CRL A 388/04 ------------ The 3rd Appellant/Accused No.3 Viz., Raja was directed to be released on bail by the order of this Court dated 6.7.04 and made in Crl.MP No. 7001/04 in Crl.A 388/04. --------- IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 18.07.2006 CORAM THE HONOURABLE MR. JUSTICE R.BALASUBRAMANIAN AND THE HONOURABLE MR. JUSTICE M.JEYAPAUL CRL. APPEAL NO. 388 OF 2004 1. Vijayan 2. Chitti Babu 3. Raja 4. Udhaya @ Udhayakumar 5. Krista @ Krishnan 6. Giri 7. Neelakandan .. Appellants/Accused Nos. 1 to 7 - Vs - State by The Inspector of Police H-6, Dr. Radhakrishnan Nagar Police Station, Chennai. .. Respondent / Complainant (Crime No. 1045/2000) Criminal Appeal filed against the conviction and sentence passed by the learned Addl. Sessions Judge (Fast Track Court No.3), Chennai, in S.C. No.282 of 2001 dated 18.12.2003 as stated therein. For Appellants : Mr. V.Gopinath, SC, for Mr. L.Mahendran For Respondent : Mr. N.R.Elango, APP JUDGMENT (JUDGMENT OF THE COURT WAS DELIVERED BY R.BALASUBRAMANIAN, J.) Appellants, seven in number, are challenging their conviction in S.C. No.282 of 2001 on the file of the Additional Sessions Judge https://hcservices.ecourts.gov.in/hcservices/ (Fast Track Court III), Chennai. A-1, A-2 and A-4 to A-7 were charged under Sections 147, 148, 302 and 506 (II) IPC while A-3 was charged under Sections 147, 148, 302 read with 149 and 109 and 506 (II) IPC. The convicted accused have filed this appeal before this Court. Heard Mr.V.Gopinath, learned senior counsel for the appellants and Mr.N.R.Elango, learned Addl. Public Prosecutor appearing for the State. 2. The prosecution case is that at about 6.00 p.m. on 12.11.00, when Chitti – the deceased in this case, was on his way to the police station to give a complaint, about the earlier occurrence that took place at about 3.00 p.m. on that day in his house, in the company of P.W.s 1 to 3, was brutally attacked by the accused resulting in his death and, therefore, punishable as referred to above. To substantiate their case, the prosecution examined P.W.s 1 to 15 besides marking Exs.P-1 to P-42 and M.O.s 1 to 8. The defence neither brought in any oral nor documentary evidence. 3. P.W.1 is the wife of the deceased. She knows the accused. At about 3.30 p.m. on 12.11.00, all the accused came to her house and found fault with her husband in being an informant to the police about the illegal activities of the accused and then challenged him that if he continues to be so, namely, an informant, he would be killed. Then they left. The aggrieved party decided to give a complaint to the police on that incident in the evening at the sunset time. Accordingly, around 6.00 p.m., the deceased was proceeding to the police station in the company of P.W.s 1 to 3 to give a complaint. Enroute A-3 saw them and immediately went and brought the other accused. On A-1 pointing out P.W.1's husband saying "here goes Chitti (deceased)" A-3 caught hold of her husband's hand from behind. This was followed by A-1 and A-2 cutting on the head of her husband and A-7 also did not keep quiet since he also attacked on her husband's chest. All the accused broke soda bottles and with the broken bottles indiscriminately stabbed her husband. Her husband fell down dead with bleeding injuries. All the accused intimidated the witnesses by throwing soda bottles at them and chased them. After sometime, the witnesses gathered themselves and came back to the scene where they were informed by those present at the scene that her husband had been taken in an autorickshaw to the hospital. Immediately P.W.s 1 to 3 went to the Government Stanley Hospital in an auto where they were informed by the duty doctor that her husband has already died. Police came and took them to the police station where she was examined and as she was narrating the complaint the police reduced into writing; read it over to her and after she affirmed it to be correct, her signature was obtained in it. Ex.P-1 is the said complaint. M.O.s 1 to 4 are the weapons of offence used by the various accused during the commission of the crime. 4. P.W.13 is the investigating officer in this case. Around https://hcservices.ecourts.gov.in/hcservices/ 11.00 p.m. on 12.11.00 when he was in the police station, P.W.1 appeared before him and gave a complaint, which he registered in his police station crime No.1045/00 under Sections 147, 148, 302 and 506 (II) IPC. Ex.P-20 is the printed first information report prepared by him. He then commenced investigation. He reached the scene of occurrence and prepared Ex.P-21, the rough sketch and Ex.P-22, the observation mahazar. He examined P.W.s 2, 3 and others, who were at the scene, and recorded their statements. At 8.00 a.m. on 13.11.00 he conducted inquest over the dead body in the presence of panchayatadars and witnesses and prepared Ex.P-23, inquest report. During inquest he examined P.W.s 1 to 3 and others by recording their statements. Then he sent a requisition, Ex.P-24 to the hospital for conducting post-mortem. P.W.10 is the police constable, who identified the dead body in the hospital for post-mortem and produced the requisition for post-mortem. After post-mortem he handed over the dead body to P.W.1 after removing M.O.s 5 to 8, which he handed over to the investigating officer along with his report, Ex.P-17. 5. P.W.14 is the Assistant Professor of Forensic Medicine in the Government Stanley Hospital. Dr.Gururaj had conducted post-mortem on the dead body in this case. As he was dead, P.W.14 was examined to speak about the post-mortem conducted by Dr.Gururaj and his opinion as he was a co-professor along with Dr.Gururaj in the same hospital and was well acquainted with the handwriting and signature of Dr.Gururaj. Dr.Gururaj, during post-mortem, found various symptoms on the dead body as noted by him in Ex.P-41, the post-mortem report. The symptoms noted during post-mortem are as hereunder :- "Ante mortem Injuries :- 1) A spindle shaped gaping stab wound 2 x 1 cm x 3.5 cm on the back of the right wrist joint and lower third forearm. The injury has cut the right radius bone producing a deformity. The angles are acute and margins clean cut with tailing at its inner end. O/D : the underlying tissues found bruised. 2) 1 cms above and lateral to the injury No.1 an irregular incised like wound seen with both angles and margins irregular measuring 2 x 1 x 0.5 cms. 3) 2 cms lateral to injury No.1 a gaping stab wound 3 x 2 x 3.5 cms seen on the inner aspect of right forearm. It has cut through the underlying bone for 1 cms depth with bruising of underlying soft tissues. The angle of margins are irregular. 4) Spindle shaped gaping incised wound 3 xc 1.5 x 1 cm seen on the anterior aspect of right arm 4.5 cms above elbow joint, the angles are acute and margins clean cut. 5) 10 cms above injury (4) an oblique U shaped gaping stab wound 5 x 2 x 6 cms seen on the outer aspect of right forearm. The margins are clean cut. Upper https://hcservices.ecourts.gov.in/hcservices/ angle acute and lower angle obtuse. The underlying tissues found bruised. 6) A gaping incised wound 3.5 x 1 x 1.5 cms seen 2 cms inner to injury (5). The margins and angles are irregular with bruising of underlying soft tissues. 7) A streak like incised wound 1 x 0.5 cm x cuticle deep seen on the middle third of outer aspect of right arm. 8) A gaping penetrating wound seen on the web space of left index finger and the index finger 3 x 1 cm cutting through and through the web space and the bones and soft tissues of the index finger. The angles and margins are clean cut with bruising and clinging clots. 9) A curved incised wound 4.5 x 0.5 cms and cuticle deep seen in the front of left chest close to shoulder joint and 4 cms below the top of shoulder joint and 4 cms below the top of shoulder with tailing on the outer part for 2 cms length. 10) A spindle shaped incised wound 1 x 0.5 x 0.5 cms seen on the left upper abdomen just below the lowest part of the rib cage casto-chondral margin. The surrounding tissues show bruising. 11) A gaping spindle shaped 3 x 1 x 5 cms stab wound seen on the middle of abdomen 6 cms above the umblicus. The margins are clean cut and angles acute. 12) 6 cms above injury (11) a gaping incised wound 5 x 3 x 2 cms seen on the left side abdomen 2 cms left lateral to midline. The margins and angles are clean cut. 13) 2 cms lateral to injury No.11 on the right side of abdomen 4 x 1 cm x viscera deep stab wound seen. The angles and margins are clean cut. 14) 8 cms right lateral and above the umblicus a gaping stab wound 3 x 1.5 x 4 cms deep with loops of contused intestines and fats protruding through it. 15) 6 cms below right nipple and 8 cms right lateral to midline, a spindle shaped gaping incised wound 3 x 1 x 1 cms seen with the margins abraded and angles acute. 16) 2 cms below injury No.15, an oblique gaping stab wound 3 x 1 cm x visceral deep seen on the right chest wall. The margins are abraded and angles acute and clean cut. 17) 14 cms right lateral to midline and 4 cms below injury (16) an abraded superficial streak like incised wound 0.5 x 0.5 cms and cuticle deep seen with tailing of the inner end. https://hcservices.ecourts.gov.in/hcservices/ 18) On the right lateral chest wall 18 cms below right axillary pit, a gaping penetrating stab wound 3 x 1 x visceral deep seen between the 8th and 9th ribs (intercostal space lateral curvature). 19) 23 cms below the right posterior axillary a gaping 3 x 5 x organ deep (7 cms) stab wound seen on the right lateral chest wall. The angles and margins are irregular. 20) An irregular wound 2 x 0.5 cms cuticle deep seen over the middle and lateral third of right clavicle. 21) An irregular gaping incised wound 3 x 1 x 1 cms seen below the left middle third clavicle and clavicular region with the margins acute and angles are sharp. 22) 2 cms above and inner to injury 20 and 21, 4 streak abrasions 3 x 0.5 cms x cuticular deep each seen on the left supra clavicular regions and left lower aspect of neck. 23) On the lateral one third of right eyebrow a spindle shaped incised wound 3 x 1 x 1 cms the angles and margins are sharp and underlying soft tissues found bruised. 24) A vertically placed incised wound 3 x 1 x 2 cms seen on the mid nasal bridge. The margins are irregular and it has cut through the nasal bones with clots adherent. 25) A superficial incised wound 1 x 0.5 cms x cuticle deep seen on the mid forehead 1 cms below the anterior hair margin. 26) A gaping incised wound seen on the vertex of head 7 x 1 cm x bone deep. The margins are clean cut. It has involved as a cut on the outer table and produced a radiating depressed fracture 2 x 1 cms with blood clots over the duramater. 27) 2 cms behind injury (26) a vertically placed incised wound 4 x 1 x bone deep seen on the right parietal region. The angles and margins are clean cut. It has involved the right parietal bone upto outer table. 28) A streak incised wound vertically placed 3 x 0.5 cms x cuticular deep seen on the right back of mid chest. 29) An irregular incised wound 4 x 1 x 0.5 cms seen on the right outermost part of the nape of the neck. 30) 2 cms above injury (29) an irregular incised wound 3 x 1 x 0.5 cms seen on the neck right side with tailing for 1 cms on outer aspect. https://hcservices.ecourts.gov.in/hcservices/ O/D : Scalp )Injury 25, 26, 27) : The mid frontal, mid parietal and right parietal scalp tissues show underlying bruising. The outer table over the right parietal bone show a cut fracture involving the outer table and the mid parietal bone shows a cut fracture involving the outer table and radiating depressed fracture 2 x 1 cms with extra dural hematoma below it. O/D Abdomen (injuries 11, 12, 13 & 14) : A stab wound injury (11) has produced bruising of the underlying soft tissues and produced a punctured wound over the small intestine 60 cms above the iliocaecal junction with blood and blood clots extending anteriorly. The direction is downwards and inwards. The stab injury (13) has produced an irregular laceration over the underlying right lobe of liver 3 x 1 x 2 cms with blood clots adherent. The direction is inwards, downwards and laterally. The stab wound injury (14) has produced a contusion 3 x 2 x 1 cms just close to the omental tear. O/D Chest (Injury 16) : The stab wound has cut through the 6th and 7th intercostal space obliquely without involving the ribs and produced a clean cut to the underlying lung 2 x 1 x 1 cms with clots of blood adherent. Right lung shows partial collapse with 100 ml of clotted blood in thoracic cavity. The direction is inwards and forwards. (Injuries 18 & 19) : It has cut through the 9th and 10th intercostal spaces lateral curvature for a depth of 7 cms producing a cut over the 9th rib and cut through the lower lobe of lung, right lobe of liver, diaphragm irregularly. The direction is downwards, forwards and inwards. Heart : Intact. NAD. c/s contains few ml of fluid blood. Lungs : Right lung partially collapsed c/s pale. Stomach : Intact – c/s contains 10 mg of fully digested food material. Pungent odour. Mucosa pale. Liver, Spleen & Kidneys : c/s pale. Intestines : Contain yellowish chyme. Pelvis & Spinal column : Intact." As per the post-mortem report, death appears to have occurred as a https://hcservices.ecourts.gov.in/hcservices/ result of shock and haemorrhage due to multiple injuries. Ex.P-40 is the requisition received at the hospital for conducting post-mortem. 6. P.W.13 continued his investigation further. He examined P.W.12, the doctor before whom at 7.30 p.m. on 12.11.00 an unidentified dead body of a male was produced. P.W.12 would state that an unidentified dead body of a male was brought before him at 7.30 p.m. on 12.11.00 and finding the person already dead, he sent the dead body to the mortuary and informed the resident medical officer. Ex.P-19 is the accident register issued by him. P.W.13 arrested A-4 and A-5 on 13.11.00 in the presence of witnesses and examined them. Each one of the arrested accused gave a voluntary confession statement. The admissible portion of the confession statement of A-4 is Ex.P-25 and Ex.P-26 is the admissible portion of the confession statement of A-5. Pursuant to the respective confession statements, weapons of offence came to be recovered under Exs.P-27 and P-28 in the same evening attested by witnesses. On the occurrence day itself, from the scene of occurrence, P.W.13 recovered bloodstained earth and sample earth under Ex.P-29 and broken soda bottles under Ex.P-30. At 12.30 p.m. on 14.11.00 P.W.13 arrested A-6 in the presence of witnesses and examined him. He also confessed and the admissible portion of the confession statement of A-6 is Ex.P-31. Pursuant to Ex.P-31, a broken soda bottle came to be recovered under Ex.P-32 attested by witnesses. At 4.30 p.m. on 17.11.00 P.W.13 arrested A-3 in the presence of witnesses and examined him. A-3 also gave a voluntary confession statement. On 20.11.00 P.W.13 took out an application to get A-1, A-2 and A-7 into police custody, which was accordingly given. During police custody he examined them. A-1, A-2 and A-7 gave separate confession statements, the admissible portion of which are Exs.P-34, P-36 and P-38 pursuant to which the weapons of offence came to be recovered under Exs.P-33, P-35 and P-37. The accused and the incriminating objects recovered at the instance of the accused were brought to the police station. The accused were surrendered in court on the expiry of police custody for continuation of judicial remand and the case properties were sent to court in Form-95/Ex.P-39. On 12.11.00 P.W.13 came to know that A-2 is admitted in the hospital and, accordingly, he proceeded to the hospital and collected the accident register. P.W.13 was then transferred and he was succeeded by P.W.15. 7. P.W.s 2 and 3 had given evidence on the occurrence proper as spoken to by P.W.1. P.W.4 would depose that at about 3.00 p.m. on 12.11.00 he saw the accused on the one hand and the deceased on the other hand quarrelling and when he returned home he came to know that Chitti – since deceased, had already died. P.W.5, examined as an eye witness to the occurrence, turned hostile. P.W.6 speaks about the quarrel that took place at about 3.30 p.m. on 12.11.00 between the deceased on the one hand and A-1 on the other. A-1 was quarrelling with Chitti (deceased) accusing him of being an informant to the https://hcservices.ecourts.gov.in/hcservices/ police. P.W.7 examined to prove the recovery mahazar and observation mahazar had admitted his signatures only in those two documents. Ex.P-3 is the signature in the observation mahazar and Ex.P-4 is the signature in the recovery mahazar. P.W.8 examined to prove the examination of A-1, A-2 and A-7 during police custody turned hostile. However, he had admitted his signatures in those statements, which are marked as Exs.P-5 to P-10. P.W.9, examined for the same purpose as P.W.8 was examined, has admitted only his signatures in the various documents and his admitted signatures are marked as Exs.P-11 to P-16. P.W.11 is the Magisterial Clerk, who speaks about the receipt of the case properties and sending the same to the laboratory for chemical examination. He also states that the report from the laboratory had come (and it must be noticed that neither the chemical examiner's report nor the serologist's report is marked in this case. Ex.P-18, the requisition given by the investigating officer to subject the case properties for chemical examination alone is marked). P.W.15, after completing the investigation and complying with all the other legal formalities, filed the final report in court against the accused on 24.11.01 for the offences referred to earlier. 8. When the accused were questioned under Section 313 Cr.P.C. on the basis of the incriminating materials made available against them, they denied each and every circumstance put up against them as false and contrary to facts. As noted earlier, neither oral nor documentary evidence was brought before the court at their instance. 9. Mr. V.Gopinath, learned senior counsel appearing for the appellants would submit that though the evidence of P.W.s 1 to 3 is just a parrot-like repetition, yet from the fact that a delay had occurred in giving the complaint would raise a suspicion in the mind of this Court as to whether any credibility at all could be given to the evidence of P.W.s 1 to 3. In elaborating this point, learned senior counsel took us through the various materials available on record, which according to him are in favour of the accused and requested us to disbelieve P.W.s 1 to 3 and acquit the accused. Opposing these arguments advanced by the learned senior counsel, Mr. N.R.Elango, learned Addl. Public Prosecutor would contend that the delay in giving the complaint in every case by itself would not be fatal to the prosecution case if it is found that there are trustworthy evidence of eye witnesses to the occurrence. Learned Addl. Public Prosecutor took considerable pains in convincing us that the evidence of P.W.s 1 to 3 is wholly reliable and, therefore, that evidence could be accepted in favour of the State by ignoring the delay in giving the complaint. To substantiate this argument, learned Addl. Public Prosecutor took us through the materials on record. 10. Having regard to the submission made by the learned senior counsel for the appellants and the learned Addl. Public Prosecutor https://hcservices.ecourts.gov.in/hcservices/ for the State, we had gone through the entire materials placed before us carefully. Before proceeding to discuss the merits and demerits of the prosecution case, we would like to remind ourselves as to what the Supreme Court has often been saying about the duty of the court in analysing the case materials placed before it :- "No court should be hyper-sensitive to each and every doubt that arises in a prosecution case as they are bound to be there; every semblance of a doubt or a suspicious circumstance, unless they go to the root of the prosecution case itself and has the effect of disturbing the very fulcrum of the prosecution case, the court should not, on such doubts or circumstances, magnify it out of proportion to give the benefit of the same to the accused; the court has not only a duty to see that innocent persons are not convicted but also has a more responsible duty to the society, namely, not to give a judgment of acquittal, which are totally unwarranted on the facts of the case that come up for consideration; the society shall not be exposed to the perils at the hands of criminals and offenders by acquitting the accused on whimsical reasons and fantasies; delay in either filing the complaint or delay in transmitting the case records to the court by themselves would not be fatal to the prosecution case and how far such delay would affect the prosecution version would depend upon the facts of each case." These are the broad principles evolved by the Supreme Court, which have to be followed by every court of law whenever a case involving criminals and grave offences come up before the court for consideration. Having the above principles evolved by the Supreme Court in our mind, we now proceed to analyse the case materials. 11. There are three eye witnesses in this case, namely, P.W.s 1 to 3. Their evidence before the court on the occurrence proper is just a parrot-like version. We have no doubt in our mind, that simply because the witnesses speak in unison regarding the occurrence proper, that would not be a ground to suspect their evidence. In many cases when the evidence of the witnesses, who speak about the occurrence are found to be trustworthy, cogent, natural, convincing and wholly reliable, this Court never had any hesitation in acting upon that evidence whatever may be the delay that had occasioned in giving the complaint or the delay committed by the police in transmitting the case records to the court. In this case, there is no dispute that the evidence of P.W.s 1 to 3, ex-facie, establish the involvement of all the accused in the crime. If that is the only approach which this court should take on the materials available in this case, then there cannot be any difficulty at all in confirming https://hcservices.ecourts.gov.in/hcservices/ the conviction. Mr. V.Gopinath, learned senior counsel, as already contended, would submit that simply because the evidence of P.W.s 1 to 3 establish the involvement of the accused in the crime, it does not necessarily mean that the court should ignore the surrounding/attendant circumstances to the crime; the conduct of the parties, who had witnessed the crime both immediately after seeing the crime and thereafter in lodging the complaint with the police and the further acts or omissions committed by the police in investigating the crime. Since the prosecution case is attacked solely on four grounds, namely -- "(a) the conduct of P.W.s 1 to 3 after allegedly seeing the crime ; (b) the delay in giving the complaint ; (c) the inherent materials available in the