IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated:- 14.03.2008 Coram:- The Hon'ble Mr. Justice P.D.DINAKARAN and The Hon'ble Mr. Justice R.REGUPATHI Criminal Appeal Nos.1040/2006 & 875/2007 Thanika @ Thanikachalam ... Appellant in C.A. No.1040/2006 /Accused No.2 Shaji ... Appellant in C.A. No.875/2007/ Accused No.1 vs. The State of Tamil Nadu rep. by Inspector of Police, D6, Mancadu Police Station, Mancadu, Kancheepuram Dt. (Crime No.302 of 2001) ... Respondent in both the Appeals. /Complainant Appeals against the orders, dated 20.06.2005 and 10.08.2005, passed by the learned Additional Sessions Judge, Fast Track Court No.3, Chengalpattu at Poonamallee, in S.C. Nos.392 of 2003 and 580 of 2004. For Appellant in C.A. No.1040/06 : Mr.V.Rajesh For Appellant in C.A. No.875/07 : Mr.P.Thiagarajan For Respondent : Mr.N.R.Elango, Addl. Public Prosecutor. https://hcservices.ecourts.gov.in/hcservices/ COMMON JUDGMENT R.REGUPATHI, J. The above Criminal Appeals pertain to a case of double murder. Though the target of the accused was one Karthik/PW-2, who perchance was not seen by them when they gained entry into the residence with an intention to finish him off, they succeeded in killing his parents due to their jinxed destiny. 2. On 12.04.2001, the accused were talking to one Shanthi and this was questioned by PW-2, whereupon, a wordy quarrel ensued, leading to a clash between the accused and PW-2. Having developed animosity on account of the same, on the next day ie., on 13.04.2001 at about 2 P.M., the accused, entered into the residence of PW-2 and, A-1 had cut PW-2's mother by name Devaki with patta knife on the left side of her chest, resulting in her death and when it was questioned by the father of PW-2 by name Perumal, he was also attacked by A-2. Therefore, a charge for the offence punishable under Section 302 IPC. was framed against A-1 for causing the death of Devaki. Secondly, in the same transaction, while the first accused was stabbing Devaki, the second accused assisted him, therefore, he was charged for the offence punishable under Section 302 read with 34 IPC. Thirdly, in the course of the same transaction, A-2, armed with patta knife, attacked Perumal on the back side of the neck; the first accused stabbed him with patta knife on his right chest; and when Perumal fell down after receiving cut injuries, A-2 cut him on his right hand, ultimately resulting in his death, thereby, a charge under Section 302 read with 34 IPC. (second count) was framed against them. 3. After framing of the charges on 29.12.2003, A-1 remained absent from 20.05.2004 to 17.12.2004, resulting in issuance of a non-bailable warrant against him. The case was split up and trial against A-2 was taken up first in S.C. No.392 of 2003. The Prosecution, in order to substantiate its case against A-2, examined PWs-1 to 13, marked Exs.P.1 to P31 and produced MOs.1 to 16. On defence side, two witnesses were examined as DWs-1 and 2 but no document was marked. The learned Additional Sessions Judge, Fast Track Court No.3, Chengalpattu at Poonamallee, by judgment dated 20.06.2005, convicted A-2 under Section 302 read with 34 IPC (2 counts) and sentenced him to undergo life imprisonment for each count and also imposed a fine of Rs.10,000/- for each count, in total Rs.20,000/-, in default to undergo rigourous imprisonment for two years on each count. The sentences were ordered to run concurrently. Aggrieved over https://hcservices.ecourts.gov.in/hcservices/ the same, A-2/Thanika @ Thanikachalam, has preferred Criminal Appeal No.1040 of 2006. After the arrest of the first accused, trial proceedings against him were taken up in S.C. No.580 of 2004. In order to substantiate its case against A-1, the prosecution examined PWs-1 to 10, marked Exs.P1 to P18 and produced M.Os.1 to 14. Neither any witness was examined nor any document marked on the side of the defence. After the trial was over, the learned trial Judge convicted and sentenced A-1 as ordered in the case of A-2. As against the said order, A1/Shaji has filed C.A. No.875 of 2007. 4. Inasmuch as the trial against the second accused was taken up first by the trial court and the case of the first accused also met with the same fate as the case of the second accused and we are disposing of both these appeals by way of this common judgment, for the sake of convenience, we shall refer to the evidence, exhibits and other materials from the first case in S.C. No.392 of 2003. As the deceased persons are two in number, the first deceased Devaki is referred as D-1 and the second deceased Perumal as D-2, in the course of this Judgment. 5. The case of the prosecution, as divulged by its witnesses, is narrated here-under in an abridged manner :- i) PWs-1 to 3 are eye witnesses to the occurrence. PWs- 1 and 2 respectively are the daughter and son of the deceased. PW-3 is the cousin of PW-2. ii) It is the evidence of PW-1 that, on the previous day, her brother PW-2 told that the accused quarrelled with him and threatened that on the next day, they would finish off PW-2 and his family and on such information being divulged, the family members scolded PW-2 for the quarrel with the accused. On the occurrence day at about 2 P.M., she returned to the residence from her working place and was sitting outside along with D- 1/her mother while D-2/her father was having lunch, at which time, the accused came there and asked for PW-2 and when D-1 questioned the accused as to why they were searching for PW-2, A-1 stabbed D-1 on her chest and she fell down. On hearing the alarm raised by PW-1, D-2 came out and questioned the accused as to why they had done like that, whereupon, A-2 cut D-2 on his neck and, by stating that such injury is not sufficient, A-1 intervened and stabbed D-2 on his stomach. Again, A-2 cut D-2 on his hand. By that time, PWs-2 and 3 reached the scene place and the accused ran away from there. PW-2 went to inform the police. The statement/complaint given by PW-1 to PW-12, the Sub Inspector of Police at the scene of occurrence was reduced to https://hcservices.ecourts.gov.in/hcservices/ writing and marked as Ex.P1. In court, PW-1 identified MOs-1 and 2 knives as the ones used by the accused for committing the offence. iii) PW-2 is the son of the deceased, who speaks about the motive part of the prosecution case. According to him, on 12.04.2001, at about 9 P.M., when he was returning home, both the accused were talking to a girl by name Thangam and he questioned the same, resulting in a wordy quarrel. Both the accused stated that they would not spare PW-2 without cutting him. In the night, PW-2 conveyed to his family members about the altercation took place between him and the accused and they scolded him. On the next day, finding that the accused are coming with knives, both the deceased directed PW-2 to stay inside the residence. When the accused questioned D-1 about PW-2, it was answered by D-1 that PW-2 had gone out for work, at which time, A-1 stabbed D- 1/mother with knife and when it was questioned by D-2/father, A-2 cut him on his neck and thereafter, PWs-1 and 2 raised alarm, whereupon, the accused ran away from the scene of occurrence. Both the deceased were found dead. iv) PW-3 is the cousin of PW-2 and he has corroborated the evidence of PW-2. v) PW-4 is the son-in-law of the deceased. He has stated that, while he was returning for lunch, he saw the accused running away from the scene of occurrence with bloodstained weapons. He made an attempt to catch them but in vain. When he reached the scene of occurrence, he found both the deceased dead. vi) PW-5 is the Ward Member of the Local Panchayat and he has been examined as a witness for preparation of Ex.P3, observation mahazar and recovery of bloodstained earth MOs-3 and 5 and sample earth MOs-4 and 6. He attested the observation and seizure mahazars. He was present at the time of inquest conducted by the Investigating Officer. vii) PW-6 is the attesting witness for the arrest of the accused. He also attested Exs.P4 and P5, the confession statements of the accused and Ex.P6 & P7 viz., mahazars for recovery of MOs-1 and 2 weapons. Viii) PW-7 is the Doctor, who conducted post mortem over the dead bodies of the deceased and issued post mortem certificates under Exs.P8 and P10. In Ex.P8/post mortem certificate issued in respect of D-2 Perumal, the following injuries have been noticed:- " 1. Laceration on the dorsal aspect of right hand 2 x 1 cm bone deep. https://hcservices.ecourts.gov.in/hcservices/ 2. Laceration 7 x 3 cm cavity 9 cm in depth on the right side of chest. On dissection fracture of sternum involving the 4th and 5th intercostal space and laceration of heart involving the atrium 6 cm x 2 x 1 cm. 500 ml of fluid blood collection into the cavity. 3. Incised wound 9 x 4 x bone deep on the nape of the neck involving the C2 and C3 with extravasation of blood into around the fractured site. The above injuries had regular, sharp and everted edges. ...... Opinion: The deceased would appear to have died of shock and haemorrhage due to stab injuries of chest." In the post-mortem certificate issued under Ex.P10 in respect of D-1 Devaki, the Doctor noticed the following injuries:- " Laceration 9 x 3 cm cavity deep 9 cm depth on the right side of chest. Old fracture of sternum involving the 4th and 5th intercostal spaces and laceration of heart involving the atrium 500 ml. of fluid blood collection in the thoracic cavity. .... Opinion: The deceased would appear to have died or shock and haemorrhage due to stab injury of the heart. " ix) PW-8 is the Constable, who took the dead bodies to the Hospital for the purpose of post-mortem and after the autopsy was over, he collected the clothing found on the deceased viz., bloodstained Dhoti MO-11, shirt MO-12, Baniyan MO-13, underwear MO-14, saree MO15 and blouse MO-16 and handed over the same to the Investigating Officer. x) PW-9 is the Court Clerk, who received the material objects from the Inspector of Police and on the direction of the learned Magistrate, sent the same to the Forensic Lab for chemical examination. xi) PWs-10 and 11 are experts from Forensic Department. They issued chemical analysis reports Exs.P9, P11 and P21 with reference to the material objects received and the vicera. xii) PW-12 is the Sub Inspector of Police. On receiving telephonic information from one Karunakaran, he reached the scene of occurrence and recorded the statement of PW-1 and https://hcservices.ecourts.gov.in/hcservices/ after the arrival of PW-13/Inspector of Police, he returned back to the police station and registered F.I.R. under Ex.P22. Xiii) PW-13 is the Inspector of Police. His evidence is to the effect that on 13.04.2001, he received the information about the occurrence at 2.30 P.M. and reached the scene of occurrence at 3 P.M. After sending the Sub Inspector of Police to the police station for registration of case, he prepared observation mahazar Ex.P.3 and rough sketch Ex.P23. He conducted inquest over the dead bodies in the presence of panchayatdars. Exs.P24 and P25 respectively are the inquest reports relating to D-2 and D-1. He examined PWs-1 to 4 and others and on the next day, after the post mortem was over, he received the clothing found on the deceased from Constable under Form-95. On 15.04.2001 at about 11 A.M., he arrested the accused and recorded their confession statements. In the presence of PW-6, he recovered the weapons and other material objects. He sent the material objects to the court with his requisition to forward the same for chemical examination. After receiving the experts' opinions, medical reports and on conclusion of the investigation, he filed final report on 25.07.2001 against the accused for the offence under Section 304 read with 34 IPC. 6. In both the cases, the accused were questioned under Section 313 Cr.P.C. with regard to the incriminating materials available against them and both of them denied their complicity in the crime and pleaded innocence. As pointed out earlier, in S.C. No.580 of 2004, on the side of the defence, two witnesses have been examined as DWs-1 and 2. It is the evidence of DW-1 that on the date of occurrence, PW-1 came running from her residence and stated that her parents were stabbed by some unknown persons. The second accused along with others came to the scene of occurrence. Thereafter, PWs-2 and 3 chased A2 on the allegation that he accompanied the first accused, who committed the offence. DW-2 is the brother of the second accused. According to him, police officials came to their residence searching for A- 2 and as he was not available at that time, they took DW-2 stating that if the second accused is arrested, the whereabouts of the first accused, who had committed the offence, would be known. Since A-2 was arrested on the next day, DW-2 was allowed to go. 7. The learned trial judge, on perusal of the oral and documentary evidence and upon hearing the arguments advanced by both sides, convicted and sentenced A-2 as aforementioned. The trial proceedings against A-1 also ended in conviction and sentence as imposed on A-2. Aggrieved by that, Criminal Appeal No.1040 of 2006 has been preferred by A-2 and Criminal Appeal No.875 of 2007 by A-1. https://hcservices.ecourts.gov.in/hcservices/ 8. In these Appeals, the point for determination is as to whether the orders of conviction and sentence passed by the trial court against the appellants/accused are sustainable in the given facts and circumstances. 9. First, let us deal with the arguments advanced by the learned counsel appearing for A-2/appellant in C.A. No.1040 of 2006. Learned counsel submits that it was only the first accused, who quarrelled with PW-1 as a result of which, they assaulted each other and there is no evidence to establish "direct motive" on the part of A-2 as against PW-2 or any of his family members. Referring to the evidence of the defence witnesses, he argues that since the second accused happened to be the friend of A-1 and just because A-2 was present during the quarrel that took place on the previous day, he has been falsely implicated in the case. It is submitted that Thangam was not examined so as to substantiate the motive part of the prosecution case as against A-2. On the one hand, it is stated that the information relating to the occurrence was given to the police by one Janakiraman while on the other hand, there is also a version that one Karunakaran gave the information. According to the learned counsel, there is a contradiction in that regard and further, the said Janakiraman and Karunakaran have not been examined by the police. PWs-1 to 3 being closely related to the deceased, their evidence cannot be relied on. PWs-2 and 3 came to the scene of occurrence only at a later point of time and they have been falsely cited as eye witnesses to the occurrence. If PWs-2 and 3 were really present at the time of occurrence, the accused, in view of the motive against PW-2, would not have attacked his parents, sparing PW-2. Therefore, it is reiterated that PWs-1 and 2 are not eye witnesses to the occurrence. By stating that the police officer obtained the signature from PW-1 on two occasions ie., at the scene of occurrence as well as at the police station, it is submitted that Ex.P1 has been prepared only at the police station and the case has been fabricated against the accused. Referring to the statement of PW-1 during the course of cross examination to the effect that while running away from the scene of occurrence, the accused left the weapon at the scene of occurrence itself, it is contended that that the subsequent confession and recovery of weapons are falsified. 10. Per contra, learned Additional Public Prosecutor submits that the occurrence took place at 2 P.M. and, on receipt of the telephonic information, PW-12, the Sub Inspector of Police reached the scene of occurrence without any delay. Complaint was prepared on the narration of PW-1 and information has also been given to the Inspector of Police PW-13 immediately. Since the https://hcservices.ecourts.gov.in/hcservices/ Inspector of Police reached the occurrence place, PW-12 returned back to the police station, registered the case and prepared F.I.R., etc. Subsequently, the witnesses were examined at the police station for preparation of their statements. PW-1, being rustic and uneducated, stated that twice she was examined by the police and the same need not be construed as if a second F.I.R. has been prepared at the police station. Information has been received from the scene of occurrence and though the informant/s had not been examined, it is contended that they are not material witnesses. It is further submitted that the girl with whom the accused were talking is also not a material witness and non- examination of such witness will not affect the prosecution case. The evidence of PWs-1 to 3 amply establishes the motive/grudge developed by the accused as against PW-2 and his family on account of the incident that took place on the previous day. Further, the occurrence took pace in a broad day light, when both the accused, to wreck vengeance against PW-2, armed with weapons, reached the scene of occurrence and since PW-2 was not available, brutally murdered his parents who were available in the residence at that time. PWs-1 to 4, though closely related, are natural witnesses for the occurrence. Though PW-1, in the cross-examination, has stated that the accused left the weapon of offence at the occurrence place itself, it is the clear and categoric evidence of PW-4 that he has seen the accused running away from the scene of occurrence with bloodstained weapons and he has also chased them in an attempt to catch hold of them. 11. We have perused the materials available on record and carefully considered the rival contentions projected on either side. 12. Before proceeding to deal with the arguments advanced, we deem it necessary to observe that the testimonies of witnesses, who are closely related to the deceased, cannot be discarded on the mere categorisation that they are interested witnesses. It is the duty of the court to examine their evidence as to whether the same is natural, cogent and veracious. Further, Courts would not expect the witnesses, who are rustic and uneducated, to depose in accurate terms with regard to each and every minute details, which is beyond human capability. If the core aspects involved are spoken to by them in a natural manner, contradictions, which are trivial and venial, would in no way be cited as a reason to water down their evidence as a whole. 13. Of course, PWs-1 to 4 are closely related to each other. At the time when the deceased and PW-1 were in their residence, the occurrence is said to have taken place. It is the evidence of PW-1 that D-2 was taking lunch and she was sitting along with D-1, at which time, the accused reached their https://hcservices.ecourts.gov.in/hcservices/ residence and asked D-1 about PW-2, whereupon, she asked them as to why they are searching for him and on that, she was stabbed by the first accused. When D-2 came out on hearing noise and questioned them, he was also stabbed and both the deceased died instantaneously at the scene of occurrence and the accused ran away from there. The endeavour of the learned counsel to criticise the evidence of PW-1 by stating that she did not speak to the presence of PW-2 at the residence, would be of no use on a wholesome assessment of her evidence along with that of other eye witnesses. In fact, PW-1 in her cross examination stated that on witnessing the brutal murder, she was under shock not even able to perceive that her parents died and in that line, PW-3 also stated in his cross examination that PW-1 did not notice him as well as PW-2. In such circumstance, the testimony of PW-1 as to the alleged occurrence cannot be doubted merely because she does not speak about the presence of PW-2 or PW-3 in view of the aforesaid aspects adverted to by us. The narration of occurrence as put forth by PWs-1 to 3 is consistent and cogent and we do not find any major contradiction or deviation in their evidence in material particulars relating to motive as well as the occurrence. 14. The occurrence is said to have taken place at 2 P.M. and, on telephonic information, PW-12, the Inspector of Police reached the scene of occurrence within 20 minutes and recorded the complaint given by PW-1. PW-13 also reached the scene of occurrence within one hour. Further, on a perusal of the F.I.R. both the motive part as well the acts attributed to the accused have been narrated in a natural sequence. As rightly pointed out by the learned Additional Public Prosecutor, the witnesses are rustic and uneducated and their examination at the police station and recording of their statements cannot be projected to contend that the police had created/fabricated the materials in support of the prosecution case. All relevant details as to the motive, identity of the assailants and their overtacts have been furnished to the police and clearly reflected in the F.I.R. as well as in the evidence of the witnesses in particular PW-1. In such circumstances, we do not find any substance in the contention that the F.I.R. has been fabricated at a later point of time. 15. Coming to the argument advanced by the learned counsel with reference to recovery of weapons, it is the evidence of PW-4 that the accused were seen running from the occurrence place with bloodstained weapons. We have already pointed out that the incident in which the deceased, who are none else than the parents of PW-1, were murdered, had occurred in the presence of PW-1 putting her in complete shock and in such circumstances, https://hcservices.ecourts.gov.in/hcservices/ minor mistakes could not be ruled out and for such mistakes, her statement could not be discarded which was corroborated in material particulars by statements of other eyewitnesses and documents produced by the prosecution. PW-6 is an independent witness examined for the arrest of the accused and recovery of the weapons. It is the positive medical evidence that both the deceased died of homicidal violence and that the cut injuries would have been inflicted with the weapons produced before court. The prosecution witnesses have clearly spoken to the vital aspects viz., the motive aspect, the presence of both the accused at the residence of PW-2, their brutal attack on the parents of PW-2 when they did not find PW-2, their escape from the scene of occurrence, arrest and recovery of weapons at their instance. Some minor discrepancies in narrating the sequence of events would not be a reason to impeach the testimonies of the prosecution witnesses. The trial court assessed the oral and documentary evidence in a proper perspective and rightly passed the order of conviction and sentence as against A-2; therefore, we do not find any valid or acceptable ground to interfere with the same. 16. Coming to C.A. No.875 of 2007 preferred by A-1 as against the order of the trial court in S.C. No.580 of 2004, learned counsel submits that he adopts the arguments put forth by the counsel for the second accused and apart from that, contended that the motive aspect projected by the prosecution as against the first accused to commit the double murder is flimsy, which raises doubt with regard to the case of the prosecution. He contended that almost all contemporaneous documents have been prepared at the police station and that several crucial witnesses have been omitted to be examined, thereby great prejudice has been