Bail Slip The Accused 2 to 6/Appellants 2 to 6 were directed to be released on bail as per the order of this court dated 20.11.06 in MP.No.1/06 in C.A.No.709/06. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 04.08.2008 CORAM THE HONOURABLE MR. JUSTICE P.D.DINAKARAN AND THE HONOURABLE MR. JUSTICE K.N.BASHA CRL.A.No.709 of 2006 1.Ramesh 2.Sakthivel 3.Vijayaraghavan 4.Suresh 5.Radhakrishnan 6.Sankar @ Rangar .. Appellants/A-1 to A-6 Vs Inspector of Police Kullanchavadi Police Station Cuddalore District. [Crime No.310/2004] .. Respondent Appeal filed under section 374[2] Cr.P.C., against the Judgment passed by the learned Principal Sessions Judge, Cuddalore in SC.No.28/2006 dated 27.06.2006. For Appellants : Mr.T.V.Rajagopal for Mr.M.Murali For Respondent : Mr.N.R.Elango,APP https://hcservices.ecourts.gov.in/hcservices/ JUDGMENT [Judgment of the Court was delivered by K.N.BASHA, J.] The challenge in this appeal is to the judgment of the learned Principal Sessions Judge, Cuddalore dated 27.06.2006 made in SC.No.28/2006 convicting and sentencing the appellants/A-1 to A-6 in the following manner:- Accused Conviction under section Sentence awarded A-1 302,147 and 148 IPC 1]Life imprisonment and to pay a fine of Rs.5,000/- in default to undergo 6 months rigorous imprisonment for the offence under section 302 IPC. 2]to undergo 3 months rigorous imprisonment and to pay a fine of Rs.500/- in default to undergo 2 months rigorous imprisonment for the offence under section 148 IPC. 3]No separate sentence awarded under section 147 IPC as the offence under section 147 IPC is covered by section 148 IPC itself. A-2 to A-6 326 r/w 149 and 147 IPC 1]to undergo 7 years rigorous imprisonment and to pay a fine of Rs.2,000/- in default to undergo 4 months rigorous imprisonment for the offence under section 326 r/w 149 IPC. 2]to undergo 2 months rigorous imprisonment and to pay a fine of Rs.500/- in default to undergo 2 months rigorous imprisonment for the offence under section 147 IPC. The sentences are ordered to run concurrently. 2.The facts of the case as projected by the prosecution are as follows:- https://hcservices.ecourts.gov.in/hcservices/ [a]P.W.1 is the brother of the deceased Kalairaghavan; P.W.2 is the father; P.W.3 is the mother and P.W.11 is the sister of the deceased. The deceased was living along with his father, mother, brother and sister. P.W.1 was running a tailor shop in which the deceased was also a tailor. P.W.2, father of the deceased was doing agriculture. One month prior to the occurrence A-1 came to the shop of P.W.1 after consuming alcohol and the deceased asked him to go away. A-1, thereafter, pulled the shirt of the deceased and beat him. A-1, A-3 and A-4 beat the deceased. Being provoked by the attack of the accused 1,3 and 4, the deceased took the scissors and stabbed A-1. The accused gave a report against the deceased. Thereafter, the villagers compromised the dispute between the accused and the deceased. A-1 to A-6, everyday after consuming alcohol, used to go through the shop of P.W.1 and they also used to abuse them. Therefore, there were strained feelings between the accused and the deceased. [b] On the fateful day of occurrence, i.e., 21.06.2004, at 10.00p m the deceased was sleeping in the house along with his family members. They heard the noise of somebody opening their shop. P.W.1 came out from the house and saw the accused opening his shop. A-1 was armed with a knife and the other accused were armed with sticks. All the accused beat P.Ws.1,2,3 and 11 and lifted the deceased and ran away from the house of P.W.1 to the garden of the house. A-1 caught hold of the hands of the deceased and cut the deceased. A-4 stabbed the deceased with scissors; A-2,5 and 6 beat the deceased with sticks; A-1,3,4 again stabbed the deceased and all the accused ran away from the scene of occurrence. P.W.2 took the deceased in an auto to the Government Hospital, Cuddalore. [c] P.W.6, the doctor attached to the Government Hospital, Cuddalore, examined the deceased brought by P.W.2 on 22.06.2004 at 1.10 a.m. Ex.P.2 is the Wound Certificate wherein she found the following injury:- "Lacerated injury of 10x2x1/2 cm [Lt] Parietal scalp." [d] P.W.8, the doctor attached to Government Hospital, Chennai, examined the deceased brought by P.W.2 on 22.06.2004 at 12.38 p.m. Ex.P.9 is the Accident Register issued by him wherein he found multiple cut wounds with bandaged bleeding and contusion on both legs. The deceased informed the doctor that he was assaulted by four known persons. [e] Meanwhile, P.W.1 informed the villagers about the occurrence and went to the respondent Police Station and gave a report Ex.P.1 to P.W.9, the Sub-Inspector of Police on 22.06.2004 at 8.00 a.m. He registered a case in crime No.310/2004 for the offence under sections 147,148,342 and 307 IPC. Ex.P.10 is the First https://hcservices.ecourts.gov.in/hcservices/ Information Report. He sent the same to the higher officials and to the Court concerned. [f] P.W.18 took up the investigation and went to the scene of occurrence at 10.00 a.m. on 22.06.2004. He prepared Ex.P.13-the Observation Mahazar and Ex.P.22-rough sketch in the presence of witnesses. He recovered M.O.9-blood stained earth and M.O.10-sample earth under Ex.P.14. He examined P.Ws.1,3,11, and others and recorded their statements. He received the death intimation at 5.25 p.m. on the same day. He altered the offence to one under section 302 IPC. Ex.P.24 is the altered FIR. He examined P.W.2 and recorded his statement. At 8.00 p.m. on 22.06.2004, he arrested A-2 at Kullanchavadi Kochatram Road. In pursuance of the admissible portion of confession of A-2 under Ex.P.17, he recovered M.O.2-Scissors and M.O.3 series-sticks under Ex.P.18 in the presence of witnesses. A-2 was remanded to judicial custody through Court. [g] P.W.17, took up further investigation on 23.06.2004. He went to the Government Hospital and held inquest on the dead body of the deceased from 1.00 p.m. to 3.00 p.m. on 23.06.2004. Ex.P.21 is the Inquest Report. During inquest, he has recorded further statements from P.Ws.1,2,3 and 11. He sent the body for postmortem. [h] P.W.10, the doctor attached to Madras Medical College Hospital, after receiving the requisition under Ex.P.11, conducted postmortem on the body of the deceased on 23.06.2004 at 3.50 p.m. He found the following injuries:- "INJURIES:- 1] A sutured wound on the left parietal region of scalp measuring 5cm in length. On removing the sutures the edges are irregular and contused 5x2x.5cm in size. 2] A sutured wound 5cm long below the previous injury. On removal of sutures the edges irregular measuring 5x1x.5cm in size. 3] On dissection of scalp extensive scalp contusion over both frontal left parietal and left occipital region of scalp tissue. 4] A fissure fracture 26cm long extending from right temporal bone running through the occipital bone to the left temporal bone. 5] Contusion 8x5x.5cm seen over back of the neck. On further dissection, on opening the dura diffuse sub dural and sub arachnoid haemorrhage seen on both hemispheres." https://hcservices.ecourts.gov.in/hcservices/ Ex.P.12 is the Postmortem Certificate wherein he has opined that the deceased would appear to have died of head injury. [i] On 24.06.2004 P.W.17 arrested A-1 at 7.30 a.m. near Sandhaipettai. In pursuance of the admissible portion of his confession under Ex.P.19, he recovered M.O.1-Billhook [Koduval knife] in the presence of witnesses under Ex.P.20. A-1 was remanded to judicial custody through Court. On 26.06.2004 he examined some more witnesses including the doctor, P.W.6 and recorded their statements. He recovered M.O.7-lungi, M.O.8-shirt from the body of the deceased under Form 95 and sent the same to the Magistrate Court. [j] P.W.19, took up further investigation. He has filed a petition for police custody for A-3,4,5 and 6 before the learned Judicial Magistrate NO.3. On 02.07.2004 he took the police custody of the above said accused. In pursuance of the admissible portion of A-5 under Ex.P.25, he recovered M.O.5-stick under Ex.P.16 in the presence of witnesses. Thereafter, he remanded A-3 to A-6 to judicial custody through Court. [k] P.W.20 took up further investigation and examined the remaining witnesses and recorded their statements. After receiving the Postmortem Certificate-Ex.P.12, chemical examination report- Ex.P.6 and after completing investigation, filed charge sheet against the accused on 14.07.2005 for the offence under sections 147,148,342,506[ii] and 302 read with 34 IPC. 3. The prosecution in order to prove its case examined P.Ws.1 to 20, marked Exs.P.1 to 25 besides marking M.Os.1 to 10. 4. When the accused were questioned under section 313 Cr.P.C. in respect of the incriminating circumstances appearing against them, each of the accused denied their complicity and they have come forward with a version of total denial. They have not chosen to examine any witness or mark any document on their side. 5. Mr.T.V.Rajagopal, learned counsel for the appellants vehemently contended that the prosecution has miserably failed to prove its case by adducing clear and consistent evidence. It is contended that the prosecution has chosen to examine P.Ws.1 to 3 and 11 who are closely related to the deceased and there are contradictions in their evidence in respect of material particulars. It is submitted that the evidence of the eyewitnesses is also not supported by the medical evidence. The sheet anchor of the contention of the learned counsel for the appellants is to the effect that the prosecution has suppressed the earlier reports recorded by the police. Learned counsel would contend that P.W.1 has categorically stated in his cross-examination that after the occurrence, he went to the auto stand which is situate near the https://hcservices.ecourts.gov.in/hcservices/ respondent Police Station and at that time, the Sub-Inspector of Police was present and P.W.1 has narrated about the occurrence to the Sub-Inspector of Police and the Sub-Inspector stated that they will come to the scene of occurrence. P.W.1 further admitted that while taking the deceased in the auto they were stopped by the Sub- Inspector of Police and other police officials and again enquired about the occurrence and the deceased stated about the occurrence to the Sub-Inspector and on instruction of the Sub-Inspector, the injured was taken to the hospital. Learned counsel, by placing reliance on such admission of P.W.1, contended that the prosecution has suppressed the earlier reports given by P.W.1 as well as the deceased which raises serious doubt about the genuineness of Ex.P.1. It is contended by the learned counsel for the appellants that even the present report, Ex.P.1 said to have been received by P.W.9 is recorded after an inordinate delay on 22.06.2004 at 8.00 a.m. only whereas the occurrence took place at 10.00 p.m. on 21.06.2004. 6. We have heard Mr.N.R.Elango, learned Additional Public Prosecutor on the submissions made by the learned counsel for the appellants. 7. 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. 8. The prosecution heavily placed reliance on the evidence of the eyewitnesses P.Ws.1 to 4 and 11. The fact remains that P.W.4 has completely turned hostile and his evidence is neither helpful to the prosecution nor to the defence. Therefore, excluding the evidence of P.W.4, we are left with the evidence of P.Ws.1 to 3 and 11 and all of them are closely related to the deceased as brother, father, mother and sister and as such, we have to scrutinise their evidence with great care and caution. 9. Before proceeding to consider the prosecution case on the basis of the evidence of eyewitnesses P.Ws.1 to 3 and 11, let us now consider the delay in giving report to the police. It is seen that the occurrence is said to have taken place on 21.06.2004 at 10.00 p.m. whereas the report Ex.P.1 was given to the police only on the next day, i.e., 22.06.2004 at 8.00 a.m. to P.W.9, Sub-Inspector of Police. The distance from the scene to the Police Station is only 3 kilometres. We are constrained to state that there is absolutely no explanation given by the prosecution for such inordinate delay in giving the report to the police. Added to this infirmity, it is also pertinent to be noted that the FIR is initially registered for the offence under section 307 IPC apart from other offences under Ex.P.1 and the printed FIR is Ex.P.10 and the FIR was subsequently altered to one under section 302 IPC and the altered FIR is Ex.P.24 and both the report, viz., Exs.P.10 and 24 reached the Magistrate Court only https://hcservices.ecourts.gov.in/hcservices/ at 10.15 p.m. on 22.06.2004. If the FIR Ex.P.10, which is registered at 8.00 a.m. as claimed by the prosecution, the said FIR could have been despatched to the Magistrate Court immediately. The deceased died at 1.10 p.m. on 22.06.2004 as per the death intimation, Ex.P.23 and thereafter, the offence was altered to one under section 302 IPC. It is seen that P.W.18, the investigating officer, has admitted in his cross-examination that both Ex.P.10 and Ex.P.24 have been sent together to the Court only at 10.15 p.m. on 22.06.2004. Therefore, there is absolutely no explanation for not sending the FIR Ex.P.10 to the Court till such time of sending Ex.P.24, the altered FIR which raises serious doubt whether the FIR Ex.P.10, was registered at the time, viz., at 8.00 a.m. on 22.06.2004 as claimed by the prosecution. Therefore, there is not only delay in registering FIR but also inordinate delay in despatching the FIR to the Magistrate Court. 10. The Hon'ble Apex Court in MEHARAJ SINGH AND KALU V. STATE OF U.P. AND OTHERS reported in 1994 SCC [Cri.] 1390 had 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 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." 11. In view of the above settled principle of law laid down by the Apex Court in respect of the delay in registering the FIR, we are constrained to state that in the instant case, as already pointed out, there is not only delay in registering the FIR but also further delay in despatching the FIR to the concerned Court and therefore, such an inordinate delay definitely throws considerable doubt about the prosecution version. 12. Let us now consider the sheet anchor of the contention of the learned counsel for the appellants, viz., the suppression of the earlier reports given by P.W.1 and the deceased. 13. The evidence of P.W.1 discloses that there are two earlier reports given to the police. But the police has suppressed those earlier reports. P.W.1 has categorically stated in his cross- examination that after the occurrence, he went to Kullanchavadi auto https://hcservices.ecourts.gov.in/hcservices/ stand for taking the deceased to the hospital and the respondent Police Station is nearer to the auto stand and further the Sub- Inspector of Police was present at that time. P.W.1 narrated about the occurrence to the Sub-Inspector. It is again stated by P.W.1 in his cross-examination that after taking the deceased in the auto, he once again came to the Police Station, but on the way, they were stopped by the police officials and the Sub-Inspector of Police enquired the deceased as to what happened and the deceased informed him about the occurrence. But the Sub-Inspector has not written the same and instructed them to take the deceased to the hospital. It is needless to state that whenever information or statement is given to the police, it is to be recorded by the police. But, strangely as per the evidence of P.W.1, the Sub-Inspector of Police in spite of enquiring the deceased about the occurrence and the deceased informing about the occurrence, he has not chosen to record the statement into writing. Be it as it may, the undisputed fact remains as per the admitted version of P.W.1 that the police officials are well aware about the occurrence immediately after the occurrence said to have taken place at 10.00 p.m. on 21.06.2004. The defence also rightly suggested to P.W.9, the Sub-Inspector of Police about P.W.1 reporting to the police about the occurrence at 12.00 midnight on 20/21.06.2004 while P.W.9 was very much present at the Police Station. It is further stated by P.W.1 in his cross-examination that there was police Bandobust in his house even during the night of 21.06.2004. It is also categorically stated by P.W.1 that throughout the night till on the next day morning at 8.00 a.m., he was at the scene of occurrence and during that period the Sub-Inspector and constables were at the scene. But P.W.1 has not given any report to them. The yet another statement of P.W.1 in his cross-examination is to the effect that A-2 was brought to the Police Station even during the night of the occurrence. All these categorical statements of P.W.1 throws considerable doubt about the veracity of the prosecution version. In view of the sequence of events narrated by P.W.1, as stated above, we have no hesitation to hold that Ex.P.1 is not a genuine document and the same is nothing but a fabricated document. 14. The Hon'ble Apex Court has held in MARUDANAL AUGUSTI VS. STATE OF KERALA reported in AIR 1980 SC 638 that:- ".. the entire fabric of the prosecution case would collapse if the First Information Report is held to be fabricated...." 15. Added to the above said serious infirmities, it is also pertinent to be noted that P.W.1 has not stated to the police during the course of investigation that A-1 caught hold of the deceased and stabbed him with knife; A-4 stabbed the deceased with scissors; A-2,5 and 6 beat the deceased with sticks and A-1,3 and 4 stabbed the deceased with knife. P.Ws.2 and 3 had also not stated to the police during the course of investigation that A-4 stabbed the deceased with https://hcservices.ecourts.gov.in/hcservices/ scissors. Therefore, it is very clear that the eyewitnesses have come forward with the exaggerated version and that too, for the first time before the Court. 16. The yet another disturbing feature in this case is that in Ex.P.1, P.W.1 has mentioned that only A-1 said to have cut the deceased on his head and there is no specific overt acts alleged against A-2 to A-6 in respect of attacking the deceased. P.W.1 developed his version before the Court alleging that A-1 said to have cut the deceased; A-4 stabbed the deceased with scissors; A-2,5 and 6 beat the deceased with sticks. P.W.1 made the above said improvements deliberately. It is also relevant to note that P.W.1 has not stated specifically on which part of the body of the deceased did A-1 cut or on which part, A-4 stabbed the deceased with scissors. It is pertinent to be noted that as per the overt acts alleged against each of the accused by P.W.1, there is no corresponding injuries found by the doctor, P.W.6 who has first examined the deceased as per Ex.P.2-Accident Register. 17. P.W.2 has also not come forward with any specific overt act except stating that A-1 cut the deceased with knife and A-4 stabbed the deceased with scissors and other accused beat the deceased with sticks without mentioning the parts of the body on which the above said accused alleged to have attacked the deceased. P.W.3 has stated that A-1 cut the deceased with knife; A-4 stabbed the deceased with scissors; A-3 beat the deceased with stick and there is no other overt acts attributed against other accused. P.W.11 has also come forward with a vague allegation to the effect that A-1 cut the deceased with the knife; A-3 and A-4 beat the deceased with sticks. Therefore, it is crystal clear that the eyewitnesses P.Ws.1 to 3 and 11 have not come forward with the consistent version in respect of the overt acts alleged against each of the accused. 18. Added to all these infirmities and inconsistencies, the medical evidence disclosed through the doctor P.W.6, who has first examined the deceased, has found only a single injury, viz., lacerated injury on the parietal scalp. The fact remains that he has not found any other injury, viz., contusions or abrasions to show that the deceased was assaulted with sticks. Therefore, the evidence of the eyewitnesses is falsified by the medical evidence. 19. In view of the above said infirmities, inconsistencies and improbabilities, we are constrained to come to the inevitable conclusion that the impugned Judgment of conviction is unsustainable. Accordingly, the criminal appeal is allowed and the conviction and sentence imposed on the appellants/A-1 to A-6 by the learned Principal Sessions Judge, Cuddalore, in SC.No.28/2006 dated 27.06.2006 are hereby set aside. https://hcservices.ecourts.gov.in/hcservices/ 20. It is reported that A-1 is in jail and A-2 to A-6 are on bail. Hence, the appellant/A-1 is directed to be set at liberty forthwith, if he is not required in connection with any other case. The bail bond, if any, executed by A-2 to A-6 shall stand terminated and the fine amount, if any paid by A-2 to A-6 shall be refunded to them. sd/- Asst.Registrar /true copy/ Sub Asst.Registrar ap To 1. The Principal Sessions Judge Cuddalore. 2. The Inspector of Police Kullanchavadi Police Station Cuddalore. 3. The Public Prosecutor High Court, Chennai. 4. The Judicial Magistrate, Cuddalore. 5. Do Thro' The Chief Judicial Magistrate, Cuddalore. 6. The Superintendent, Central prison, Cuddalore. 7. The District Collector, Cuddalore. 8. The Inspector General of Police, Chennai. 9. The Record Keeper, Criminal Section, High Court, Madras. +1 cc To Mr.M.Murali, Advocate, SR.42397 Crl.A.No.709/2006 rl [co] gkg/14.8 https://hcservices.ecourts.gov.in/hcservices/