws.1 to 14, filed Ex.Ps.1 to 18 and marked M.Os.1 to 7. 5. When the accused were questioned under section 313 Cr.P.C., in respect of the incriminating materials appearing against them, all the accused denied each and every circumstance as contrary to the facts and stated that they have been falsely implicated in the case. They have not chosen to examine any witnesses on their side and also not marked any documents. 6. Mr.V.Gopinath, learned Senior Counsel appearing for the appellant contended that the entire prosecution case suffers from infirmities and inconsistencies and put forward the following contentions:- "1. The earliest report Ex.P.1 said to have been given by P.W.2 is suppressed, raising serious doubt about the prosecution case. 2. There is an inordinate and unexplained delay in the FIR reaching the Court as the occurrence is said to have taken place on 28.07.2002 at 9.00 a.m.; the report was given at 9.15 a.m. but the FIR reached the Magistrate Court only at 9.30 p.m. on that day and in fact, the distance between the Police Station and the Court is only two kilometres, which assumes importance in view of the suppression of the earlier report. 3. There are contradictions between the evidence of P.Ws.1 and 2, the eyewitnesses and Ex.P.1-report as it is stated by P.Ws.1 and 2 that all the accused, viz., A-1 to A-4 attacked the deceased with iron pipe, but in Ex.P.1, it is stated that only A-1 attacked the deceased with iron pipe and the other accused, viz., A-2 to A-4, beat the deceased only with their hands. 4. P.Ws.1 and 2 are closely related to the deceased and as such, they are the interested witnesses and their evidence is not corroborated by any other independent witnesses. 5. P.W.8, another eyewitness, who is one of the https://hcservices.ecourts.gov.in/hcservices/ owners of Amudha Hotel, Thavalakuppam, Puducherry and in front of whose hotel the occurrence is said to have taken place, has turned hostile and not supported the prosecution case. 6. There is also contradictions between the evidence of the eyewitnesses P.Ws.1 and 2 and the medical evidence through the doctor P.W.7 in respect of the overt acts alleged against each of the accused and the injuries found by the doctor." 7. Per contra, Mr.M.R.Thangavel, the learned Government Advocate appearing for the learned Public Prosecutor [Puducherry] contended that the prosecution has proved its case by adducing clear and cogent evidence. It is submitted that the evidence of P.Ws.1 and 2 is quite clear and consistent and there is no serious infirmity in their evidence. It is further contended that though there are certain discrepancies between the evidence of P.Ws.1 and 2 and Ex.P.1, those discrepancies have not affected the main case of the prosecution. The learned Government Advocate would contend that as far as A-1 is concerned, it is the categorical version that he beat the deceased with iron pipe on his head and the doctor also found the corresponding injury on the head of the deceased. The learned Government Advocate would further submit that there is no delay in giving the FIR to the police as the FIR is registered within fifteen minutes after the occurrence by P.W.12, the Sub-Inspector of Police and the delay in FIR reaching the Magistrate Court is not fatal. Therefore, it is submitted that the prosecution has proved its case in all aspects beyond reasonable doubt against the appellant/A-1 herein. 8. We have given our careful and anxious consideration to the rival contentions put forward by either side and also thoroughly scrutinised the evidence available on record and perused the impugned Judgment of conviction. 9. The prosecution heavily placed reliance on the evidence of the eyewitnesses P.Ws.1 and 2. The yet another eyewitness P.W.8 has completely turned hostile and his evidence is neither helpful to the prosecution nor to the defence. It is also pertinent to be noted that the evidence of P.Ws.1 and 2 suffers from infirmities and inconsistencies. There are variations between the earliest report Ex.P.1 and the version of P.Ws.1 and 2, the alleged eyewitnesses. 10. Before considering all these aspects, we are constrained to deal with the vital point raised by the learned Senior Counsel to the effect of the suppression of the earliest report in this case. P.W.2 has categorically stated even in his chief examination that immediately after the occurrence he ran to the Police Station as he was frightened that he would also be attacked by the assailants, https://hcservices.ecourts.gov.in/hcservices/ viz., the accused. It is specifically stated by P.W.2 that at the Police Station he has given a report. In the cross-examination P.W.2 has categorically further stated that he has given the report at 8.30 a.m. and he has also signed the report and thereafter only, the police came to the scene of occurrence at 10.00 a.m. P.W.2 went to the extent of stating that the police has not examined P.W.1 or obtained his signature in any document. Therefore, it is crystal clear that the prosecution has suppressed the earliest report said to have been given by P.W.2. The defence also suggested the suppression of the earliest report to P.W.12, the Sub-Inspector of Police, who received the report Ex.P.1 as well as to P.W.13, the Inspector of Police. Both of them simply denied the suggestion without giving any further explanation for the version of P.W.2. Therefore, in view of the suppression of the earliest document, there is considerable doubt about the genesis and origin of the occurrence and also it is clear that Ex.P.1 the present report said to have been given by P.W.1 is not a genuine document. 11. We are also of the considered view that there is much force in the contention of the learned Senior Counsel in respect of the delay in FIR reaching the Magistrate Court. The fact remains that the occurrence is said to have taken place at 9.00 a.m. on 28.07.2002 and the report was said to have been given by P.W.1 at 9.15 a.m. But the FIR reached the Magistrate Court only at 9.30 p.m. and the distance between the Police Station and the Court is only two kilometres. The delay in the FIR reaching the Magistrate Court assumes importance in view of the suppression of the earlier document given by P.W.2 and as such, we are of the considered view that the non explanation of the inordinate delay in the FIR reaching the Court is also fatal to the prosecution case. 12. As already pointed out, the evidence of the eye P.Ws.1 and 2 is also not clear and cogent. P.W.2 claimed that he only gave the report and no report was recorded from P.W.1. P.W.1 stated that A-2 beat the deceased on his shoulder with iron pipe and A-1 beat the deceased with the iron pipe on his head and the other accused also attacked the deceased with iron pipe. P.W.2, on the other hand, stated that A-1 beat the deceased on his head with iron pipe; A-2 beat the deceased on his hip and A-3 beat the deceased on his knee and again on his head. No specific overt act is attributed to A-4 by P.W.2. Added to these infirmities and inconsistencies between the evidence of P.Ws.1 and 2, it is pertinent to be noted that in Ex.P.1, it is stated that A-1 beat the deceased on his head with iron pipe and A-2 to A-4 assaulted the deceased only with their hands. It is further mentioned in Ex.P.1 that A-1 beat the deceased with iron pipe on his head. Therefore, the version of P.W.1 is totally different from his earliest version in his report Ex.P.1. 13. The evidence of the eyewitnesses P.Ws.1 and 2 is also not corroborated by the medical evidence through the doctor P.W.7 as the https://hcservices.ecourts.gov.in/hcservices/ doctor found the injuries only on the head of the deceased and there is absolutely no other injuries as spoken by P.W.1 to the effect that A-2 beat the deceased with the iron pipe on the shoulder and P.W.2 stated that A-2 beat the deceased on his hip; A-3 beat the deceased on his knee. But the doctor, P.W.7, has not found any injuries either on the hip or on the knee of the deceased. It is pertinent to be noted that the doctor P.W.7 has opined that the deceased died due to the head injuries. As already pointed out, P.W.2 stated that A-3 also beat the deceased on his head and if such version is true, A-1 alone cannot be implicated for causing injuries on the head of the deceased. The learned Trial Judge has disbelieved the case of the prosecution as against A-2 to A-4 and placed reliance on the very same evidence against A-1 without assigning any valid reasons for such finding. Therefore, the entire prosecution case, as stated above, suffers from serious infirmities, inconsistencies and improbabilities. The evidence of P.Ws.1 and 2 not at all inspires our confidence and we are of the considered view that it is most unsafe and hazardous to place reliance on their evidence. 14. Therefore, for the aforesaid reasons, we are constrained to come to the inevitable conclusion to the effect that the impugned Judgment of conviction and sentence is unsustainable in law and accordingly, the conviction and sentence passed in the judgment dated 07.09.2006 by the learned Principal Sessions Judge, Pondicherry in SC.No.45/2004 is set aside and the criminal appeal is allowed. 15.It is reported that the appellant/A-1 is on bail. Hence,the bail bond, if any, executed by him, shall stand terminated. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ap To 1. The Principal Sessions Judge, Pondicherry. 2. The Inspector of Police Thavalakuppam Police Station Pondicherry. 3. The Public Prosecutor High Court, Chennai. https://hcservices.ecourts.gov.in/hcservices/ 4.The judicial Magistrate No.I, puducherry. 5.The chief Judicial Magistrate, Puducherry (for information) 6.The Superintendent, Central Prison, Cuddalore. 7.The Public Prosecutor, Puducherry. 8.The Commissioner of Police, chennai. 1 CC To Mr.L.Mahendran, Advocate, SR NO.30762. 1 CC to the Senior Government Pleader -Cum-Senior Public Prosecutor,High Court Buliding, Madras-104, SR NO.30538. Crl.A.No.856/2006 sjy(co) pmk/3.7.08. https://hcservices.ecourts.gov.in/hcservices/