IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 3-8-2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE C.S.KARNAN CRL.A.Nos.194, 197 and 813 of 2008 D.Napolean .. Appellant/A-4 in CA 194/2008 1.Vijayan @ Viji 2.Ramu @ Raman .. Appellants/A-1 & A-2 in CA 197/2008 Radio Viji @ Viji .. Appellant/A-3 in CA 813/2008 vs State by: Inspector of Police C1, Flower Bazaar Police Station Chennai 1 Crime No.625/2006 .. Respondent/ Complainant in all appeals Criminal appeals preferred under Sec.374(2) of the Code of Criminal Procedure against the judgment of the Additional District and Sessions Judge, Fast Tract Court No.II, Chennai, in S.C.No.309 of 2007 dated 12.2.2007. For Appellants : Mr.R.Shunmugasundaram Senior Counsel for Mr.A.Stalin for A-4 (Crl.A.No.194/2008) Mr.V.Gopinath Senior Counsel for Mr.L.Mahendran for A-1 and A-2 (Crl.A.No.197/2008) Mr.AR.L.Sundaresan Senior Counsel for Mr.S.Sugendran for A-3 (Crl.A.No.813/2008) https://hcservices.ecourts.gov.in/hcservices/ For Respondent : Mr.Hasan Mohamed Zinna Additional Public Prosecutor (All Crl.Appeals) COMMON JUDGMENT (Judgment of the Court was delivered by M.CHOCKALINGAM, J.) This judgment shall govern these three criminal appeals namely C.A.194/2008 by A-4, C.A.197/2008 by A-1 and A-2 and C.A.813/2008 by A-3. 2.All these three appeals challenge a judgment of the Additional Sessions Division, Fast Track Court No.II, Chennai, whereby the appellants ranked as A-1 to A-4 respectively along with A-5 stood charged, and on trial, A-1 to A-4 were found guilty and awarded punishment as follows: ACCUSED CHARGES FINDING PUNISHMENT A-1, A-2, A-3 & A-5 120(B) IPC --- A-1 to A-5 147 IPC Not guilty A-1 to A-5 148 IPC Not guilty A-1 to A-5 341 IPC A-1 to A-4 guilty 1 month SI A-1 to A-5 353 IPC A-1 to A-4 guilty 1 year RI A-1 to A-5 302 IPC A-1 to A-4 guilty under Sec.302 r/w 120 (B) IPC Life imprisonment with a fine of Rs.500/- and default sentence A-1 to A-5 506(2) IPC A-1 to A-4 guilty 3 years RI A-5 was acquitted of all the charges levelled against him. 3.Short facts necessary for the disposal of these appeals can be stated as follows: (a) P.Ws.1 and 2 were the Head Constables attached to C2 Elephant Gate Police Station. On 7.11.2006, they were on duty between 7.00 A.M. and 2.00 P.M. at a place within the jurisdiction of C1 Flower Bazaar Police Station. P.W.7 is the father; P.W.8 is the sister; and P.W.9 is the brother-in-law of the deceased Dillibabu. One Veera, the brother of A-1 and A-2, was murdered. They were under the impression that it was Dillibabu who murdered their brother. A-3 and A-4 are the associates of A-1 and A-2. (b) On the date of occurrence namely 7.11.2006, at about 1.30 P.M., Dillibabu went to the Central Prison to meet a few of his friends who were in custody, and he was coming back near the Central Railway Station by walk. At that time, when he was just near the https://hcservices.ecourts.gov.in/hcservices/ Police Booth situated near the Central Railway Station, A-1 to A-4 armed with deadly weapons chased him. On seeing this, he began to run and fell at a place in front of the police booth. At that time, A-3 pointing towards the deceased uttered "It was he who murdered their brother Veera. Cut him". On his instigation, A-1 and A-2 cut him. The same was witnessed by P.W.1. When P.W.1 went to the rescue, immediately, A-3 and A-4 caught hold of him and were showing a knife. At that time, A-3 and A-4 leaving P.W.1 joined others in cutting the deceased. The occurrence was witnessed by P.Ws.1, 3 to 6, 21, 23 and 29. P.W.1 and others went nearby and found Dillibabu was breathing and alive. At that time, there was drizzling. The driving license was found in the pocket of Dillibabu. A photo was also pasted in that. From that, they came to know that it was Dillibabu, and his father's name was one Mohanraj. P.W.2 was a duty constable in the bus stop. He came nearby to whom P.W.1 informed about the occurrence. (c) P.W.30, the Sub Inspector of Police, attached to the respondent police station, was on patrol that day. On receipt of the information, he rushed to the spot and stopped a fish cart which was on the way, and the body of Dillibabu was taken by him along with one Rajendran to the Government General Hospital. P.W.22, the Doctor, who was in the Hospital, on medical examination, declared him dead. He noted the injuries found in the dead body, and the copy of the accident register is marked as Ex.P10. (d) P.W.1 gave an intimation to P.W.31, the Inspector of Police, attached to C1 Flower Bazaar Police Station. He also came to the spot. P.W.1 accompanied P.W.31, and they went to the Government General Hospital. There they came to know that Dillibabu is already dead. Thereafter, they went to the respondent police station where P.W.1 gave Ex.P1, the report, on the strength of which a case came to be registered in Crime No.625 of 2006 under Sections 341, 302, 342, 352 and 506(2) of IPC. The printed FIR, Ex.P32, was despatched to the Court. (e) P.W.31 took up investigation, proceeded to the spot, made an inspection and prepared an observation mahazar, Ex.P33, and a rough sketch, Ex.P34. Then he conducted inquest on the dead body of Dillibabu in the presence of witnesses and panchayatdars and prepared an inquest report, Ex.P36. Photographs were taken through P.W.10, the photographer. The photos and negatives are marked as M.O.15 series. (f) Pursuant to a requisition made, the dead body was subjected to postmortem by P.W.15, the Tutor in Forensic Medicine, Madras Medical College. The Doctor has issued a postmortem certificate, Ex.P5, with his opinion that the deceased would appear to have died of head injury (multiple chop wounds). (g) Pending investigation, the Investigator came to know that A-1 to A-3 surrendered before the III Metropolitan Magistrate, Chennai, on the next day i.e., 8.11.2006. Then police custody was sought for, and the same was ordered. They were taken to police custody on 9.11.2006, and were interrogated. A-1 came forward to give a confessional statement voluntarily. The same was recorded. The admissible part is marked as Ex.P38. He produced M.O.6, aruval, and M.O.7, shirt, which were recovered under a cover of mahazar. A-2 gave a confessional statement voluntarily, which was recorded. The admissible portion is Ex.P40. He produced M.O.8, knife, and M.O.9 shirt, which were recovered under a cover of mahazar. A-3 gave a confessional statement https://hcservices.ecourts.gov.in/hcservices/ which was recorded. The admissible part is Ex.P42. He produced M.O.10, aruval, and M.O.11, shirt, which were recovered under a cover of mahazar. The accused were sent for judicial remand. (h) P.W.32, the Inspector of Police, took up further investigation. A-5 was arrested on 13.11.2006. He volunteered to give a confessional statement which was recorded. The admissible part is Ex.P44. Then he produced a knife which was recovered under a cover of mahazar. The Investigator came to know that A-4 surrendered before the Court on 11.12.2006, and police custody was taken. He gave a confessional statement which was recorded. Ex.P48 is the admissible part. He produced a knife and a shirt which were recovered under a cover of mahazar. A-4 and A-5 were sent for judicial remand. (i) The test identification parade was conducted by P.W.27, the XVI Metropolitan Magistrate, Chennai. The identification parade proceedings are marked as Ex.P18. All the material objects were subjected to chemical analysis, which resulted in Ex.P4, the Chemical Analyst's report, and Ex.P6, the Serologist's report. On completion of investigation, the Investigator filed the final report. 4.The case was committed to Court of Session, and necessary charges were framed. In order to substantiate the charges, the prosecution examined 32 witnesses and also relied on 49 exhibits and 15 material objects. On completion of the evidence on the side of the prosecution, the accused were questioned under Sec.313 of Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses, which they flatly denied as false. On the side of the defence, one Vasan was examined, through whom one document was marked as Ex.D1. The trial Court heard the arguments advanced, looked into the materials available and took the view that the prosecution has proved the case beyond reasonable doubt and hence entered a judgment of conviction and sentence. Insofar as A-5, the trial Court has made an order of acquittal. Under the circumstances, these appeals have arisen at the instance of A-1 to A-4 respectively. 5.Advancing arguments on behalf of A-1 and A-2, the learned Senior Counsel Mr.V.Gopinath would submit that in the instant case, the occurrence, according to the prosecution, has taken place on 7.11.2006 at 1.30 P.M.; that P.Ws.1, 3 to 6, 21, 23 and 29 were shown as eyewitnesses out of whom P.Ws.5, 6, 21 and 23 have turned hostile; that the evidence that was available for the prosecution before the trial Court was that of P.Ws.1, 3, 4 and 29; that P.W.2 has claimed that he came to the place of occurrence after the incident was over; and that out of these witnesses, P.Ws.1, 3 and 4 are Police Constables. 6.The learned Senior Counsel assailing the prosecution story would submit that in the instant case, P.W.1 could not have been in the place of occurrence; and that Ex.P1, the report, pursuant to which the case has been registered, could not have been the first information at all. The learned Senior Counsel pointing to the evidence of P.W.22, the Doctor, and also the accident register copy, Ex.P10, would submit that it is mentioned therein that the deceased was an unknown person, and he was also attacked by four unknown persons. He would further submit that according to P.W.1, he was on https://hcservices.ecourts.gov.in/hcservices/ duty, and he found that the deceased was actually walking and the accused persons four in number were actually chasing him, and out of this four, one of the accused was a tall man, and he called A-1 and A- 2 by names and pointing to the deceased uttered that it was he who murdered their brother Veera, and thus he should be finished off; and that Ex.P1 would contain the names of A-1 and A-2; but, the names of A-3 and A-4 are not shown therein. 7.Added further the learned Counsel that the occurrence has taken place at about 1.30 P.M.; that P.W.1 would claim that he was also present at the place of occurrence; but he did not accompany the deceased to the hospital, and he kept himself there, and he was waiting for the arrival of P.W.31, the Inspector of Police; that the body was actually taken, according to the prosecution case, by P.W.30, the Sub Inspector of Police, and one Rajendran; but the said Rajendran was not examined by the prosecution; that from the evidence of P.W.1, it would be quite evident that the information before the Court namely Ex.P1, was not the first information as he has categorically admitted that after he went to the Government General Hospital along with P.W.31, he was enquired, and he gave a statement, and the same was recorded by P.W.31, and thereafter he accompanied P.W.31 to the police station where he gave another statement, and the said statement has also been recorded; that from the evidence of P.W.1, it would be quite clear that that there were two statements recorded by P.W.31, one at the Government General Hospital and the other at the police station; that now at this juncture, the FIR though claimed to be registered at 3.30 P.M., has reached the Metropolitan Magistrate at about 10.30 P.M. after a lapse of seven hours; and that P.W.31 was cross-examined about the delay; but he did not know how the delay was caused, and he would claim that the FIR was handed over to the Head Constable to be taken to the Court immediately; but for the reasons best known to the prosecution, when there was an inordinate delay, the Head Constable to whom the FIR has been handed over was not examined. 8.Now the learned Senior Counsel would submit that P.W.8 has categorically stated that two persons A-1 and A-2 came to her house and threatened that her brother Dillibabu would be murdered; that P.W.8 has also claimed that she came to the hospital at about 4.00 P.M.; that it would be quite clear that the names of these accused namely A-1 and A-2, were actually known to P.W.8, and hence their names should have been taken from her and the second report, Ex.P1, what is now placed before the Court has been prepared; and that the earlier report which was originally recorded by P.W.31 from P.W.1 at the hospital has been suppressed. 9.Added further the learned Senior Counsel that in the instant case, P.W.7, the father of the deceased, would claim that his son Dillibabu came in a motorbike on the day; that P.W.9 the brother-in- law of the deceased, would also claim that the motorbike belonged to him; that they have also given the registration number of the motorbike as TN 02 B 6823; that so far as this motorbike is concerned, on the day a photo was taken by a news reporter from Dhinamalar, and it also came in the newspaper as a news item on 8.11.2006; that D.W.1 has been examined to that effect; that in that photograph, the https://hcservices.ecourts.gov.in/hcservices/ particular motorbike with the registration number is also exhibited, and thus it was a defence plea that on the date when the occurrence had taken place, the deceased came in a motorbike which was actually found in the place of occurrence; that under the circumstances, the evidence of P.W.1 and the other witnesses that he was coming by walk at that time was nothing but false; that it would be indicative of the fact that the witnesses could not have seen the occurrence at all; and that the prosecution has failed to put forth any explanation how the said motorbike happened to be in the place of occurrence. 10.Added further the learned Counsel that as far as the other witnesses are concerned, it is not the case of the prosecution that they actually knew the accused already; that as far as the identification parade was concerned, those witnesses were not taken to the identification parade; that it was only P.W.1 who was taken; that all these accused persons actually surrendered before the Court, and they were taken to police custody on 11.11.2006 and were kept in custody till 14.11.2006; that they were in custody for a period of four days; and that it would be clearly indicative of the fact that there was all possibility for the police to show them to P.W.1 who was the Head Constable of the particular police station. 11.The learned Senior Counsel would further submit that P.W.27, the Metropolitan Magistrate, conducted the test identification parade; that at the earliest opportunity, the accused persons complained him that they were shown to the witnesses, and apart from that, photographs were also shown to them, and thus the test identification parade was of no consequence at all. 12.Added further the learned Senior Counsel that in the instant case, the inquest report and the statement of P.W.1 reached the Court only on 11.11.2006, after a period of four days; that in the inquest report which was claimed to have been prepared on the evening hours of the very day, the name of P.W.1 did not find place; that further Column No.14 of the inquest report would clearly indicate that the dead body was handed over to the relatives of the deceased after the postmortem was over, at about 2.30 P.M. on 8.11.2006; that when such a fact of handing over of the dead body on the next day has been incorporated in the inquest report, it would clearly indicate that the inquest report could not have been prepared on 7.11.2006, but at a later date; that the postmortem has taken place earlier; but the inquest report has been prepared according to the convenience of the Investigator; that no inquest report as claimed by the prosecution was prepared on 7.11.2006; and that it can be well stated that no inquest was conducted at all. 13.Added further the learned Senior Counsel that as far as the alleged confessions and recovery of the material objects were concerned, the prosecution examined P.W.28 in respect of A-1 to A-3; but, he has turned hostile, and as far as A-5 was concerned, P.W.26 was examined; but, he has turned hostile, and under the circumstances, no importance could be attached to the recovery also; that as far as the other witnesses are concerned, except P.W.1 others were not taken to identify the accused at the parade; that it is a case where they https://hcservices.ecourts.gov.in/hcservices/ claimed that in a public place the occurrence has taken place within a few minutes; that under the circumstances, the identification was a must; but not done so; that while the Investigator thought it fit that identification parade was to be conducted as far as P.W.1 was concerned, it was equally applicable to the other witnesses also, but not done so, and this would affect the prosecution story; that as far as P.W.1 was concerned, from the materials available it would be quite clear that P.W.1 could not have been in the place of occurrence at all; that under the circumstances, the trial Court has misdirected itself since it was a murder in a public place and that too in a day light and also in the city, and has taken an erroneous view, and hence they are entitled for acquittal. 14.Apart from adopting the contentions put forth by the other Counsel, the learned Senior Counsel Mr.AR.L.Sundaresan putting forth the case on behalf of A-3 in CA 813/2008 would submit that Ex.P1 placed before the trial Court, was not the first information and should have been rejected by the trial Court since P.W.1 has categorically admitted that he gave two statements; that as far as the identification parade was concerned, three witnesses were taken for that purpose; but, except P.W.1, two other witnesses could not identify; that as far as P.W.1 was concerned, the identification proceedings should have been completely rejected for the reasons that both A-3 and others were taken on police custody and were kept in custody for three days; that P.W.1 was a police constable; that under the circumstances, there was all possibility for him to easily identify them; that apart from that, A-3 and other accused at the time of identification parade made a complaint before the Magistrate that the photographs were taken, and they were already identified to the witnesses, and thus the identification parade loses its significance. 15.Added further the learned Senior Counsel that the place of occurrence was also found to be different; that the deceased was also coming in a motorbike; but no explanation was tendered; that as far as P.W.29 was concerned, he was examined as a witness by the Investigator after a period of nearly one or two months; that no explanation was tendered; that even the address of P.W.29 was not known; that he was a witness who was actually brought before the Court to strengthen the prosecution case if possible; that the entire case rested upon the evidence of P.W.1; but P.W.1 could not have been in the place of occurrence at all; that under the circumstances, the prosecution has miserably failed to prove its case, and hence A-3 is entitled for acquittal since the trial Court has taken an erroneous view. 16.Advancing arguments on behalf of A-4, the learned Senior Counsel Mr.R.Shunmugasundaram would submit that the name of A-4 is not found place in Ex.P1 or FIR; that he actually surrendered before the Court on 11.11.2006; that he was taken to police custody; that he was in police custody for four days i.e., till 14.11.2006; that he is alleged to have given a confessional statement, and the admissible part is marked as Ex.P48; that though the prosecution claimed that a knife and a shirt were recovered from him and two witnesses are shown in the list of witnesses, they have not been examined; that as far as A-4 was concerned, no identification parade was conducted; that as far https://hcservices.ecourts.gov.in/hcservices/ as the other witnesses are concerned, P.Ws.3 and 4 did not participate in the identification parade; that the statements of P.Ws.3, 4 and 29 have reached the Court on 26.3.2007 after a long lapse of time; that further A-4 has actually complained to the Magistrate at the time of identification parade that the photographs were taken, and he was also identified already; that apart from that, the identifying witness was a police constable who could easily identify the accused since they were in police custody for number of days, and under the circumstances, he is entitled for acquittal in the hands of this Court. 17.The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made. 18.It is not in controversy that following the incident that took place at about 1.30 P.M. On 7.11.2006, in front of the Central Railway Station where a police booth is situated, one Dillibabu was done to death. Immediately the body was taken to the Government General Hospital where he was declared dead by P.W.22, the Doctor. The accident register copy is marked as Ex.P10. Following the registration of the case in Crime No.625 of 2006 and the inquest made by P.W.31, the Inspector of Police, attached to C1 Flower Bazaar Police Station, the dead body was subjected to postmortem by P.W.15, the Doctor, who has given a categorical opinion that he died out of head injury (multiple chop wounds). The fact that Dillibabu died out of homicidal violence was never disputed by the appellants before the trial Court. Hence the trial Court felt no impediment in recording so and rightly too. 19.In order to substantiate that the appellants have attacked Dillibabu and caused his death at the time of occurrence, the prosecution adduced evidence by marching P.Ws.1, 3 to 6, 21, 23 and 29 as eyewitnesses, out of whom P.Ws.1, 3, 4 and 29 have supported the prosecution case, while others have turned hostile. As far as these four witnesses were concerned, P.W.1 was the Head Constable attached to C2 Elephant Gate Police Station, and P.Ws.3 and 4 were Head Constables attached to the respondent police station. Admittedly, they were on duty at the time when the occurrence has taken place. P.W.29 was an independent witness. 20.At the outset, it must be stated that it is not a case where independent witnesses were not examined; but, actually independent witnesses were examined, out of whom number of witnesses have turned hostile. However, the prosecution had to its benefit the evidence of P.Ws.1, 3, 4 and 29. The occurrence has taken place at about 1.30 P.M. on 7.11.2006. It is not in controversy that P.W.1 was actually on duty at the time when the occurrence has taken place. P.W.1 has categorically deposed that he was on duty near the place; that at that time, the deceased was found running; that four persons were chasing him out of whom, a tall person called A-1 and A-2 by names and uttered the words pointing to the deceased that he was the person who committed the murder of their brother Veera, and hence he should be finished off; that when that tall man pointed out so, A-1 and A-2 https://hcservices.ecourts.gov.in/hcservices/ began to cut the deceased on different parts of the body; that when he fell down, the tall person also joined others in cutting him; that looking at this, he (P.W.1) went tot he rescue; that at that time, the tall person and the other held him; that he tried his best, but could not relieve himself; that the tall person further told A-1 and A-2 to finish him off till he dies; that accordingly they cut him; and that when he (P.W.1) was relieved, all the