IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 29.9.2006 CORAM: THE HONOURABLE MR.JUSTICE P.D.DINAKARAN AND THE HONOURABLE MR.JUSTICE M.THANIKACHALAM CRIMINAL APPEAL No.1342 OF 2004 1.Yuvaraj 2.Kumar @ Kutty ... Appellants/Accused Vs. State, represented by The Inspector of Police, R-6 Kumaran Nagar Police Station, Chennai-600083. ... Respondent/Complainant * * * Criminal Appeal preferred under Section 374 of the Code of Criminal Procedure as against the judgment of conviction dated 5.11.2004 rendered in Sessions Case No.621 of 2004 by the learned Additional Sessions Judge (Fast Track Court No.I), Chennai. * * * For Appellant No.1 : Mr.S.Jeyakumar For Appellant No.2 : Mr.V.Madhavan For Respondent : Mr.C.T.Selvam, A.P.P. * * * JUDGMENT M.THANIKACHALAM, J. The accused in Sessions Case No.621 of 2004, on the file of the Additional Sessions Judge (Fast Track Court No.I), Chennai, unable to resist the prosecution case successfully, received conviction and sentence and the result is this criminal appeal. 2. The respondent/police brought the accused/appellants before the trial Court, to face the charge under Section 302 r/w.34 IPC, on the ground that both of them have jointly attacked the deceased Srinivasan due to previous enmity, on 27.8.2004 at about 7.45 p.m. https://hcservices.ecourts.gov.in/hcservices/ in his house, thereby they have terminated the life of Srinivasan prematurely, for which they should be punished under Section 302 r/w.34 IPC. 3. The learned Sessions Judge, satisfying himself to proceed further, framed charges, questioned, which was denied by both the accused, resulting trial, by the examination of witnesses and marking documents and material objects. 4. The evaluation of the materials, produced by the prosecution, brought to surface, according to the learned Sessions Judge, that the charge against the accused is proved, beyond all reasonable doubt, and in this view, he had convicted both the accused under Section 302 r/w.34 IPC, slapping the sentence on them, to undergo life imprisonment and also to pay a fine of Rs.10,000/= each in default, to undergo RI for two years, which is under challenge in this criminal appeal. 5. The brief facts, necessary to dispose of the appeal: a) the first accused, by name Yuvaraj, is the second son of the deceased Srinivasan. The second accused, by name Kumar @ Kutty is the friend of the first accused. Srinivasan owned a house property in Ellaiamman Koil street, West Mambalam, Chennai-33 where the incident had taken place, which was sold by his wife and sons to one Sudhakaran, as seen from Ex.D.1 sale deed dated 24.11.2003. Even prior to the disposal of the property, there was dispute between the father and sons, in maintaining the house, collecting the rents and enjoying the same. The father, apprehending danger to his property as well as to his person, preferred complaints to the police under Exs.P.21 and P.24, which were enquired and closed under Exs.P.22 and P.25, as spoken to by P.Ws.11 and 13, considering the close relationship between the parties and nature of dispute, viz. civil. Because of the property dispute, there was enmity between father and son. b) P.Ws.1 to 3 are the tenants of the disputed property. The son/A.1, after the disposal of the property along with others, even prevented the tenants or requested them not to pay the rents to the father. When the same was informed by the tenants (P.Ws.1 and 3) to the deceased, he requested them to pay the rents to him, since he is the owner of the property, which caused more grievance, aggravating the enmity. Therefore, the first accused had decided to commit the murder of his father, to eradicate the problem once for all, with the aid of the second accused. https://hcservices.ecourts.gov.in/hcservices/ c) Both the accused were seen by P.Ws.5 and 6 near the building, before they went to the building of the deceased at about 7.00 p.m. or so. d) On 27.8.2004, at about 7.45 p.m., when the deceased was in his room, both the accused went there and assaulted Srinivasan, indiscriminately, causing cut injuries, using the weapons-M.Os.1 and 11. The deceased shouted for his life, ended in vain. But, the sound was heard by P.W.2, who was living just opposite to the room, where the incident had taken place. Immediately, on hearing the cry of a dying man, she raised alarm, which attracted P.Ws.1 and 3, who are having auto workshop and tailoring shop in the same building, on the Eastern side. When P.Ws.1 and 3 rushed to the scene of crime, they have seen both the accused running away from the scene of crime and one accused, viz. A.2, armed with knife-M.O.1. e) When P.Ws.1 and 3, peeped into the room of the deceased, they have seen Srinivasan in a pool of blood, died. Thereafter, ascertaining the name of the second accused also, P.Ws.1 and 3 went to the respondent Police Station where P.W.12 was working as the Sub Inspector of Police. f) P.W.1 preferred the complaint-Ex.P.1 and on receipt of the same, P.W.12, registered the case in Crime No.693/2004 under Section 302 IPC, for which he prepared Ex.P.23 printed FIR, which was sent to the Court concerned through H.C.7571, marking a copy to the Inspector of Police, then helping him in the investigation. g) On receipt of the copy of FIR, P.W.14-the Inspector of Police, took the case for investigation, reached the spot at about 20.30 hours, where he has noticed the body of Srinivasan, which was photographed with the help of the Photographer under Ex.P.13. Thereafter, in the presence of the witnesses-P.W.8 and others, P.W.14 prepared Observation Mahazar-Ex.P.8, as well as the sketch-Ex.P.26. From the scene of crime, P.W.14 also recovered material objects-M.Os.2 to 11, under Ex.P.9, in the presence of the same witnesses. h) In order to ascertain the cause of death, prima facie, as mandated under law, P.W.14 conducted inquest over the body of Srinivasan, on the same day between 22.15 and 23.45 hours and the results are incorporated in the Inquest Report-Ex.P.27. https://hcservices.ecourts.gov.in/hcservices/ i) At the request of the Investigating Officer, the Doctor- P.W.10 conducted autopsy over the body of Srinivasan on 29.8.2004 at 12.50 p.m. The autopsy conducted by P.W.10, including dissection of the body, revealed the following injuries, as noted in Ex.P.20 Post-Mortem Certificate: "1. Reddish Brown abrasions: 2 x 1 cms. over front of left clavicle 6 x 0.3 cms. seen over front of upper part of right chest 1 x 0.5 cms. seen over back of right elbow. 4 x 0.5 cms. seen over front of middle of right leg. 2 x 0.3 cms. seen over back of upper part of right index finger. 2. An incised wound 12 x 1 cms x bone deep over right side of face extending from outer aspect of right eye to right ear lobe. Cut fracture seen in the outer aspect of right orbit. 3. An incised wound 3 x 2 cms. x Skin deep over right side of face over the cheek with beveling of skin. 4. An incised wound 5 x 1 cms x bone deep over right side of chin. The underlying mandible shows a superficial cut fracture. 5. An oblique chop wound 9 x 5 x 2 cms. over front of upper part of neck with tailing over right side of neck. The underlying neck muscles and thyroid cartilage partially cut. 6. An incised wound 6 x 3 x 3.5 cms. over right side of lower part of neck. The underlying neck muscles, neck veins and arteries of right side of neck found severed. Underlying cervical rib found partly cut and the underlying spinal cord also found partly severed. 7. An incised wound 6 x 1 cms. x skin deep over front of right shoulder with tailing upwards. 8. An incised wound 6 x 1.5 cms x muscle deep on top of right shoulder with tailing medially. 9. An incised wound 5 x 2 cms x muscle deep on back of right shoulder. 10. An incised wound 1.5 x 0.5 x 0.5 cms on back of right index finger near the nuckle. 11. An incised wound 3 x 1 cms x skin deep over back of middle of right hand with tailing backwards. https://hcservices.ecourts.gov.in/hcservices/ 12. An incised wound 6 x 1 cms x bone deep over outer aspect of back of right hand and back of right little finger exposing the underlying severed muscles, tendons and bones. 13. An incised wound 3 x 0.5 x 0.5 cms. seen on back of left shoulder. 14. An oblique incised wound 5 x 2.5 cms. x bone deep over back of left wrist, exposing the underlying severed muscles, tendons and vessels. 15. An incised wound 7 x 1 cms x bone deep on back of left x middle finger up to the base. 16. An incised wound 4 x 1.5 cms. x bone deep on back of left side of neck with cut fracture over the underlying bone. 17. An incised wound 3 x 1 x 1 cms. on back of right side of neck exposing the underlying severed neck muscles." The Doctor opined that the deceased would appear to have died of "shock and haemorrhage due to multiple injuries." j) Thereafter, in continuation of the investigation, P.W.14 examined P.Ws.1 to 3, 6, 8 and other witnesses, recorded their statements, which were submitted to the Court, having jurisdiction. k) On 28.8.2004 and 29.8.2004, P.W.14 had examined some other witnesses and during the further investigation, he came to know that the accused have surrendered before the Judicial Magistrate, Ambattur on 30.8.2004. Thereafter, the Investigating Officer, filed an application before the Judicial Magistrate, took them into police custody and examined them on 10.9.2004 in the presence of P.W.7 and others. The accused voluntarily, on their own, confessed to the Investigating Officer that they will take him to the place where the weapon is concealed. l) Pursuant to the confession-Ex.P.6, both the accused took P.Ws.7, 14 and others to a shed nearby a house bearing Door No.3/4, Arunachalam First Street, Senthamil Nagar, Ramapuram, from where they took out a knife-M.O.1 and handed over the same to the Investigating Officer, which was recovered by him under Ex.P.7. m) In order to ensure that the witnesses who have been examined, should not derail, the Investigating Officer requested the Judicial Magistrate, under Ex.P.11, to record their statements under Section 164 Cr.P.C., which was complied with by P.W.9, recording the statements of the witnesses, as seen from Exs.P.12 to P.18. https://hcservices.ecourts.gov.in/hcservices/ n) As requested by the Investigating Officer, at the instance of the Court, under Ex.P.2, P.W.4 examined the material objects-M.Os.1 to 11 and also ascertained the blood group of the deceased as ‘A’. The Forensic Department officials had also noticed ‘A’ group blood in M.O.1, as disclosed by Ex.P.4. The blood sample of the deceased, which was sent from the hospital was examined, which also revealed the blood group as ‘A’, as indicated in Ex.P.5. o) Thus collecting the materials, when P.W.14 analysed the same, it revealed that both the accused should have committed the offence, due to previous property dispute and in this view, a final report came to be filed, before the 23rd Metropolitan Magistrate, Chennai, who committed the case to the Sessions Court, leading to trial, ending in conviction, after the examination of the accused also under Section 313 Cr.P.C., as mandated, which is impugned in this appeal. 6. Heard Mr.S.Jeyakumar, the learned counsel for Appellant No.1, Mr.V.Madhavan, the learned counsel for the Appellant No.2 and Mr.C.T.Selvam, the learned Additional Public Prosecutor for the respondent/State. 7. There is no dispute that in an incident which took place on 27.8.2004, at about 7.45 p.m., in a room situated in D.No.39, Ellaiamman Koil Street, West Mambalam, Chennai, Srinivasan/the father of the first accused, was murdered. This fact was intimated to the police, resulting investigation. During investigation, the cause of death of Srinivasan was ascertained scientifically, by conducting autopsy, as spoken to by P.W.10. The Doctor, who conducted the autopsy over the body of Srinivasan on 29.8.2004, at about 12.50 p.m., had noticed as many as 17 injuries of various dimensions, as described by us supra, which should have been caused by deadly weapons, such as knives, since all the wounds are either incised, chop wound or cut injury etc. The number of injuries inflicted over the body of Srinivasan show the velocity of the attack and the intention of the assailants viz. that there should be no chance for the deceased to escape from the attack. More or less, by chopping the deceased, causing multifarious injuries, it seems, the life of Srinivasan was prematurely terminated at the spot. 8. The Doctor, who conducted the Post-Mortem also certifies that Srinivasan died of shock and haemorrhage due to multiple injuries. The injuries noted by the Doctor, cause of death ascertained by him, exposed before the Court, are not challenged by the defence, when he was in the box as P.W.10. An attempt was made in the cross-examination, to say, as if treatments were given immediately, there might have been a possibility to save the life, https://hcservices.ecourts.gov.in/hcservices/ which cannot be inferred from the injuries sustained by him, which had caused profused bleedings, giving no chance for breathing any more. Therefore, accepting the oral evidence of P.W.10 and the Post-Mortem certificate, where the cause for death is specifically assigned, we conclude that this is a case of homicide, should come within the meaning of ‘murder’. Therefore, we have to see, whether the accused had caused the injuries over the body of Srinivasan, which should have terminated his life. If the prosecution makes out a case that both the accused have inflicted those injuries, with common intention and common object, then, certainly, they have to answer the penal provisions of Section 302 r/w.34 IPC. 9. Mr.S.Jeyakumar, the learned counsel appearing for the first appellant and Mr.V.Madhavan, the learned counsel appearing for the second appellant attempt to assail the conviction and sentence of the appellants inter alia on the following grounds, viz.: i) that the motive alleged, for the commission of the offence, is not at all proved; ii) that there is inordinate, indelible and unexplained delay in forwarding the printed FIR to the Magistrate concerned, which should raise unquestionable doubt, warranting the benefits of doubt be given to the accused; iii) that deliberation and consultation should have taken place which caused delay and in that process alone, the names of the appellants are roped in the FIR, including the name of the second appellant/A.2, despite the fact, he is not known to P.W.1, as admitted by him; iv) that the evidence given by P.Ws.1 to 3 are undependable and not trustworthy, because of the inbuilt contradictions and inherent improbabilities; v) that there are innumerable and unpardonable lapses committed by the Investigating Officer, while conducting the so-called investigation, thereby spontaneous doubts have arisen and its benefit should go to the accused, in addition to some other minor points, in support of the above contentions which we will discuss then and there. 10. We have heard the learned Additional Public Prosecutor on the above points, who had supported the case of the prosecution, seeking aid from the reasonings assigned by the learned trial Judge. 11. Admittedly, there is no direct eye-witness to prove the actual assault, in the sense, seeing the actual attack and the prosecution mainly relies upon the circumstantial evidence to prove the guilt of the accused. The circumstances are https://hcservices.ecourts.gov.in/hcservices/ (a) motive and the intention to commit the murder because of the property dispute; (b) the witnesses seeing the accused, just prior to the incident nearby the building, where the incident had taken place; (c) the witnesses seeing the accused, viz. after the incident coming out from the room of the deceased with bloodstained dresses as well as a knife; (d) the confession of the accused (A.1) leading to recovery of M.O.1, which does contain the blood group of the deceased and (e) prompt lodging of FIR wherein names of the accused are given, in addition to other attending circumstances in support of the above main circumstances. 12. Law recognises circumstantial evidence, to record a conviction, since men may lie, but circumstances never. Therefore, when the prosecution relies on circumstantial evidence, the circumstances, so relied on, must be very strong, cogent, connecting with each other, not giving even a slightest doubt to snap the same, targeting or pointing the accused alone, ruling out the possibility or probability of any other persons involvement in the offence. It is the universal law, nothing takes place without cause of action. In this view, motive also takes some pre-dominant role in the case of circumstantial evidence. Therefore, we will deal with the motive part, first. 13. Ex.D.1 is the sale deed executed by the sons of the deceased and wife Kuppammal in favour of Sudhakaran. In Ex.D.1 itself, it is stated that the property originally belonged to Kuppammal and she had settled the same in favour of her husband Srinivasan, under a settlement deed dated 14.2.1980. It also says, the said settlement deed was cancelled under a cancellation deed dated 7.8.2003 and Kuppammal executed two settlement deeds dated 13.8.2003 in favour of her two sons. It is the case of the prosecution that the property belonged to the deceased Srinivasan, which is, in a way, admitted in the sale deed itself, since the execution of the settlement deed by Kuppammal to her husband Srinivasan is admitted. When an irrevocable settlement deed has been executed, it is not ordinarily liable to be cancelled by mere executing a cancellation deed and if at all, it could be cancelled under due process of law on the grounds of misrepresentation, coercion, fraud etc., which we are not much concerned in this case. 14. By Ex.D.1 itself, it is prima facie, made out that there was some dispute between Srinivasan on one hand and his sons and wife on the other hand, claiming title over the disputed property, wherein the deceased was also living in a room, though others had https://hcservices.ecourts.gov.in/hcservices/ vacated the premises after the sale. On 6.4.2003, as evidenced by Ex.P.21, which is spoken to by P.W.11, the deceased Srinivasan had preferred a complaint against his sons and wife, accusing them that they are conspiring together to murder him and further apprehending danger even to his life at any time, requesting to take not only appropriate action but also to provide protection. The complaint was registered as C.S.R. and enquired, which is evident from the oral evidence of P.W.11. After enquiry, on the basis of the undertaking given by the parties, that they will not cause any further problems, as well as considering the near relationship, further action was dropped, closing the petition on 12.4.2003. Thus, it is seen, even in the month of April, 2003, the deceased had the apprehension that his sons may cause injuries to him, in order to eradicate even from the world, which proved to be true at later stage, which we will discuss infra. 15. Thereafter, on 25.3.2004, as seen from Ex.P.24 and as spoken to by P.W.13, Srinivasan preferred a complaint against his sons accusing them, that they have damaged the properties, for which action should be taken. After enquiry, as seen from Ex.P.25, because of the relationship or the assurance given by the sons of deceased, the same was closed as proved by Ex.P.25. From the above documents, it is evident that there was continuous dispute between the father and sons. 16. The learned counsel appearing for the accused/appellants would submit that the above said documents viz. Exs.P.21, P.22, P.24 and P.25 were prepared subsequently, for the occasion to prove the alleged motive, which were not in existence as dated and therefore, on that basis, to add strength to the circumstantial evidence, this alleged motive cannot be taken into consideration. In support of the above submission, our attention was drawn to the non-sealing of the documents by the Court. But, by going through the cross- examination of P.Ws.11 and 13, we are unable to subscribe our view to the said submission and we should disagree with the learned counsel for the appellants since in cross-examination, it is admitted. 17. Opportunity was given to cross-examine P.Ws.11 and 13. If Exs.P.21, P.22, P.24 and P.25 are not the genuine documents or prepared for the occasion, the documents should have challenged at the time of the cross-examination, for which alone opportunities are given. The answers elicited from the mouth of P.W.11 during the cross-examination, would suggest that the complaints given by the father is admitted. It is suggested to P.W.11 that the complaint was given only for the purpose of evicting them from the house, which reads in Tamil: https://hcservices.ecourts.gov.in/hcservices/ ",e;j g[fhh; kD mth;fis tPl;oypUe;J fhyp bra;a ntz;Lk; vd;w nehf;fj;njhL bfhLf;fg;gl;ljhfr; brhd;dhy; rhpjhd;; ; " This would suggest that the complaint was given by Srinivasan whether the allegations therein are true or not. Nowhere it is suggested even that Srinivasan has not given any such complaint, Ex.P.21, dated 6.4.2003. In the same manner, when P.W.13 has deposed, preferring Ex.P.24 complaint as per the date, it was not challenged. Therefore, accepting these documents that they should have come into existence on the dates mentioned therein, we are constrained to hold, on the basis of the averments available therein, that there was dispute between father and sons regarding the enjoyment of the property, which was subsequently sold. This conclusion is fortified by the oral evidence of P.Ws.1 and 3 also. 18. Section 155 of the Indian Evidence Act catalogues on what grounds, the credibility of a witness could be impeached as follows: "The credit of a witness may be impeached in the following ways by the adverse party, or with the consent of the Court, by the party who calls him: (1) by the evidence of persons who testify that they, from their knowledge of the witness, believe him to be unworthy of credit; ... (3) by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted;" 19. A careful reading of the cross-examination of the witnesses, by the defence, makes it crystal clear that they have not even denied the case spoken to by P.Ws.1 to 3, suggestively also, to some extent, which we will discuss then and there, depending upon the occasion. P.Ws.1 and 3 have deposed about the property dispute and the frequent quarrel between father and sons which are not denied positively, though P.W.1 was questioned whether he knew the complaint given by Srinivasan to R-6 Kumaran Nagar Police Station. Under the above said circumstances, if we read the oral evidence of P.Ws.1 and 3, coupled with the documents mentioned above, which are proved by the examination of P.Ws.11 and 13, the only irresistible conclusion that could be drawn by the Court is, that there was motive for the son/A.1 to commit patricide, because of the enmity, which had arisen due to property dispute. We are fully conscious of the law that mere motive alone is not sufficient to rope in a person as culprit, unless it is proved that as per the motive, the person acted and committed the offence and in this view, we have to see the role played by the accused in the alleged incident. https://hcservices.ecourts.gov.in/hcservices/ 20. The main thrust of the learned counsel for the appellants/accused in this case is that there is inordinate and unexplained delay, in forwarding the printed FIR to the Judicial Magistrate and the non-explanation should lead to the only conclusion, that the complaint also should have been prepared after deliberations and that is why, the delay could have been caused. It is the further submission that since there was no FIR, followed by registration of a case, no particulars are noted in the inquest report and in this view, it should be held, case was registered later, thereby causing delay in sending the FIR to the Court also, in the meantime fixing the accused. 21. The incident took place on 27.8.2004 at 7.45 p.m., as per the case of the prosecution. As per the evidence given by P.W.12, the complaint was received on the