Case: Babu &amp; Others Vs. State rep. by Inspector of Police, Chennai

and registered Crl No.181/2004 under Sections 147, 148, 341, 324 and 302, IPC. The complaint written by PW-1 has been marked as Ext.P-1 and the printed FIR prepared by PW-13 has been marked as Ext.P-21. PW-13 has further stated that the printed FIR was sent to the 5th Metropolitan Magistrate and the copies were sent to the higher officials concerned and immediately he visited the place of occurrence at 11.30 p.m. The evidence of PW-13 is supported by the evidence of PW-1 who has stated that after his brother died, he informed his house and informed the police at K.4 Anna Nagar Police Station and the police came and saw the place at which the murder was committed. In his cross examination, however, he has stated that Sub-Inspector had written the FIR and that he did not know the name of the Sub-Inspector and he saw the Inspector on the next day and when he lodged the complaint he has not seen the Inspector. On a reading of the evidence of PW-1, in its entirety, one can only come to the conclusion that the FIR was lodged by PW-1 on 25.01.2004 soon after the incident between 10.30 p.m. to 11 p.m. but PW-1 was confused as to the designation of the officer before whom he lodged the FIR, the Sub-Inspector or the Inspector. We have, therefore, no doubt that the FIR was lodged at the K.4 Police Station within half an hour of the incident on 25.01.2004. Hence, the decision of this Court in Meharaj Singh (L/Nk.) etc. v. State of U.P. (supra) that where there is delay in lodging of the FIR, there is danger of introduction of a false prosecution story does not apply to the facts of the present case.16. We also do not find any merit in the submission of learned counsel for the appellants that there was no evidence to show that at the residence of the deceased there was a telephone through which the wife of the deceased received the threat call from A-1 at 5.30 p.m. on 25.01.2004. PW-1 has stated that the wife of the deceased Vijayalakshmi had a mobile phone and A-1 had talked over cell phone to Vijayalakshmi. Similarly, we do not find any merit in the submission of learned counsel for the appellants that the prosecution case should not be believed as the knives (MO 1 to MO 5) which have been recovered had not been examined by the finger print experts to find out the real accused persons because in this case there is direct evidence of three eye witnesses, PW-1, PW-2 and PW-3, to establish beyond reasonable doubt that the appellants had struck the deceased with knives. If a defect in the investigation does not create a reasonable doubt on the guilt of the accused, the Court cannot discard the prosecution case on the ground that there was some defect in the investigation. 17. We are also not convinced with the submission of the learned counsel for the appellants that this was a case which fell under Exception 4 to Section 300, IPC. Exception 4 to Section 300, IPC is quoted hereinbelow: “Exception 4. Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.” The language of Exception 4 to Section 300 is, thus, clear that culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel provided the offender has not taken undue advantage or acted in a cruel or unusual manner. In this case, there is no evidence to show that the deceased was armed in any manner when he questioned A-1 as to why he had threatened his wife. On the other hand, the appellants were armed with knives and attacked the deceased on his head and face even after he fell down. Thus, A-1, A-2, A-3 and A-4, who were the offenders, have taken undue advantage and acted in a cruel and unusual manner towards the deceased who is not proved to have been armed. 18. Moreover, we find from the evidence of PW-7, the doctor who conducted the post mortem of the deceased on 26.01.2004 at around 12.45 hours, that he found as many as six injuries on the head and face of the deceased. These injuries are extracted hereinbelow: “Injury 1: A bruised injury in red colour admeasuring 3x2 cm on the left cheek and in 2x2 cm at the tip of the nose.Injury 2: An oblique incised injury 3x0.05 cm bone deep on the lower jaw.Injury 3: An incised injury vertical, 2x0.5 cm bone deep on the left side of the lower jaw.Injury 4: An incised injury, oblique 3x05 cm muscle deep on the lower lip on its right side.Injury 5: Several incised injuries crosswise and longitudinal. On opening it, it was found that the tissues on the cranium were found bruised and the bones of the skull fractured and brain smashed and visible from outside.Injury 6: An incised injury seen horizontally and gaping in between the eyes, 22x6 cm. on dissecting, it was found that, all the tissues, nerves and blood vessels had got cut the face was smashed and the upper jaw bone and the lower jaw bone crumbled. Both the eyes had got completely smashed and seen outside the eye-sockets. The teeth in the upper jaw and those of the lower jaw were broken and some fallen.” PW-7 has further stated that due to these injuries sustained on his head and face, the deceased would have died as has been expressed by him in the post mortem report Ext.P-7. Considering the nature of the injuries and, in particular, injury nos.5 and 6, we have no doubt that the common intention of A-1, A-2, A-3 and A-4 was to cause the death of the deceased.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]We have considered the discrepancies in the eye-witnesses account of the occurrence given by PW-1, PW-2 and PW-3 pointed out by the learned counsel for the appellants with regard to the names and number of persons who were present at the place of occurrence when the incident took place on 25.01.2004, but we find that PW-1, PW-2 and PW-3 were examined on 21st September, 2005 more than one and a half years after the incident and it was natural for them to differ in some respects of what they saw and what they remember. As has been held by this Court in State of Rajasthan v. Smt. Kalki and Another [(1981) 2 SCC 752] , in the depositions of witnesses there are always normal discrepancies however honest and truthful the witnesses may be and these discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like.15. We have also considered the contention of the learned counsel for the appellants that it is doubtful that the FIR was registered at the Police Station and that the FIR may not have been registered on 25.01.2004 but on the next day when PW-1 met the Inspector of the Police Station. We, however, find that the Inspector of Police who has been examined as PW-13 has stated very clearly in his evidence that on 25.01.2004 at 10.45 pm when he was at the Police Station, PW-1 lodged a complaint and he wrote down that complaint and read it over to PW-1 and obtained his signature and registered Crl No.181/2004 under Sections 147, 148, 341, 324 and 302, IPC. The complaint written by PW-1 has been marked as Ext.P-1 and the printed FIR prepared by PW-13 has been marked as Ext.P-21. PW-13 has further stated that the printed FIR was sent to the 5th Metropolitan Magistrate and the copies were sent to the higher officials concerned and immediately he visited the place of occurrence at 11.30 p.m. The evidence of PW-13 is supported by the evidence of PW-1 who has stated that after his brother died, he informed his house and informed the police at K.4 Anna Nagar Police Station and the police came and saw the place at which the murder was committed. In his cross examination, however, he has stated that Sub-Inspector had written the FIR and that he did not know the name of the Sub-Inspector and he saw the Inspector on the next day and when he lodged the complaint he has not seen the Inspector. On a reading of the evidence of PW-1, in its entirety, one can only come to the conclusion that the FIR was lodged by PW-1 on 25.01.2004 soon after the incident between 10.30 p.m. to 11 p.m. but PW-1 was confused as to the designation of the officer before whom he lodged the FIR, the Sub-Inspector or the Inspector. We have, therefore, no doubt that the FIR was lodged at the K.4 Police Station within half an hour of the incident on 25.01.2004. Hence, the decision of this Court in Meharaj Singh (L/Nk.) etc. v. State of U.P. (supra) that where there is delay in lodging of the FIR, there is danger of introduction of a false prosecution story does not apply to the facts of the present case.16. We also do not find any merit in the submission of learned counsel for the appellants that there was no evidence to show that at the residence of the deceased there was a telephone through which the wife of the deceased received the threat call from A-1 at 5.30 p.m. on 25.01.2004. PW-1 has stated that the wife of the deceased Vijayalakshmi had a mobile phone and A-1 had talked over cell phone to Vijayalakshmi. Similarly, we do not find any merit in the submission of learned counsel for the appellants that the prosecution case should not be believed as the knives (MO 1 to MO 5) which have been recovered had not been examined by the finger print experts to find out the real accused persons because in this case there is direct evidence of three eye witnesses, PW-1, PW-2 and PW-3, to establish beyond reasonable doubt that the appellants had struck the deceased with knives. If a defect in the investigation does not create a reasonable doubt on the guilt of the accused, the Court cannot discard the prosecution case on the ground that there was some defect in the investigation.