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

on 25.01.2004 at 22:45 hours, Dhanaprabhu (hereafter referred to as thelodged a First Information Report in Police Station K.4, Anna Nagar. In this First Information Report, the informant stated: his father and he had been running a plastic company in the name of ‘Economic Plasticand his younger brother, Ravi, is also in the said business. There was previous enmity between Ravi and one Elumalai and on 25.01.2004 at around 5.30 p.m. Elumalai telephoned to the wife of Ravi, Vijayalakshmi, and threatened her saying ‘Ask your husband to behave or else, things will beand Vijayalakshmi informed this to her husband Ravi. On the same day, at around 10.00 p.m., the informant, Ravi and his friend Gubendiran were on their way to Naduvankarai Pillaiyar Kovil Street, through the Naduvankarai Bridge. While crossing the Seema Matriculation School at around 10.15 in the night, they saw Elumalai, and Ravi asked Elumalai as to why he telephoned to his wife and threatened her, and at once Elumalai and Prakash retaliated and took out knives from their hips and hacked Ravi on his head.head got cut and smashed and Ravi fell down in a pool of blood.Gubendiran, who attempted to prevent the attack, was hacked by Prakash with a knife and this was intercepted by Gubendiran with his left hand and Gubendiran started bleeding. Thereafter, Babu, Senthil and Nagaraj, who were with Elumalai, hacked on the head of Ravi with their knives and all of them ran away with their knives towards the East and Ravi died on the spot. Pursuant to the FIR, a case was registered under Sections 147, 148, 341, 324 and 302 of the Indian Penal Code, 1860 (for short ‘theAfter investigation, a charge-sheet was filed against Elumalai (A-1), Prakash (A-2), Babu (A-3), Senthil (A-4), Nagaraj (A-5) and Udaya (A-6).3. At the trial, the informant was examined as PW-1. Gubendiran, who accompanied Ravi on 25.01.2004 to the place of occurrence and witnessed the occurrence and got injured, was examined as PW-2. Nagarajan, who had gone in search of Ravi on 25.01.2004 at about 10clock in the night and come to the place of occurrence, was examined as PW-3. On the basis of the evidence of PW-1, PW-2 and PW-3 as well as other witnesses, the trial court convicted A-1, A- 2, A-3 and A-4 under Sections 148 and 324 IPC read with Section 149 IPC and Section 302 IPC read with Section 149 IPC and also convicted A-6 under Sections 147 and 324 IPC read with Section 149 IPC and Section 302 IPC. The trial court, however, acquitted A-5 of all the charges. Aggrieved, the appellants filed Criminal Appeal Nos. 509, 641, 551 and 552 of 2006 before the High Court and by the impugned judgment, the High Court acquitted A-6 (the appellant in Criminal Appeal No. 509 of 2006), but maintained the convictions of A-1, A-2, A-3 and A-4. Aggrieved, A-1, A-2, A-3 and A-4 have filed these criminal appeals.

Reasoning:
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.