IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 20.9.2006 CORAM: THE HONOURABLE MR.JUSTICE P.D.DINAKARAN AND THE HONOURABLE MR.JUSTICE M.THANIKACHALAM CRIMINAL APPEAL No.325 OF 2004 1.Murugan 2.Saravanan 3.Sakthivel 4.Ramesh 5.Velu 6.Suresh Kumar 7.Thiruvengadam 8.Devaraj ... Appellants/Accused Vs. State, by The Inspector of Police, R-5, Choolaimedu Police Station, Choolaimedu, Chennai. (Cr.No.748/2001) ... Respondent/Complainant * * * Criminal Appeal preferred under Section 374 of the Code of Criminal Procedure as against the judgment of conviction dated 6.1.2004 rendered in Sessions Case No.115 of 2003 by the learned Additional Sessions Judge (Fast Track Court No.V), Chennai. * * * For Appellants 1 to 3 : Mr.S.Ananthanarayanan For Appellants 4 & 5 : Mr.B.Karunakaran For Appellant No.6 : Mr.N.Chandrasekaran For Appellant No.7 : Mr.V.Parthiban For Appellant No.8 : Mr.C.M.Gunasekaran For respondent : Mr.C.T.Selvam, A.P.P. * * * https://hcservices.ecourts.gov.in/hcservices/ JUDGMENT (Judgment of the Court was delivered by M.THANIKACHALAM,J.) A.1 to A.8, who stand convicted for the offences under Sections 148, 302 r/w.149 and 307 r/w.149 IPC and sentenced to undergo two years Rigorous imprisonment for the offence under Section 148 IPC; life imprisonment and to pay a fine of Rs.5,000/= each in default to undergo RI for six months for the offence under Section 302 r/w.149 IPC and further to undergo RI for seven years and to pay a fine of Rs.3,000/= each in default to undergo RI for six months for the offence under Section 307 r/w.149 IPC, in Sessions Case No.115 of 2003, on the file of the learned Additional Sessions Judge (Fast Track Court No.V), Chennai, are the appellants. 2. The respondent/police filed a final report before the Court concerned, seeking punishment for the accused, as if they have formed themselves into an unlawful assembly, armed with deadly weapons with the common object of committing the rioting or unlawful activities and pursuant to the same, they have attacked one Sundar (since deceased), using deadly weapons, like knives and iron rods and that in the same transaction, all of them have also aimed the life of one Velappan (P.W.5), who had witnessed the above said incident, that too, when he attempted to prevent the same and therefore, all of them should be dealt with under Sections 148, 302 r/w.149 and 307 r/w.149 IPC. 3. The learned Sessions Judge, satisfying herself, perusing the records, framed charges under Sections 148, 302 r/w.149 and 307 r/w.149 IPC, thereby directing the prosecution to prove the offences, alleged against the accused, beyond all reasonable doubts, as mandated by the criminal jurisprudence. 4. Responding to the above command, on behalf of the prosecution, 16 witnesses have been examined, seeking buttress from Exs.P.1 to P.29, as well as strength from M.Os.1 to 6. On behalf of the accused, though it is not mandatory, no oral or documentary evidence has been adduced. 5. The learned Sessions Judge, while evaluating the above materials, satisfied herself, that the prosecution discharged its onerous duty of proving the guilt of the accused beyond all reasonable doubts. In this view, the trial Court slapped conviction on all the accused under Sections 148, 302 r/w.149 and 307 r/w.149 IPC and sentenced them to undergo imprisonment, besides directing them to pay fine, as stated supra, which is under challenge in this appeal. 6. The brief facts, as culled out from the prosecution witnesses, leading to this criminal appeal, are as follows: https://hcservices.ecourts.gov.in/hcservices/ a) A.1, by name Murugan, an electrician, was working in a concern called "Basha Associaties", under which the deceased Sundar was the sub-contractor. Ramakrishnan (P.W.2) is known to the deceased Sundar, since he was also working along with P.W.5 Velappan. Between A.1 and Sundar-the husband of P.W.8, there was some dispute regarding sharing of stolen property or in connection with the other day-to-day activities, thereby A.1 had grievance against the deceased Sundar. b) On 24.3.2001, at about 11.15 p.m. (night), P.W.5-Velappan, Sundar (deceased), Swaminathan and one Mohan were standing at Nungambakkam Railway Station in order to board the train. At that time, under the leadership of A.1, other accused came there, forming themselves into an unlawful assembly, armed with deadly weapons-M.Os.1 to 4 and on seeing Sundar, in the presence of P.W.5, all the accused indiscriminately attacked Sundar, causing multiple injuries all over his body, despite the attempts made by P.W.5 to prevent the incident, in which he had also sustained a cut injury at the hands of A.6 with M.O.1. After the incident, all the accused ran away from the scene of crime, which was later informed to P.Ws.1 to 3 and 6. c) Thiru Velappan (P.W.5), immediately, by boarding a train, went to Egmore Railway Police Station and informed the Egmore Railway Police about the incident, which had taken place. Since a cognizable offence was reported, the Police in the Egmore Railway Police Station, admitted P.W.5 in Kilpauk Medical College Hospital. d) P.W.7-Syed, coming to know about the fact that Sundar, a Labour Contractor working under him, was assaulted, rushed to the scene of crime and with the help of P.W.4-auto driver, took injured in the auto, admitted him at the first instance in a private hospital and thereafter, admitted him in the Kilpauk Medical College Hospital. e) Thiru Rajasekaran-P.W.15, the then Inspector of Police, Law and Order, Railway Police, Egmore Railway Police Station, on information about the admission of P.W.5 and Sundar in the Hospital, went to the hospital, examined P.W.5 and recorded a statement-Ex.P.7. On the basis of Ex.P.7, P.W.15 registered a case in Cr.No.242/2001 under Sections 147, 148, 341, 324 IPC r/w.147 of the Indian Railways Act, for which he prepared the printed FIR-Ex.P.19 and sent the same to the Court. f) Thiru Dr.Manivel (P.W.11), coming to know, on 25.3.2001 at about 00.15 hours, P.W.5 and Sundar are admitted in the hospital as inpatients, enquired P.W.5 and treated him for which he issued Ex.P.9-Accident Register. Examining Sundar, who was brought to the hospital, by his friend Swaminathan, he noticed a stab injury on the right flank, through which intestine was also protruding. Recording the same, P.W.11 issued Ex.P.10. The Doctor, who examined P.W.5 thereafter certified that the injury sustained by P.W.5 is simple in nature, under Ex.P.11. https://hcservices.ecourts.gov.in/hcservices/ g) P.W.15-the Inspector of Police, taking the case for investigation, went to the scene of crime, prepared sketch- Ex.P.20 and examined the witnesses also. Upon information, on 27.3.2001, he arrested A.1 at about 16.15 hours and thereafter, arrested A.2 and A.3. On 29.3.2001, Sundar, who was admitted in the hospital for treatment, succumbed to the injuries and therefore, the case originally registered was altered to one under Section 302 IPC, as per Ex.P.24. h) In continuation of the investigation, P.W.15 went to the hospital, conducted inquest, prepared inquest report-Ex.P.21 in the presence of panchayatdars and recovered M.Os.5 and 6 under Ex.P.22. Thereafter, giving requisition-Ex.P.23, P.W.15 requested the XIV Metropolitan Magistrate, Chennai to send M.O.5 for chemical examination. Further, in order to ascertain the actual cause of death of Sundar, his body was sent for Post Mortem examination through P.W.10, giving requisition under Ex.P.12. j) On receipt of Ex.P.12 requisition, P.W.12 Doctor conducted autopsy over the dead body of Sundar and found the following injuries, which are recorded in Ex.P.13 Post Mortem Report: 1.Oblique sutured would 6 cm. long over outer aspect of right elbow. On removal of sutures: the margins are clean cut and muscle deep. 2.Oblique sutured wound 4.5 cm. long on front of upper one- third of right upper arm. On removal of sutures: the margins are clean cut and muscle deep. 3.Horizontal sutured wound 3.5 cm. long over the sacral region. On removal of sutures: the margins are clean cut and bone deep. 4.Oblique sutured wound 4 cm. long over left side of back of chest 4 cm away from mid-line. On removal of sutures: the margins are clean cut and muscle deep and the wound is not communicating with the thoracic cavity. 5.Horizontal sutured wound 4 cm. long on front of right side of abdomen. The outer end is 20 cm. below the right nipple and the inner end is 11 cm. from the mid-line. On removal of sutures, the margins are clean cut and the underlying peritoneum found sutured with silk. 6.Oblique sutured wound 1.5 cm. long over right loin. On removal of sutures margins are clean cut (surgical drainage). 7.Vertical sutured wound seen on front of middle of abdomen 25 cm. long extending from 3 cm. below the xiphoid process to 4 cm. below the umbilicus. On removal of sutures, the margins are clean cut (surgical incision)." https://hcservices.ecourts.gov.in/hcservices/ The Doctor is of the opinion, the deceased did of complication of stab injury to the mesentery. (k) The investigation, so completed by P.W.15, revealed that the incident had taken place within the jurisdiction of Choolaimedu Police Station and therefore, obtaining necessary orders from the superiors, he transferred the case to Choolaimedu Police Station where, P.W.16 was working as Inspector of Police (Law and Order). (l) On receipt of the file from P.W.15, P.W.16 registered a case on the file of Choolaimedu Police Station, in Cr.No.748/2001, for which he prepared Ex.P.25 FIR, which was sent to the Court through P.W.14. Thereafter, once again P.W.16 re-examined the witnesses, in addition to recording their statements. (m) Meanwhile, A.4 to A.8 surrendered before the Court, which came to the knowledge of P.W.16. On application, under Ex.P.26, obtaining the order, taking custody of the above said accused, when P.W.16 examined A.4, he confessed, in the presence of P.W.4 and another, that he will take out the weapons used by them to assault Sundar, which was recorded as Ex.P.27-admissible portion. Pursuant to the same, M.Os.3 to 5 were recovered in the presence of mahazar witnesses, under Exs.P.28 and P.29. (n) At the request of P.W.16, as directed by the Chief Metropolitan Magistrate, under Ex.P.16, the then XIII Metropolitan Magistrate, Chennai-P.W.13 conducted the Test Identification Parade, sending Ex.P.17 to the Superintendent of Central Prison on 30.4.2001, wherein P.W.5 had identified all the accused more than once, despite the fact the accused were directed to change their places in the row, according to their wishes, for which P.W.13 prepared Ex.P.18 report. Exs.P.14 and P.15 are the Toxicology Report and Serology Report respectively, received from the Forensic Department. (o) Thus, the materials collected by P.Ws.15 and 16, including the statements recorded by them then and there, revealed the fact that the accused have committed the murder of Sundar, due to previous enmity, that too, at the instance of A.1. In this way, a final report came to be filed, leading to trial, ending in conviction, which is assailed in this appeal. 7. Heard Mr.S.Ananthanarayanan, learned counsel for appellants 1 to 3; Mr.B.Karunakaran, learned counsel for appellants 4 and 5; Mr.N.Chandrasekaran, learned counsel for appellant No.6; Mr.V.Parthiban, learned counsel for appellant No.7; Mr.C.M.Gunasekaran, learned counsel for for appellant No.8 and Mr.C.T.Selvam, learned Additional Public Prosecutor. https://hcservices.ecourts.gov.in/hcservices/ 8. The learned counsel appearing for the appellants/accused submitted that:- i) the original FIR, which ought to have set the law in motion, has been suppressed, giving a reasonable doubt about the genesis of the case, resulting its benefit to the accused; ii) the only oral evidence of P.W.5 is not only mutually contradictory but also totally unbelievable, being unnatural and artificial and this being the position, the trial Court has committed an error in passing the judgment of conviction based upon the uncorroborated, unconvincing sole testimony of P.W.5, which requires to be set aside; iii) when there was an opportunity for the prosecution to record the statement of the deceased, which would have thrown much light upon the matter in issue, admittedly, the prosecution failed, which should lead to the conclusion, suppressing the real fact, obtaining false statement from P.W.5 that too after deliberations with the deceased and therefore, conviction based upon Ex.P.7 is not at all legally sound in the eye of law; iv) the trial court has not even properly framed charges against the accused and as such, framing charges against all the accused under Section 302 r/w.149 IPC is erroneous, which cannot even be cured by Section 464 Cr.P.C; v) when the Doctor’s evidence is silent, which injury was fatal, terminating the life of the deceased Sundar and when there is nil evidence which accused had caused which injury to the deceased, convicting all the accused under Section 302 r/w.149 IPC, as if mere presence, being the members of the unlawful assembly is sufficient, to convict the accused, is not based upon any legal principle, which requires setting aside; vi) from the materials available, it is seen, even the prosecution is not certain and definite about the scene of crime and this being the position, for the alleged offences, convicting eight persons under Sections 148, 302 r/w.149 and 307 r/w.149 IPC should be held erroneous; vii) the trial Court has committed legal error in accepting the test identification parade, when it is well demonstrated, eliciting answers from the witnesses that P.W.5 might have seen the accused before the Test Identification Parade in the jail, in the police station or in other words, the accused were shown to P.W.5 before the Test Identification Parade was conducted by the Judicial Magistrate and in this view, as ruled by the Apex Court, the evidentiary value of the Test Identification Parade is nil, which was not taken note of by the trial Court; viii)all the cumulative effect of the above grounds, when lead to the only conclusion that the prosecution has miserably failed to prove the guilt of the accused, the conviction imposed is not only bad on facts but also in law and in this view, the appeal deserves to be accepted; and https://hcservices.ecourts.gov.in/hcservices/ ix) when the materials would disclose as if along with P.W.5 there were two persons who might have seen the incident, for not examining those witnesses, an adverse inference ought to have been drawn. Elaborating the above points, taking us through the records, as well as the evidence, a strenuous submission was made, pleading not guilty for the accused and praying for their acquittal. 9. We have heard the learned Additional Public Prosecutor on the above points. 10. According to the prosecution, the incident had taken place, due to previous enmity between A.1 and the deceased Sundar. P.W.1, though not connected the accused with the offences, would state that he knew A.1, as well as the deceased Sundar. He has not spoken about the alleged enmity between Sundar and A.1. Thiru Ramakrishnan, who has been examined as P.W.2, has also not spoken anything connecting the accused or assigning reasons for the murder, though he has not seen the actual incident. 11. P.W.6 Balakrishnan, has spoken about some dispute between the deceased and A.1, followed by the removal of A.1 from the job by Sundar. This also, in a way, supported by P.W.7, and the wife of the deceased P.W.8, indirectly. From the above evidence, it is clear - whether it proves the motive or not - that A.1 is not only known to P.W.5, but he was closely associated with the deceased, at least for some time. Therefore, ordinarily, when such a person who had the motive, attacked the deceased, witnessed by P.W.5, then when he preferred the complaint, certainly, the first thought should be, to mention the name of the known person viz. A.1, then further saying, along with him other unknown persons were also there, who could be identified later, giving the particulars of identification, to some extent, such as colour, figure, height, size of body etc. In Ex.P.7, which we will discuss infra also, P.W.5 has not mentioned the name of A.1, whereas though had an opportunity, he has stated contra that Sundar was attacked by ‘unknown persons’. Even assuming, that there was some enmity, for A.1 against Sundar, that alone is not sufficient, unless it is shown, with certainty, that because of that motive, the incident had taken place. 12. Ex.P.7/complaint/first information, given by P.W.5, set the law into motion on 25.3.2001 on which basis, originally a case has been registered under Sections 147,148,341,324 IPC r/w. Section 147 of the Indian Railways Act. The incident had taken place on 24.3.2001 at about 11.15 p.m. at Nungambakkam Railway Station. This document would read that when Sundar, Swaminathan, P.W.5 and Mohan were waiting, for boarding a train, about 15 unknown persons or unidentifiable persons came there, armed with knives, iron rods, attacked Sundar. It further reads, the persons behind the attack must be Murugesan and Murugan, who is now arrayed as A.1. It is not the case of P.W.5, that Murugan or Murugesan https://hcservices.ecourts.gov.in/hcservices/ were present at the time of the assault or A.1, being present, instructed the assailants, whether they are numbering 8 or 15, as the case may be, to attack Sundar or P.W.5, who attempted to prevent the incident. 13. This statement was recorded by P.W.15. P.W.15 also testified that P.W.5 has stated to him that he and Sundar were targeted, only by ‘unknown persons’. When P.W.5 and deceased were admitted in the hospital, as inpatients, they were examined by P.W.11 Doctor, admittedly. Before the Doctor also, as seen from Exs.P.9 and P.10, both of them have stated that they were assaulted by ‘unknown persons’. Nowhere, P.W.5 or the deceased, who was conscious, as per the evidence given by P.W.11 also, have murmured about the name of A.1, as if he was the assailant or at least he was present when the incident had taken place, giving instructions to the accused etc. Therefore, naturally, a doubt would arise, spontaneously also, whether P.W.5 would have seen A.1 and other accused, at the scene of occurrence, when Sundar was assaulted and the answer must be in the negative. 14. As stated above, it is the specific case of P.W.5 that he knew A.1 as well as Murugesan, who has not been arrayed as accused or cited as a witness. If really, now as spoken to by P.W.5 before the Court, A.1 was present at the scene of occurrence, naturally, certainly and undoubtedly, he should have disclosed or given the name of A.1, as the prime accused, who had assaulted Sundar, heading the team, giving instructions also. Unfortunately, we do not find any such averments in Ex.P.7, which is the earliest document, containing the genesis of the case, leading to the investigation. Therefore, the subsequent evidence given by P.W.5, as if A.1 was present at the scene of crime, directed the other accused to assault Sundar, must be, in our considered opinion, an unadulterated and blatant lie, not worthy of credence, which was believed, unfortunately, by the learned trial Judge, without assigning reasons, as if P.W.5 should be a dependable witness, when it is not so. 15. The submission made by the learned counsel for the appellants, to spread doubt over Ex.P.7, as if it should have come into existence after deliberation and the original FIR should have been suppressed, cannot be ignored, as if it has no substance, because of the indelible evidence available on the side of the prosecution itself. It is the specific case of P.W.5 that after the incident, boarding a train to Egmore, he reached the Egmore Railway Police Station, where he has given a complaint. It is further deposed by P.W.5, that after he has preferred the complaint, he was taken to Government Hospital and admitted in Ward No.1. It is his further case that on 25.3.2001, he was examined by railway police, recorded a statement. The evidence so given is not explained by re- examination, as if it is a mistake. From the above evidence, one thing is certain that P.W.5 should have given a complaint before the Egmore Railway Police and that is why, as noted by the Doctor in the Accident Register, P.W.5 was brought to the hospital, accompanied by the police. Law mandates, if a cognizable offence is reported, to a police officer, https://hcservices.ecourts.gov.in/hcservices/ whether that station is having jurisdiction or not, the police officer has to record the statement, register a case, then if at all, transfer the same to the police station having jurisdiction. In this view, it is to be held, as spoken to by P.W.5 also, the Egmore Railway Police should have received a statement and that alone should be the first information regarding this incident and the subsequent statement, if any recorded, certainly, will not come within the meaning of ‘FIR’ in its real and true sense. No explanation is forth-coming, why the complaint given by P.W.5 to the Egmore Railway Police was not brought to the Court or under what circumstances, that was ignored and a second complaint was recorded from P.W.5-Ex.P.7, on which basis, a case has been registered. If it is explained at least, that no such complaint has been given by P.W.5, then there is a possibility of accepting Ex.P.7, to some extent, which chance was not given by the investigating agency to the Court. Therefore, for the suppression of the original FIR, given by P.W.5, a spontaneous doubt arises in our minds, which is not eradicated by any explanation. 16. It is spoken by P.W.5 that Sundar was admitted in the same hospital and it is also an admitted fact. In the chief examination itself, P.W.5 would state, on the next day, police have examined not only him, but also Sundar and when he gave the statement, Swaminathan and Sundar were also present. When Sundar was conscious, capable of preferring a complaint and when it is said, A.1 had enmity only against Sundar, it is not known why he has not preferred a complaint, detailing and cataloguing the incident, accounting the accused also for the injuries sustained by him. In the cross-examination also, P.W.5 admits that he has informed the police that they were attacked by 15 ‘unknown persons’. It is also further admitted by P.W.5 that in Ex.P.7, he has suspected Murugesan and Murugan, thereby showing neither Murugan nor Murugesan was present at the time of the incident. Thus viewing the case from positive as well as negative angle, even as per the evidence of P.W.5, as well as on the basis of Ex.P.7, the presence of A.1 at the time of the alleged incident is ruled out. 17. P.W.5 further states, that before preferring a complaint, he had conversion with Sundar, thereby showing, to some extent, there was deliberation, whether it was effective or not. Thus, it is once again made out, Ex.P.7 is not the first information emanated from P.W.5, whereas it must be a subsequent document, suppressing the original FIR and in this view, it should be concluded that the investigating agency has suppressed the genesis of the case, thereby shattering the very foundation of the case itself, which is further strengthened by P.W.15, who has recorded Ex.P.7. 18. In Ex.P.7, the endorsement made by P.W.15 is not to the effect that this statement was recorded in the Egmore Railway Police Station, whereas it would imply that on the basis of the statement received, a case came to be registered in Egmore Railway Police Station Crime No.242 of 2001, under Sections 147,148, 341, 324 IPC r/w.147 of the Indian Railways https://hcservices.ecourts.gov.in/hcservices/ Act. It is also not the submission of the learned Additional Public Prosecutor, before us, that Ex.P.7 is the original FIR spoken to by P.W.5 and not the subsequent statement received from him at the hospital. P.W.15 has categorically deposed that on coming to know that two persons sustained injuries in the assault and were admitted in the hospital, he went to the hospital, received the statement, on which basis, a case came to be registered, as said above. Therefore, Ex.P.7 cannot be the substitute for the original FIR, which was admittedly given by P.W.5 in the hospital, as per his evidence, thereby once again, the non-explanation in not producing the original FIR strengthened the doubt, instead of weakening the same. 19. Many grounds were brought to our notice, including the unnaturality in the oral evidence of P.W.5, to disbelieve him, thereby in a way, convincing the Court, not to believe the oral evidence of P.W.5, in the absence of