IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 28.07.2008 CORAM THE HONOURABLE MR. JUSTICE P.D.DINAKARAN AND THE HONOURABLE MR. JUSTICE K.N.BASHA CRL.A.No.801 of 2007 1. Thirugnanam 2. Arumugam 3. Suresh 4. Narayanan .. Appellants/A-1 to A-4 Vs State rep. by the Inspector of Police Ambattur Estate Police Station, Chennai. [Crime No.1/2007] .. Respondent/Complainant Appeal filed under section 374[2] Cr.P.C., to set aside the conviction and sentence passed by the learned Additional Sessions Judge, Fast Track Court, No.3, Poonamallee, in SC.No.10/2007 dated 14.05.2007. For Appellants : Mr.V.Gopinath, SC for Mr.L.Mahendran For Respondent : Mr.N.R.Elango Addl. Public Prosecutor JUDGMENT [Judgment of the Court was delivered by K.N.BASHA, J.] The appellants are the accused 1 to 4 and they have come forward with this appeal challenging the Judgment dated 14.05.2007 passed by the learned Additional Sessions Judge, Fast Track Court No.3, Poonamallee, made in SC.No.10/2007 convicting the appellants/A-1 to A-4 for the offence under section 302 IPC and sentencing them to undergo life imprisonment and to pay a fine of Rs.1,000/- each, in default to undergo 2 years rigorous imprisonment and A-1 also has been convicted for the offence under section 324 IPC and sentenced to https://hcservices.ecourts.gov.in/hcservices/ undergo one year rigorous imprisonment. The sentences in respect of A-1 are ordered to run concurrently by the learned Trial Judge. 2. The occurrence in this case is shown to have taken place on 31.12.2006 at 11.30 p.m. in front of Senthil Fanta Graphics Company and Das Industrial Estate, wherein the accused 1 to 4 said to have cut the deceased Senthil Kumar @ Veera with knives. During the course of occurrence, A-1 cut P.W.1, the brother of the deceased, with knife and A-4 cut P.W.2 with the knife and caused injuries on them. 3. The prosecution in order to prove its case, examined P.Ws.1 to 9, marked Exs.P.1 to 23 besides marking M.Os.1 to 9. 4. The accused in this case faced the trial in the following backdrop:- [a] P.W.1 is the brother of the deceased; A-1 and A-2 are brothers. The deceased was in love with one Kamatchi, the daughter of A-1 and A-2's sister. The love affair of the deceased with the said Kamatchi was not liked by A-1 and A-2. At the instance of A-1 and A-2, the deceased was implicated in a case and that case was pending. Therefore, there were strained feelings between the accused and the deceased. [b] On the fateful day of occurrence, i.e., 31.12.2006, at the request of the deceased, P.W.1 took the deceased in a two-wheeler and left him in front of Senthil Fanta Graphics Company at 11.00 p.m. Thereafter, P.W.1 returned to his house after leaving the two-wheeler to its owner for celebrating New Year. At about 11.30 p.m. P.W.2 called P.W.1 in order to meet the deceased. Both P.Ws.1 and 2 went to the scene near the Senthil Fanta company. At that time, they saw the accused 1 to 4, as they were standing near the scene of occurrence. They questioned P.W.1 as to where he was going. P.W.1 answered that he is going to attend nature's call. A-1 asked A-2 to cut the deceased. Thereafter, the accused 1 to 4 went near the deceased and cut him on his neck with the knives. P.W.1 raised hue and cry. P.W.2 was also standing along with P.W.1. A-1 cut P.W.2 with the back portion of the knife on his shoulder. A-1 also cut P.W.1 which was warded off by P.W.1 and as a result, he sustained injury on his finger. P.Ws.1 and 2 got frightened and ran away from the scene. P.W.1 boarded a share auto and went to Koyambedu and stayed at Koyambedu Bus stand throughout the night and came to Ambattur on the next day morning. He heard that the deceased died. Thereafter, he went to Ambattur Estate Police Station. [c] P.W.9, the Inspector of Police, attached to D2, Ambattur Estate Police Station, received the report, Ex.P.1 from P.W.1 on 1.1.2007 at 10.00 a.m. and registered a case in Cr.No.1/2007 for the offence under sections 341,307 and 302 IPC. Ex.P.21 is the First https://hcservices.ecourts.gov.in/hcservices/ Information Report and he has sent the same to the higher police officials and to the Court concerned. He summoned Finger Print Expert, Forensic Expert and Sniffer dog to the scene of occurrence. He went to the scene of occurrence and prepared the Observation Mahazar-Ex.P.2, rough sketch-ex.P.22. He recovered M.O.1-blood stained earth and M.O.2-sample earth from the scene. He also made arrangements to take photographs of the scene. He held inquest on the dead body of the deceased from 12.05 p.m. to 2.15 p.m. Ex.P.24 is the Inquest Report. During inquest, he examined P.W.1 and others and recorded their statements. P.W.1 and one Jothi identified the body of the deceased as that of their brother. He examined other witnesses and recorded their statements. He sent the body for postmortem. [d] The doctor, P.W.6, attached to the Government Hospital, Kilpauk, conducted postmortem on the dead body of the deceased on 02.01.2007 at 12.45 p.m., on receipt of the requisition under Ex.P.13. He found the following injuries:- "INJURIES:- 1] A deep cut wound seen on the mid occipital region measuring 9cmx2cmxscalp deep in depth. 2] Another cut wound on the mid occipital region measuring 7cmx1cmxscalp deep present just below 1cm of wound No.1. 3] A cut wound on the mid occipital region measuring 6cmx1cmxscalp deep depth on dissection. Extensive reddish contusions seen underneath the scalp. This wound is just 1cm below the wound No.2. 4] A cut wound present on the left parietal region of scalp measuring 10cmx1cmxscalp deep on dissection a cut fracture of left parietal bone 5cm in length seen. 5] A deep cut wound seen on the middle of the neck measuring 33cmx3cmx5cm with a tag of skin attached on both sides of neck. 6] Cut wound on the right side neck measuring 6x1x0.5cm 1's present. 7] A deep cut wound on the right side of mandible measuring 4cmx1cmxbone depth with fracture of body of mandible. 8] A deep cut wound on the top of left shoulder measuring 7cmx2cmx0.5cm. https://hcservices.ecourts.gov.in/hcservices/ 9] Two cut wounds on the right side of cheek measuring 1cmx1cmx0.5cm. 10] A cut wound present on the middle of right earlobe measuring 3cmx1cmx1cm. 11] A cut wound present on the left side cheek measuring 2cmx1cmx0.5cm. 12] 3 number of superficial incised wounds present on the front of left fore arm each measuring 5cm in length. 13] Multiple small punctured wounds present on both sides of chest 16 in numbers measuring about 0.5cmx0.5cm. 14] A punctured wound present on the front of right arm measuring 3cmx1cmx0.25cm. 15] A cut wound present on the front of right thigh measuring 5cmx1cmx0.25cms. 16] A deep cut wound seen on the front of right knee measuring 6cmx2cmxbone depth. 17] A punctured wound seen on the front of right leg measuring 5cmx1cmx0.5cms. 18] A deep penetrating wound seen on the left side chest wall at the level of 5th and 6th rib with the measurement of 1cmx0.5cmxskin deep. On dissection a cut fracture of 6th rib with contusion seen." Ex.P.14 is the Postmortem Certificate wherein the doctor has opined that the deceased would appear to have died of shock and haemorrhage due to cut throat injury. [e] P.W.9, the investigating officer, in continuation of his investigation sent P.Ws.1 and 2 for medical examination with a Memo at 4.30 p.m. on 1.1.2007. [f] The doctor, P.W.8, attached to the Government Hospital, Kilpauk, Chennai examined P.W.1 at 6.10 p.m. on 1.1.07. He found an injury in the right ring finger. Ex.P.19 is the Accident Register issued by him. On the same day at 6.15 p.m. he examined P.W.2 and he has not found any external injury. But P.W.2 complainedpain on his right hand. Ex.P.20 is the Accident Register of P.W.2. https://hcservices.ecourts.gov.in/hcservices/ [g] P.W.9 examined the doctor P.W.6 who has conducted the postmortem and P.W.8 who has examined P.Ws.1 and 2. He received Ex.P.14, the Postmortem Certificate and the Accident Registers, Exs.P.19 and 20 respectively. He searched for the accused and came to know that all the accused surrendered before the learned Judicial Magistrate, Tiruttani. He has filed a petition for police custody of the accused on 03.01.2007 and taken custody of the accused on 04.01.2007. He brought the accused to the police station and summoned two official witnesses, viz., P.W.4 and another. He enquired the accused 1 to 4. In pursuance of the admissible portion of the confessions of the accused 1 to 4 under Exs.P.4,5,6 and 7, P.W.9 recovered four knives as produced by the accused 1 to 4 under Ex.P.8. He also recovered the blood stained clothes as produced by the accused under Ex.P.9. He sent the material objects for chemical examination through the Court. He has received Ex.P.10-Serologist Report and the chemical examiner's Reports-Exs.P.11,12,16,17 and 18 respectively. He examined the remaining witnesses and recorded their statements and after completion of investigation, filed the charge sheet against the accused for the offence under sections 341,307 and 302 read with 34 IPC. 5. When the accused were questioned under section 313 Cr.P.C., in respect of the incriminating circumstances appearing against each of them, they have denied their complicity and they have come forward with the version of total denial. They have not chosen to examine any witnesses or mark any document on their side. 6. Mr.V.Gopinath, learned Senior Counsel appearing for the appellants vehemently contended that the prosecution has miserably failed to prove its case by adducing clear and consistent evidence and made the following submissions:- "[1] The entire prosecution case rests on the evidence of P.Ws.1 and 2, the eyewitnesses and P.W.2 has turned hostile and as such, the prosecution case is left with the uncorroborated testimony of P.W.1. [2] There is an inordinate and unexplained delay in giving the FIR to the police as the occurrence said to have taken place at 11.30 p.m. on 31.12.2006 and the report Ex.P.1 was given by P.W.1 only at 10.00 a.m. on the next day, i.e., 01.01.2007 in spite of the fact that the police station is only 2 kilometres away from the scene of occurrence. [3] The conduct of P.W.1 is highly unnatural and abnormal as he has simply stayed at Koyambedu Bus Stand throughout the night without informing about the occurrence to anyone and went to the Police Station only on the next day at 10.00 a.m. P.W.1 has admitted that he has crossed Ambattur Police Station https://hcservices.ecourts.gov.in/hcservices/ while going to Koyambedu Bus stand. But he has not given any report to the police at that time. P.W.1 further admitted that he has also grossed his father- in-law's house. But he has not disclosed about the occurrence to his father-in-law. [4] The explanation given by P.W.1 for not informing anyone or for not giving the report to the police immediately to the effect of fear is unbelievable and unacceptable as he has no explanation for not informing anyone or for not giving any report to the police even on the next day morning from 6.00 a.m. to 10.00 a.m. [5] Though P.W.1 claimed that he was also assaulted by the accused and sustained an injury on the finger, the medical evidence does not disclose the nature of injury and if he has really sustained any injury he could have sustained a serious cut injury as the weapon said to have used by the accused is a knife. [6] Though P.W.1 claimed that P.W.2 was also assaulted by one of the accused with the back portion of the knife, the doctor P.W.8 has not found any external injury on P.W.2 which clearly shows that P.W.1 could not have witnessed the occurrence at all. [7] The recoveries of weapon as well as the blood-stained clothes from the accused are unbelievable as the prosecution has chosen to examine only an official witness viz., P.W.4 who is a Revenue Inspector. Further the recoveries of weapon as well the clothes were made from the same place and the alleged confession statements were recorded from all the accused together and as such, it cannot be stated that the recoveries have been made as per the provisions of section 27 of the Indian Evidence Act." 7. Per contra, Mr.N.R.Elango, the learned Additional Public Prosecutor strenuously contended that the prosecution has proved its case by adducing acceptable evidence. It is submitted that though P.W.2 has turned hostile, the evidence of P.W.1,brother of the deceased is clear and natural. There is no infirmity in his evidence. It is contended that P.W.1 has given probable explanation for the delay in giving the report to the police as he has stated that he was frightened. Learned Additional Public Prosecutor would contend that every person would react in his own way and there cannot be any straight jacket formula in respect of the conduct of the witness. It is contended that the evidence of P.W.1 is also https://hcservices.ecourts.gov.in/hcservices/ corroborated by the recovery of the knives and blood-stained clothes of the accused in pursuance of the admissible portion of the confessions of the accused 1 to 4 as spoken by P.W.9, the Investigating Officer, corroborated by P.W.4. which proves the complicity of the accused with the alleged crime. Learned Additional Public Prosecutor would further submit that the evidence of the eyewitness, P.W.1 is also corroborated by the medical evidence through the doctor, P.W.6 who has conducted the postmortem. 8. We have given our careful and anxious consideration to the rival contentions put forward by either side and thoroughly scanned through the entire evidence available on record and also perused the impugned Judgment of conviction. 9. The prosecution heavily placed reliance on the evidence of the eyewitnesses P.Ws.1 and 2. P.W.2 has completely turned hostile and as such, his evidence is neither helpful to the prosecution nor to the defence. Therefore, the prosecution case is entirely left with the sole and solitary evidence of P.W.1. P.W.1 is the brother of the deceased and as such, he is an interested witness and his evidence has to be scrutinised with great care and caution. 10.The motive put forward by the prosecution is two fold. Firstly, the deceased was in love affair with A-1 and A-2's sister's daughter which was not liked by A-1 and A-2. Secondly, at the instance of A-1 to A-4 the deceased was implicated in a case and that case was pending and as such, there were strained feelings between the deceased as well as the accused party. It is seen from the perusal of Ex.P.2 that as per the information given by the accused 1 and 2, the deceased was arrested in a case and he was released on bail two weeks prior to the occurrence. It is further mentioned in Ex.P.1 that after his release from the prison, the deceased was declaring that he has to finish off the accused 1 and 2 as they are responsible for sending him to jail. Therefore, it is clear that the even P.W.1, the brother of the deceased, is on inmical terms with the accused party as they are responsible for sending his brother, the deceased, into the prison. It is needless to state that the Hon'ble Apex Court has held in MOHD. ZAHID v. STATE OF T.N. reported in 1999 (6) S.C.C. 120 that, "Motive being a double-edged weapon, could cut both ways – helping or harming both the prosecution and the defence." 11. With the above said background and scenario, let us now proceed to consider the sole and solitary testimony of P.W.1. 12. As already pointed out, as per the report Ex.P.1 given by P.W.1, the deceased was under intoxication and P.W.1 at the request of the deceased said to have taken the deceased in a two-wheeler and left him at the scene of occurrence. At the risk of repetition, it is to be reiterated that in Ex.P.1, it is further stated by P.W.1 https://hcservices.ecourts.gov.in/hcservices/ that the deceased was released from the prison two weeks prior to the occurrence and thereafter, the deceased was declaring that he has to finish off A-1 and A-2 as they were responsible for sending him to the jail and further, it is stated that he heard that the accused 1 and 2 were planning to attack the deceased even prior to the deceased attacking them. If such version of P.W.1 is true, he could not have taken the deceased and left him alone in the scene of occurrence. It is pertinent to be noted that the further version of P.W.1 is to the effect that after leaving the deceased at 11.00 p.m. at the scene, again he came back to the scene at 11.30 p.m. with P.W.2 to see the deceased and at that time, the occurrence is said to have taken place. It is also stated by P.W.1 that he has come back near his house after leaving the deceased at the scene for celebrating the New Year. The above version of P.W.1 is highly unnatural and unbelievable. There is no explanation as to why he has not celebrated the New Year and instead, he went to the scene again with P.W.2 which raises serious doubt about the presence of P.W.1 at the time of occurrence. 13. It is further seen from the version of P.W.1 that he was also assaulted by the accused as A-1 cut him with the knife and while he warded off the cut, it fell on his right ring finger. But the fact remains that the prosecution has not come forward with the nature of the injury sustained by P.W.1. If he has really warded off the cut given by A-1, he could have sustained a grievous cut injury on his finger. But the doctor P.W.8 has not given the description of the injury and the prosecution also not elicited that vital aspect from the doctor. It is merely stated by the doctor that P.W.1 sustained a simple injury. The yet another version of P.W.1 is to the effect that A-4 said to have cut P.W.2 with the back portion of the knife on his shoulder. But, the doctor P.W.8 has not found any external injury at all. If really P.W.2 was attacked with the back portion of the knife, at least he could have sustained some lacerated injury or some contusion. But, it is seen from the evidence of the doctor, P.W.8 that P.W.2 has complained only some pain on his right hand. Therefore, the version of P.W.1 is falsified by the medical evidence which throws considerable doubt about the veracity of the version of P.W.1 and his presence at the time of occurrence is highly doubtful. 14. The undisputed fact remains that there is an inordinate delay in giving the report to the police. The occurrence is said to have taken place at 11.30 p.m. on 31.12.2006 and the report given by P.W.1 to P.W.9, the Inspector of Police, only at 10.00 a.m. on the next day, i.e., 01.01.2007. It is seen from the FIR, Ex.P.21, that the scene of occurrence is only 2 kilometres away from the respondent Police Station. The only reason assigned by P.W.1 as per his report Ex.P.1 is, out of fear, he has absconded and only on the next day, he came to know that his brother was murdered and thereafter, he has given the report to the police. In the evidence, P.W.1 has come https://hcservices.ecourts.gov.in/hcservices/ forward with the version that after the occurrence he was frightened and ran away from the scene and got into a share auto and went to Koyambedu Bus Stand and he stayed there throughout the night and came to Ambattur only on the next day morning. It is curious to note that if really he is frightened, he could not have stayed in a open public place, viz., Koyambedu Bus Stand. 15. The yet another curious aspect is that he has got into a share auto in which he has to travel along with other passengers and the possibility of the accused taking the share auto also cannot be ruled out. Added to these infirmities, in his evidence, it is pertinent to be noted that P.W.1 has categorically admitted in his cross-examination that he has crossed Kamarajapuram while going in the share auto and most of his relatives were at Kamarajapuram. But, he has not informed anyone about the occurrence. It is further admitted by him in the cross-examination that he has even crossed the respondent Police Station and he has not thought it fit to give the report immediately. It is further seen that P.W.1 has admitted that he has also crossed his father-in-law's house. But, even then, he has not chosen to inform his father-in-law about the occurrence. Even assuming that he was frightened and stayed back at Koyambedu Bus Stand throughout the night, nothing prevented P.W.1 to go and inform his relatives on the next day morning or to go to the Police Station immediately as he has given the report to the police on the next day only at 10.00 a.m. and he has not raised his little finger even during the day time, i.e., from 6.00 a.m. to 10.00 a.m. Here again, it is pertinent to be noted that P.W.1 has categorically stated in his cross-examination that on the next day, he went to a tea stall nearby the Police Station and narrated the occurrence to a person who as per the dictation of P.W.1 has written the report and P.W.1 signed that report and went and gave the same to the Police Station. The prosecution has not examined the scribe of the report Ex.P.1. If really P.W.1 is frightened, he could not have went and stated about the occurrence to a stranger who was in the tea stall. Curiously, P.W.1 has not chosen to inform his relatives, as pointed out earlier, including his father-in-law. P.W.1 also admitted in his cross-examination that there were security watchmen in the companies in that area. But, he has not even chosen to inform them. Therefore, we are of the considered view that P.W.1 has not given any reasonable explanation for the inordinate delay in giving report to the police. 16. The Hon'ble Apex Court in Meharaj Singh V. State of U.P. reported in 1994 SCC (Cri.) 1390 has held that, "FIR in a criminal case and particularly in a murder case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon prompt lodging of the FIR is to obtain the earliest information regarding the circumstance in which the crime was committed, including the names of https://hcservices.ecourts.gov.in/hcservices/ the actual culprits and the parts played by them, the weapons, if any, used, as also the names of the eyewitnesses, if any. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. On account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story." In view of the settled principle of law laid down by the Hon'ble Apex Court in the decision cited supra, we are constrained to state that the inordinate and unexplained delay in giving report to the police by P.W.1 is certainly fatal to the prosecution case as the same raises serious doubt about P.W.1 being an eyewitness in this case. 17. It is further relevant to note that P.W.1 is none else than the brother of the deceased and according to him, he was frightened immediately after the occurrence and he ran away from the scene and took a share auto and he was at the Koyambedu Bus Stand throughout the night and he has not bothered to go and see the fate of the deceased, his brother after the occurrence and he comes to the scene of occurrence only after giving the report to the police. P.W.1 claimed that he came to know through the public that his brother died due to the cut injuries. By