IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 26.10.2009 CORAM THE HONOURABLE MR. JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR. JUSTICE V.PERIYA KARUPPIAH CRL.A.No.263/2009 1.Tamilselvan @ Tamil 2.Venu @ Venugopal 3.Sugu @ Sugumar 4.Sridhar 5.Settu .. Appellants/A2 to A6 Vs State by the Inspector of Police Law and Order, Sembiam Police Station Perambur, Chennai. .. Respondent/complainant [Cr.No.816/2007] Appeal filed u/s.374[2] Cr.P.C., to set aside the order dated 30.04.2007 passed in SC.No.183/2008 against the appellants/accused by the learned Sessions Judge, Sessions Court [Fast Track Court No.2], Chennai District. For Appellants : Mr.R.Karunagaran For Respondent : Mr.Babu Muthu Meeran, Addl. Public Prosecutor JUDGMENT [Judgment of the court was delivered by M.CHOCKALINGAM, J.] Challenge is made to the Judgment of the learned Sessions Judge, FTC-2, Chennai, made in SC.No.183/2008 dated 30.04.2009 whereby the accused/A1 to A7 stood charged, tried and found guilty for the offence u/s.148,341,302,307,506[ii] read with 34 and 149 IPC and on trial, they were found guilty of the charges and were awarded with punishments as follows:- https://hcservices.ecourts.gov.in/hcservices/ Accused Conviction Sentence awarded A2 to A6 U/s.302 IPC Each of the accused were sentenced to undergo life imprisonment and to pay a fine of Rs.5,000/- and in default to undergo 2 months rigorous imprisonment for the offence u/s.302 IPC. A2 to A6 U/s.148 IPC Each of the accused to underto 3 years rigorous imprisonment for the offence u/s.148 IPC. The trial Judge ordered the sentence to run concurrently and acquitted A1 and A7 of all the charges leveled against them. 2.Short facts necessary for the disposal of the appeal can be stated as follows:- [a]P.W.1 is the younger brother of the deceased, Parthiban and he is the resident of the Jamaliah Housing Board, Perambur, Chennai. The deceased was carrying on Cable TV business and he was having a dispute with A1 with regard to a construction in a public land. On the fateful day of occurrence, i.e., 05.04.2007, at about 1.30 p.m. there was a wordy altercation between P.Ws.1 and 2 and A1 due to which A3 went to the respondent police station and gave a complaint against P.Ws.1 and 2. P.W.16, the Sub-Inspector of Police, on receipt of the petition, gave a receipt in CSR.No.276/CSR/K-9/2007 under Ex.P.30 and asked A3 to come for the enquiry at about 5.00 p.m. on the same day and equally, P.Ws.2 and 3 also went to the same respondent police and lodged a complaint before the same Sub- Inspector of Police who, on receipt of the petition, gave a receipt in CSR.No.277/CSR/K-9/2007 under Ex.P.31 and also summoned them to come for an enquiry at 5.00 p.m. But, both the parties did not turn according to the direction of the police. [b]On the same day, at about 9.00 p.m. when the deceased accompanied by P.W.14, was returning from attending a function, in the motor bike of P.W.14 along with P.W.5 and the other witnesses, viz., P.Ws.2,3,4 and 14 were all proceeding in an auto rickshaw following the motor bike, in which the deceased was travelling, they were waylaid by the accused parties, who were armed with deadly weapons. A1 and A2 cut the deceased on his face with knives; A3 attacked the deceased on his legs; A4 cut on the left cheeks of the deceased; A5 cut the deceased on the left neck and A5 cut the https://hcservices.ecourts.gov.in/hcservices/ deceased on the left side elbow. A1 and A2 also attacked P.W.1 who came to rescue the deceased and A5 and A6 also attacked P.W.2. The deceased died on the spot. P.Ws.1 and 2 who were injured in the said transaction, went to the nearby hospital belonging to P.W.19 and P.W.19 treated P.Ws.1 and 2 at about 9.30 p.m. and 9.45 p.m. and the Accident Registers in respect of P.Ws.1 & 2 are marked as Exs.P.21 and 20 respectively. The doctor also gave intimation to the respondent police. P.W.23, the Inspector of police rushed to the hospital at about 9.30 p.m. and recorded the statement of P.W.1 under Ex.P.1 and came back to the station and registered a case in Cr.No.816/2007 for the offence u/s.174,148,341,307 and 302 IPC and despatched the Express FIR, Ex.P.37 to the court. [c]P.W.23, in continuation of his investigation, proceeded to the scene of occurrence; prepared Observation Mahazar [Ex.P.26] and a rough sketch [Ex.P.27] in the presence of the witnesses. He also recovered M.O.21-blood stained earth; M.O.22-sample earth; M.O.23- Cycle under the cover of the mahazar-Ex.P.28. The investigating officer also held inquest on the dead body of the deceased between 22.45 p.m. and 00.30 a.m. in the presence of the witnesses and panchayatdars under Ex.P.29. He also made arrangements to take photographs [M.O.20] at the scene of occurrence through P.W.20. He recorded the statements of the witnesses at the scene of occurrence and also sent the dead body for postmortem. [d]P.W.17, the doctor attached to the Kilpauk Medical College Hospital, Chennai, received a requisition from P.W.23, the Inspector of Police under Ex.P.17 and conducted autopsy on the dead body of the deceased. P.W.17 also issued Ex.P.18, the Post Mortem Certificate wherein he has found the following injuries:- "1.Deep cut wound 1/2 cm below the left eye measuring 8cm x1cmx4cm. 2.1 cm below the injury no.1, a deep cut wound 5x1x3 cm 3.1cm below the injury NO.2, a dep cut wound from corner of the left lip to the middle of the neck, left side of 14x3x4 cm. 4.3 parallel deep cut wounds in left side of the neck, measuring 3x2x4cm; 2x1x3cm and 3x1x3 cm. 5.Cut wound in left lower abdomen of 1x1x3 cm. 6.Reddish brown abrasion of 3x1cm over the body of sternum. 7.Incised wound over left leg 1x1x1 cm in the apex. https://hcservices.ecourts.gov.in/hcservices/ The above cut wounds are clear cut and smooth and antemortem in nature." The doctor also opined that the deceased would appear to have died out of shock and haemorrhage due to multiple cut injuries over the neck and cervical spine. [e]In continuance of the investigation, P.W.23, on 08.04.2007, arrested A3 and A4 and both came forward to give confession statements voluntarily, the admissible parts of which are marked as Exs.P.32 and 33 pursuant to which M.O.4-knife, M.O.2-knife, M.O.3- motor bike were recovered under the cover of Mahazars, Exs.P.7 and 6 respectively. A2, A5 and A6 surrendered before the learned Judicial Magistrate, Thiruvallur and on requisition, they were handed over to police custody. A2,A5 and A6 also gave confessional statements voluntarily, the admissible parts of which are marked as Exs.P.8,10 and 12 pursuant to which M.Os.5,6,7,8,910,11 and 12 were recovered under the cover of Mahazars, viz., Exs.P.9,11 and 13 respectively. On 24.04.2008, A7 also surrendered before the learned Judicial Magistrate, Maduranthagam and on requisition, he was also taken into police custody and he also gave voluntarily the confessional statement, the admissible part of which is marked as Ex.P.14 pursuant to which M.Os.14 to 19 were recovered under the cover of Mahazars, viz., Exs.P.15 and 16. A1 was also arrested on 27.04.2007. All the material objects recovered from the place of occurrence, from the dead body and the material objects recovered pursuant to the confessional statements of the accused were all subjected to chemical analysis which resulted in the Chemical Analyst Reports and Serologists Reports under Exs.P.22 to 25 respectively. [f]On completion of investigation and filing of the final report, the case was committed to sessions; necessary charges framed and in order to substantiate the charges, the prosecution examined 23 witnesses [P.Ws.1 to 23], marked 37 exhibits [Exs.P.1 to 37] and produced 27 material objects [M.Os.1 to 27]. 3.When the accused were questioned u/s.313 Cr.P.C., as to the incriminating circumstances found in the evidence of the prosecution against them, they denied them as false and on the side of the accused 3 witnesses were examined and 11 documents [Ex.D.1 to 11] were marked. Hearing the arguments advanced on either side and also considering the incriminating materials against the accused, the trial court took a view that the prosecution has proved its case beyond reasonable doubt insofar as A2 to A6 are concerned and thus, rendered the judgment of conviction and sentence as stated supra. The trial court also acquitted A1 and A7 of their charges. As against the said conviction and sentence, the accused, A2 to A6 have preferred the above appeal. 4.Advancing the arguments on behalf of the appellants/A2 to A6, https://hcservices.ecourts.gov.in/hcservices/ the learned counsel would submit that the prosecution has miserably failed to prove its case and the prosecution marched P.Ws.1 to 5 and 14 as eyewitnesses and in particular, P.Ws.1 and 2 are shown as injured eyewitnesses. Learned counsel would submit that as far as P.Ws.1 and 2 are concerned, they could not have been the eyewitnesses to the occurrence at all as P.W.1 has categorically stated in his evidence that the occurrence has taken place at about 9.00 p.m. and P.Ws.1 and 2 were examined by P.W.19, the doctor attached to Gen Hospital at 9.30 p.m. and 9.45 p.m. respectively and Exs.P.21 and 20 are the Accident Registers issued to P.Ws.1 and 2 whereas P.W.23, the Inspector of Police, stated in his evidence that he recorded the statement of P.W.1 under Ex.P.1 at about 9.30 p.m. and registered the case immediately as found in Ex.P.37-the Express FIR. P.W.1 has also stated that in his cross-examination that he gave the statement to the police at about 01.30 a.m. on the next day, i.e., 6.4.2007 and P.W.2 has stated that after few hours from the time of treatment, he was enquired by the police and thus, it would be clear that the evidence of P.Ws.1 and 2 and the corresponding report, Ex.P.1 could not have been come into existence as put forward by the prosecution and it creates doubt. 5.Learned counsel for the appellants would further add that the trial court has not believed the evidence of the eyewitnesses in respect of the injuries caused to P.Ws.1 and 2 and thus, it has also rendered the judgment of acquittal in that regard in respect of A1 and A7 and if it is to be so, the evidence of P.Ws.1 and 2 should not have been believed by the trial court, insofar as the appellants are concerned and the same should be rejected in its entirety and the case should have ended in acquittal in respect of the appellants herein. 6.The learned counsel for the appellants further contended that P.W.1, at the time of occurrence, was actually 100 feet away from the place of occurrence and when he came nearby the place of occurrence, he found the deceased falling down and under such circumstances, it would be quite clear that he could not have seen the occurrence at all and with regard to the confession of A1, though it is claimed by the prosecution that it was recorded, the same was not produced before the court and on the contrary, a perusal of the confession alleged to have been recorded from A7 would indicate that it was he who produced the material objects, viz., weapons, which were actually used by A1 at the time of occurrence and the same is highly doubtful. 7.Learned counsel for the appellants also contended that the prosecution claimed that the deceased and P.W.14 were proceeding near the scene of occurrence in a motor bike and the other witnesses were following them in an auto but P.W.14 has given a contrary statement before the court when he was examined and hence, he could not have been an eyewitness and could not have seen the occurrence at all. Though the learned trial Judge acquitted the appellants/A2 to A6 for https://hcservices.ecourts.gov.in/hcservices/ the offence u/s.341,307,506[ii] read with 34 and 149 IPC, he found them guilty u/s.302 and 148 IPC and the trial court did not believe the evidence insofar as A1 and A7 are concerned; but relying on the same set of evidence, has found A2 to A6 guilty and thus, the judgment was infirm and defective and the trial judge took an erroneous view in respect of the appellants and the appellants are entitled for acquittal at the hands of this court. 8.Heard the learned Additional Public Prosecutor on the above contentions and the court paid its anxious consideration on the submissions made on either side. 9.It is not in controversy that one Parthiban was done to death at the place and time of occurrence and after following the procedural formalities, P.W.23, the Inspector of Police, sent the dead body for Postmortem and the dead body was subjected to postmortem by P.W.17, the doctor attached to Kilpauk medical College Hospital, Chennai who has given a categorical opinion that the deceased died out of shock and haemorrhage due to multiple injuries sustained on the neck and the fact that the deceased died out of homicidal violence was not disputed by the appellants before the trial court and accordingly, the trial court did not feel any impediment in recording so and hence, it has got to be affirmed. 10.In order to substantiate the charges leveled against the appellants/A2 to A6, of constituting unlawful assembly, armed with deadly weapons, waylaying the deceased and others and attacking them at the time and place of occurrence at about 9.00 p.m. on 05.04.2007, the prosecution marched P.Ws.1 to 5 and 14 as eyewitnesses out of whom P.Ws.1 and 2 were the injured eyewitnesses. It is well settled proposition of law that in a given case, when an eyewitness happened to be an injured eyewitness, his evidence should not be discarded,unless any strong circumstance or strong reason is noticed by the court. But, this court is unable to see any such reason to doubt the testimony of P.Ws.1 and 2. According to P.Ws.1 and 2, they have accompanied the deceased at the time of the occurrence by coming in an auto at the back, while the deceased was going along with P.W.5 and 14 in a motor bike in front and the accused waylaid them; attacked the deceased with knives indiscriminately and in the said transaction, P.Ws.1 and 2 were also attacked and sustained injuries. They also took treatment in the hospital near the scene of occurrence and Exs.P.21 and 20 are the Accident Registers issued to them and P.W.19, in his evidence before the court also categorically deposed that while he was giving treatment to P.Ws.1 and 2, they were conscious and they gave statement to the doctor to the effect that they were attacked by five known persons at the place of occurrence. Thus, the evidence of P.Ws.1 and 2 who are the injured eyewitnesses coupled with the contents found in Exs.P.21 and 22 corroborates each other and this court is unable to see any infirmity in their evidence. The evidence of P.Ws.1 and 2 stood fully corroborated by https://hcservices.ecourts.gov.in/hcservices/ the evidence of P.Ws.3 to 5 and 14. P.W.14 is the person who accompanied the deceased in the motor bike. Though P.W.14 was cross- examined in this aspect in full, his evidence remained unshaken. Under the circumstances, the court feels that there cannot be any impediment in holding that the evidence of P.W.14 is cogent, trust worthy an acceptable. 11.Now, at this juncture, it is pertinent to point out that the ocular testimony of all these witnesses stood fully corroborated by the medical evidence. Insofar as P.Ws.1 and 2 are concerned, Exs.P.21 and 20 are the Accident Registers given by P.W.19 and insofar as the deceased is concerned, Ex.P.18 is the Postmortem Certificate issued by P.W.17. Thus, the ocular testimony of the doctors is also corroborated by the medical evidence. It is true, as rightly pointed out by the learned counsel for the appellants that insofar as the recovery of the material objects from the accused are concerned, there are certain discrepancies, but the trial court believed the same in respect of confessional statements and the following recoveries. Even assuming that part of the evidence of the prosecution has got to be rejected, the prosecution, on the face of the evidence already recorded above through P.Ws.1 to 5 and 14 and the discussion made above, in the considered opinion of the court, which has got a case, has to be accepted since it leaves no doubt in the mind of the court. 12.Learned counsel for the appellants made a comment that A1 and A7 have been acquitted on the basis of the very same ocular and documentary evidence by which the appellants alone have been convicted. On a careful scrutiny of the evidence available on record, it is seen that A7's name is not found in the FIR. But, at the same time the court is unable to agree with the decision of acquittal of A1 by the learned trial judge as his name finds a place in the FIR and there is a specific overt act of attacking the deceased and thus, the trial judge has taken an erroneous view. 13.Against the acquittal of A1, the State should have preferred an appeal but it failed to do so. For the mere acquittal of an accused and non-preference of an appeal against acquittal, law would not impede the court from sustaining the conviction of the other accused against whom the evidence is in order. Apart from that, the other contentions of the learned counsel for the appellants, in the considered view of the court, do not carry any merit whatsoever. It is true that P.W.1 has stated in his cross-examination that he was enquired by the police during the midnight at about 01.30 a.m. It is pertinent to point out that when he was admitted in the hospital at about 9.30 p.m. and was treated by P.W.19, he was actually in an anxiety condition and he gave the evidence before the court after a long time. Therefore mentioning of the time as 01.30 a.m. while giving the statement, cannot be a reason to suspect his evidence. At this juncture, even the doctor has given intimation to the police https://hcservices.ecourts.gov.in/hcservices/ officials and they have arrived at the hospital at about 9.30 p.m. itself and in the presence of P.W.19, Ex.P.1 complaint was recorded and hence, it leaves no doubt in the mind of the court. 14.It is true that there are discrepancies in the evidence of P.W.14 as to the vehicle in which they travelled, but in the considered opinion of the court, it is a minor discrepancy while the evidence of P.Ws.1 to 5 and 14 and in particular, P.Ws.1 and 2 who are injured, all speak in one voice. This court is unable to give much weight to the discrepancies which are minor in nature. Apart from that the other contentions put forward by the learned counsel for the appellants, as discussed above, do not in any way take away the rigor of the truth of the prosecution case on the face of the evidence of P.Ws.1 and 2 who are injured and whose evidence stood corroborated by the evidence of P.Ws.3 to 5 and 14 coupled with the medical evidence. Thus, this court has no other go than to affirm the judgment of conviction and sentence of the trial court. 15.Accordingly, the appeal is dismissed and the judgment of conviction and sentence against the appellants/A2 to A6 passed by the learned Sessions Judge, FTC No.2, Chennai in SC.No. 183/2008 dated 30.04.2007 is confirmed. ap Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To 1. The Sessions Judge, Sessions Court, FTC No.2, Chennai. 2. The Superintendent, Central Prison, Puzhal, Chennai. 3. The Inspector of Police, Law and Order, Sembiam Police Station, Perambur, Chennai. 4. The Public Prosecutor, High Court, Chennai. 5. The District Collector, Chennai. 6. The Director General of Police, Chennai. 7. The Section Officer, Criminal Section, High Court, Madras. +1 cc to Mr. R. Karunakaran, Advocate, SR.No.56944. Crl.A.No.263 of 2009 BV(co) ar/3.11.2009. https://hcservices.ecourts.gov.in/hcservices/