Madras High Court
Kumar Alias Thambi vs State Through on 2 February, 2012
Author: P.Devadass
Bench: N. Paul Vasanthakumar, P. Devadass
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 02/02/2012 CORAM THE HONOURABLE MR. JUSTICE N. PAUL VASANTHAKUMAR And THE HONOURABLE MR. JUSTICE P. DEVADASS Criminal Appeal (MD) No.490 of 2010 and Criminal Appeal (MD) No.496 of 2010 Criminal Appeal (MD) No.490 of 2010 Kumar alias Thambi ... Appellant v. State by The Inspector of Police, Dindigul Taluk Police Station, Dindigul District. (Crime No.818 of 2004) ... Respondent Amended as per the orders of this Court in M.P.No.1/2011 in Crl.A.(MD)No.490/2010 vide order dt:01.04.2011. Criminal Appeal (MD) No.496 of 2010 1.A.Ganesan 2.Murugan 3.Balan @ Balaguru 4.Pandi 5.Sakthivel ... Appellants Vs. State through The Inspector of Police, Dindigul Taluk Police Station, Dindigul. (Crime No.818 of 2004) ... Respondent Appeals filed under Section 374 of the Criminal Procedure Code against the Judgment of the Court of Additional Sessions Judge(Fast Track Court), Dindigual made in S.C.No.7 of 2010 dated 22.11.2010. !For Appellant in C.A.(MD).No.490/2010 ... Mr.S.Ramasamy For Appellants in C.A.(MD) No.496/2010 ... Mr.P.Andiraj for Mr.V.Natarajan ^For Respondent in both the appeals ... Mr.K.S.Durai Pandian Addl. Public Prosecutor :COMMON JUDGMENT
P.DEVADASS, J.
1. Though two separate appeals have been filed by two sets of accused, since the appeals are connected on facts, law and evidence this common judgment is being rendered.
2. A.1 Ganesan, A-3 Murugan, A-5 Balan @ Balaguru, A-6 Pandi and A-7 Sakthivel in S.C.No.7 of 2010 before the learned Additional Sessions Judge(Fast Track Court), Dindigul are appellants 1 to 5 in Criminal Appeal (MD) No.496 of 2010 and A-4 Kumar @ Thambi is appellant in Criminal Appeal (MD) No.490 of 2010.
3. For convenience sake, let us call them as they were arrayed in the Trial Court, namely, A.1, A3, A5 to A.7 (appellants in Criminal Appeal (MD) No.496 of 2011 and A-4 (appellant in Criminal Appeal (MD) No.490 of 2010).
4. The prosecution version of the case in brief runs as under:-
(i) Murugan (deceased) and Pandiammal belong to Mathanapatti in Dindigul Taluk. They had love affair. A Panchayath was held. Pandiammal was married to her uncle's son A-1 Ganesan. Murugan was married to Amutha(PW.3). Murugan was living in his wife's village Kapiliapatti. After few years, Pandiammal frequented the village. Old contact between the ex-lovers got renewed. In July,2004, Murugan took her away and kept her somewhere in Dindigul. A-1 and his brothers A-2 Manimaran (died during the trial), and A-3 Murugan warned him to hand over her, otherwise, he will be killed.
(ii) On 15.07.2004, at about 3 p.m., Murugan and his relative Ganesan (PW.1) went in Murugan's bike (M.O.11) to Vadamadurai. After meeting his mother Thangammal (PW.4) and his sister Paunthai (PW.5), Murugan was returning in his bike keeping PW.1 as pillion-rider. At about 5 p.m., in Chinnakulam Kanmoi, near one Palanisami's land, they have seen A-7 Sakthivel on wait; A-1 to A-6, Ganesan, Manimaran, Murugan, Kumar @ Thambi, Balan @ Balaguru and Pandi were standing armed with lethal weapons. Murugan and P.W.1 alighted from the bike.
A-1 telling Murugan that he had spoiled his family, cut him on his left hand with a bill-hook, A-2 cut him on the right side of his head with a bill-hook, A- 3 stabbed him on his left chest with a knife, when P.W.1 intervened, A-4 assaulted him on the back of his neck with a knife, A-5 and A-6 assaulted him with knives. P.W.1 ran away and hide himself in a nearby hide-out. P.W.7 Ravi witnessed the entire occurrence. A-7 alerted the co-accused. All have escaped with their weapons. Murugan died on the spot.
(iii) P.W.1 went to RVS Nagar, met his relative PW.2 Mathan at his house. They came to Government District Head Quarter's Hospital, Dindigul. P.W.16 Dr.Jain Lal Prakash treated P.W.1 and noticed a lacerated wound right super spiuendum of right scapula 4 x 1 x 1 cm; it is a simple injury (Ex.P.19 Accident Register).
(iv) At about 11.30 p.m., P.W.22 Muthukrishnan, Sub-Inspector of Police, Dindigul Taluk Police Station, received message from the Govt.District Head Quarters Hospital, Dindugul. He went to the Hospital, obtained Ex.P1 statement from PW.1 and came back to his Station, at about 12.30.a.m., registered a case in Crime No.818 of 2004 under Sections 147,148,341,307 and 302 IPC.
(v) At about 1 a.m., P.W.20 Head Constable, Mathiazhagan, received Express FIR (Ex.P28) and at about 4 a.m., handed over it to Judicial Magistrate No.1, Dindigul.
(vi) On receipt of a copy of the FIR, PW.23 Inspector Sivagnanam took up his investigation. At the scene place, he examined the witnesses and recorded their statement. In the presence of PW.14 Santhanam and Pandian, PW.23 prepared Ex.P15 observation mahazar, drew Ex.P.16 rough sketch, recovered MO.15 blood- stained sand, M.O.16 plain-sand, MO.17 Rs.1,740/-, MO.18 dhothi, MO.19, wrist- watch and MO.20, a pair of chappals under Ex.P.14 mahazar. In the presence of Panchayatars, P.W.23 held inquest over the dead body (Ex.P.29 Inquest Report). He sent the dead body through PW.21 Head Constable Joseph Savaridass, with his requisition Ex.P17 to the Government District Head Quarters Hospital, Dindigul for conducting autopsy.
(vii) On 16.07.2004, at about 1.30 p.m., at the said hospital, PW.15 Dr.Tmt.Reena Prabha Kokila conducted post-mortem and found the following injuries:-
External Injuries:-
1. Incised wound 4 x 3 cms x bone fractured over the left parietal bone.
2. Incised wound 5 x 2 cm x bone death with skull fractured over the right parietal bone.
3. Incised wound 4 x 2 cms x bone depth over the vertex.
4. Incised wound 6 x 2.5 cm x bone fractured over the occiput behind the right ear.
5. Incised wound 4 x 3 x 2 cms over the back of the skull.
6. Incised wound extending from left angle of mouth to left ear depth 2 cms.
7. Incised wound left side of neck below the mandible extending deep to vessels 7 x 2 cms.
8. Incised wound right side from of chest near the axilla 5 x 2 x 3 cms.
9. Incised wound left side of chest below the nipple 6 x 3 cms.
10. Incised wound right side of chest just voer and lateral to the sternum 6 x 2 cms.
11. Incised wounds 6 x 3 cms in upper abdomen towards right side.
12. Incised wound right arm 7 x 3 x 3 cms.
13. Right hand incised wound involving all fingers except the little finger with fracture proximal phalanx right thumb.
14. Dislocated left thumb incised wound 3 x 2 cms.
15. Incised wound right thigh 10x 4 cms with bone fractured.
16. Incised wound 5 x 2 x 2 cms left thigh inner side.
17. Incised wound 6 x 2 x 2 cms left upper thigh.
18. Incised wound 2 x 1 x 2 cms left groin.
19. Incised wound 5 x 2 x 2 cms left shoulder and left forearm.
20. Incised wound 3 x 2 x 2 cms left side of back of chest.
P.M.Examination:
Skull- fractured both parietal bones and occiput on right side - Membranes ruptured. Intra cerebral Heamorrhage present. Heart: empty - incised wound right ventricle present: Ribs - fracture left 2nd and 5th ribs fracture right present 8th & 9th rib; Lungs incised wound left lower lobe; Hyod intact; Liver incised wound in the left lobe of the liver Haemoperitoneum present.
(viii) PW.15 opined that the deceased would appear to have died of shock and hemorrhage due to multiple injuries sustained (Ex.P18 post mortem certificate). She also opined that these injuries are possible by weapons like MOs.4 to 8 bill-hooks and knives.
(ix) After post-mortem, PW.21, recovered MOs.22 to 24 jatti, banian and shirt from the dead body and handed over them to P.W.23 and the dead body to the relatives.
(x) In the course of his investigation, on 19.07.2004, at about 10 a.m., on Dindigul - Karur Road, near the Thanneer Pandal bus-stop, in the presence of P.W.10 Devendran and Selvaraj, P.W.23 arrested A.4 and recorded his confessional statement(Ex.P2) and in pursuance of that, from below the Chandanavarthini Bridge, on the Dindigul - Karur Road, at about 12.30 noon, A-4 produced MO.5 knife and MO.12 blood-stained half hand shirt. P.W.23 seized them under Ex.P.3 mahazar and sent him to the court for judicial custody.
(xi) On 21.07.2004, at about 6.30 a.m., near Saravana Hotel bus- stop, Dindigul, PW.23 arrested A-1, A.3 and A.5, in the presence of PW.11 Balasubramani and Kasthuri Rangan, V.A.O and recorded their confessional statements Exs.P4 to P6 and in pursuance of that, on the Karur Road, near Lakshmanapatti Bridge, A-1 produced MO.6 bill-hook and MO.13 blood stained shirt, in the presence of the said witnesses, P.W.23 recovered them under Ex.P-7 mahazar; from below the Nandavanapatti bye-pass road bridge, A-3 produced MO.4 knife and M.O.14 blood-stained shirt, in the presence of the said witnesses, P.W.23 seized them under Ex.P8 mahazar; A-5 produced MO.8 knife, PW.23 seized it under Ex.P9 mahazar. P.W.23 produced the accused to the court for judicial custody.
(xii) On 29.07.2004, A-6 surrendered before Judicial Magistrate No.V, Madurai. On 03.08.2004, PW.23 obtained his custody from Judicial Magistrate No.1, Dindigul. In the presence of P.W.12 Muthusamy and Muniyandi, A-6 gave Ex.P10 confessional statement to PW.23 and in pursuance of that, from a land in Savariarpatti, A-6 produced M.O.7, bill-hook and M-80 bike (MO.10) and PW.23 seized them under Ex.P11 mahazar.
(xiii) On 04.08.2004, at about 6 a.m., in his house, in Kumaran Thirunagar, P.W.23 arrested A-7. In the presence of PW.13 Akkaravel and Palani, A-7 gave Ex.P12 confessional statement to PW.23 and in pursuance of that, from his house, A-7 produced a scooter(MO-9) and PW.23 seized it under Ex.P13 mahazar. PW.23 sent the arrested accused to the Court for judicial custody. He produced the case-properties to the Court. The court sent them under Ex.P.21 letter to Lab for analysis (Ex.P-21 letter). Chemical Analysis and Serological Reports Ex.P22 and Ex.P23 were received. Completing his investigation, P.W.23 filed the Final Report for offences under sections 120-
B,147,148,149,109,341,307 and 302 IPC.
5. The accused stood charged as under:-
Accused Charges A-1 120(B), 148, 341, 302 IPC A-3 148, 341, 302 r/w 109 IPC A-4 148, 341, 307, 302 r/w 109 IPC A-5 148, 341, 302 r/w 109 IPC A-6 148, 341, 302 r/w 109 IPC A-7 147, 341, 302 r/w 149 IPC
6. To establish the charges, prosecution examined PWs.1 to 23, marked Exs.P1 to P29 and exhibited MOs.1 to 24.
7. The accused were examined under Section 313 Cr.P.C. on the incriminating aspects in the prosecution evidence. They have denied their complicity in this case. A-1 examined himself as D.W.1 and marked Ex.D1 Almanac and its page 50 as Ex.D.2 to the effect that on 17.07.2004, it was Amavasai.
8. Appreciating the above evidence and the submissions of the learned Public Prosecutor and the learned defence counsel, on 22.12.2010, the learned Additional Sessions Judge (Fast Track Court), Dindigul, came to the conclusion that the prosecution had established its case beyond all reasonable doubts and convicted and sentenced the accused as detailed below:-
Accused Conviction Sentence imposed under section A.1 120-B IPC 6 months Rigorous imprisonment 148 IPC 3 Years Rigorous imprisonment 302 IPC Life sentence and fine of Rs.2000/-, in default, 6 months Rigorous Imprisonment 341 IPC 1 month Rigorous Imprisonment A-3 120-B IPC 6 months Rigorous Imprisonment 148 IPC 3 Years Rigorous Imprisonment 302 r/w109 IPC Life sentence and fine of Rs.2000/-, in default, 6 months Rigorous Imprisonment.
341 IPC 1 month Rigorous Imprisonment A.4 120-B IPC 6 months Rigorous Imprisonment 148 IPC 3 Years Rigorous Imprisonment 302 r/w 109 IPC Life Sentence and fine of Rs.2,000/-, in default, 6 months Rigorous Imprisonment.
307 IPC 10 years Rigorous Imprisonment 341 IPC 1 month Rigorous Imprisonment A-5 120-B IPC 6 months Rigorous Imprisonment 148 IPC 3 Years Rigorous Imprisonment 302 r/w 109 IPC Life Sentence and fine of Rs.2,000/-, in default,6 months Rigorous Imprisonment.
341 IPC 1 month Rigorous Imprisonment A-6 120-B IPC 6 months Rigorous Imprisonment 148 IPC 3 Years Rigorous Imprisonment 302 r/w 109 IPC Life Sentence and fine of Rs.2,000/-, in default,6 months Rigorous Imprisonment 341 IPC 1 month Rigorous Imprisonment 7 120-B IPC 6 months Rigorous Imprisonment 148 IPC 3 Years Rigorous Imprisonment 302 r/w 109 IPC Life sentence and fine of Rs.2,000/-, in default, 6 months Rigorous Imprisonment All their substantive sentences were ordered to run concurrently.
9. Mr.P.Andiraj, learned counsel for A-1,A-3, A-5 to A.7 assailed the conviction and the sentences imposed upon them as under:-
(i) The lodging of FIR as stated by the prosecution is highly doubtful.
Prosecution evidence itself shows that the true and the earliest version as to the real occurrence has been suppressed and in its place, a concocted FIR has been brought in through PW.1 aided by P.W.2.
(ii) The conduct of the alleged injured cum eye-witness P.W.1 in not immediately revealing the occurrence to the close relatives of the deceased and going straight away to P.W.2 and recount him the occurrence is strange and against ordinary course of human conduct. In this respect, non examination of PW.1's wife Latha also assumes importance. PWs.1 and 7, the alleged eye- witnesses are inconsistent in many respect.
(iii) A.5 to A-7 are already known to P.W.1, in the circumstances, non- mentioning of their names in the F.I.R. tells upon the credibility of the eye- witnesses.
(iv) A false claim has been made with reference to MO.11 motor-bike in which the deceased and PW.1 were stated to have travelled at the time of occurrence. This has also been exposed by the evidence of PW.1 and the Investigating Officer P.W.23.
(v) PWs.1 and 7 have recounted the overtact of each accused and the weapons used by them with minute details in a photographic manner. It is parrot- like. No reliance can be placed on their such evidence. Cited:-
(i) SELVI and another Vs. STATE OF TAMIL NADU AND ANOTHER (AIR 1981 SC.1230)
(ii) KANAGARAJ AND OTHERS Vs. STATE rep by the INSPECTOR OF POLICE, PASUVANGUDI POLICE STATION, TUTICORIN DISTRICT(2011 (1) MNW (Cr).172(DB)
(vi) In the circumstances, the delayed submission of Section 161 Cr.P.C.
Police Statement of the witnesses to the court assumes importance.
(vii) The occurrence place is doubtful and as to the occurrence place a different person has been examined.
(viii) The story of conspiracy has been enacted to implicate all the accused in this case. The evidence of PW.8, who was examined to speak about it is not clear. PW.9 had exposed the untenability of the prosecution version of conspiracy.
(ix) The Section 27 of Evidence Act recoveries are stage managed.
(x) At every stage, in lodging the FIR, in sending it to the court, in recording the statement from the witnesses and in sending them to court, there is delay showing much doubt on the credibility of the prosecution case and its witnesses.
(xi) Prosecution has not established the charges framed as against A1, A3, A5 to A7 beyond all reasonable doubts and they are entitled to be acquitted.
10. Mr.S.Ramasamy, learned counsel for A.4 also made similar submissions and argued further as under:-
(i) A-4 has no axe to grind as against the deceased and he has no motive to participate in the occurrence.
(ii) With reference to the alleged overtact of A-4 , PWs.1 and 7 give different version. The evidence of PW.16 Dr.Jainlal Prakash and Ex.P19 Accident Register clearly establishes this.
(iii) PWs.1 and 7 are artificial and unnatural and also against ordinary course of human conduct.
(iv) It is quite unsafe to act upon their testimony
(v) None of the charges framed as against A-4 has been proved. He is entitled to be acquitted.
11. Mr.K.S.Durai Pandian, learned Additional Public Prosecutor submitted that PWs.1,3,4,5 and 8 have clearly spoken about the illegal intimacy between A.1's wife and the deceased and that enraged A-1, so a conspiracy to kill him was hatched. That has been clearly spoken to by PWs.8 and 9 and in pursuance of that, on the occurrence day, the accused have waylaid the deceased and PW.1 and indiscriminately cut Murugan to death. PW.1 the injured eye-witness had narrow escape. These aspects were spoken to by the ocular witnesses PWs.1 and 7. Besides this, there are seizure of weapons used in the commission of the offence. Prosecution has established its case against all the accused beyond all reasonable doubts. There is nothing to disturb the findings recorded by the trial court nor dilute the rigour of the sentences imposed upon them.
12. We have given our anxious consideration to the submissions of either counsel, perused the evidence on record and the findings recorded by the trial Court.
13. Pandiammal and Murugan belong to Mathanapatti in Dindigul District. There were rumour that they were long time lovers. Later, Pandiammal was married to her uncle's son Ganesan (A-1); Murugan was married to PW.3 Amutha. He resided in PW.3's village Kapiliapatti.
14. On 16.07.2004, near Chinnakulam Kanmoi, Murugan was found dead with several cut injuries. He died of homicidal violence.
15. According to the prosecution, when Pandiammal frequented the village, the old contact between her and Murugan got renewed; Pandiammal's husband (A-1) warned him; but Murugan exceeded his limit. Thus, in the house of PW.8 Revathi, a conspiracy was hatched to kill Murugan and in pursuance of that, on 16.07.2004, A-1, his brothers, Manimaran(A-2, who died during trial), Murugan(A-
3), Pandiammal's brother Pandi (A-6), their close relatives Kumar @ Thambi (A-
4) and Sakthivel (A-7) and their friend Balan @ Balaguru(A-5) have killed Murugan and his close relative PW.1 Ganesan had providential escape.
16. Ex.P1 complaint has been given by PW.1 to PW.22 Muthukrishnan, Sub- Inspector of Police, at the Government District Head Quarters Hospital, Dindigul. Based on that F.I.R. was registered. In the complaint, P.W.1 stated about the intimacy between Pandiammal and Murugan. It is stated that on 15.07.2004 at about 6.30 p.m., when Murugan and PW.1 came in MO.11 motor-bike, they were waylaid by the accused and they cut Murugan and P.W.1 was assaulted by A-4. It is also stated that the entire occurrence was witnessed by PWs.1 and 7.
17. One day prior to the occurrence, a conspiracy to kill the deceased was alleged to have been hatched in the house of PW.8. In this respect, P.Ws.8 and 9 have been examined.
18. The offence of criminal conspiracy is defined in Section 120-A IPC and it is punishable under Section 120-B IPC.
19. In STATE Vs. NALINI (1999 SCC 9 Cri) 691), popularly known as Rajiv Gandhi Assassination case, the offence of Criminal conspiracy has been explained as under:-
"When men enter into an agreement for an unlawful end, they become ad hoc agents for one another and have made a partnership in crime"
20. P.W.8 is wife of one Pandi. She is residing in Vedapatti. Her evidence is that one day, at about 4 or 5 p.m., A-1, his brothers, their relatives and A-4 came to her house, ate and left. Her evidence does not show that in her house, a conspiracy was hatched to kill Murugan. Prosecution has not treated her hostile. Her statement under Section 161 Cr.P.C. has been recorded by PW.23 on 17.07.2004 and was sent to the court only on 04.02.2005 along with the Final Report. Her evidence does not advance the prosecution case of conspiracy.
21. PW.9 Thangaraj is residing in Thadikombu. He is a chance witness. His evidence is that on 14.08.2004, at about 5.30 p.m., he came to Vedapatti to purchase flower and visited P.W.8's house, then the accused were discussing about the affair between Murugan and Pandiammal, they have decided to murder him, P.W.9 advised them not to take any wrong decision and the matter can be solved through the elders. Thereafter, the accused have left the place and on 16.07.2004, P.W.9 came to know that the seven accused have killed Murugan.
22. It is the evidence of P.W.9 that on that day, in her house, P.W.8's husband Pandi was also present and in his presence the accused have discussed their plan to kill Murugan. But, Pandi was not examined. No explanation for his non examination came from the prosecution. It tells upon the prosecution case of conspiracy. PW.9 knows the deceased for the past 15 years. Yet, he did not alert Murugan or his family members or his relatives before hand about the diabolical plan of the accused to kill him. But, after hearing their conspiratorial talk, P.W.9 had simply left to his house. His such conduct is quite unnatural and strange. P.W.23 Inspector Sivagnanam recorded his statement under section 161 Cr.P.C. on 17.08.2004. However, he sent it to the nearby court only on 14.02.2005 along with the Final Report. There is no explanation from the prosecution as to this unreasonable delay. Thus, it had strengthened the submissions of the learned counsel for the appellants that the prosecution idea of conspiracy is an after thought. In the circumstances, we cannot place reliance on the evidence of P.W.9. Thus, the criminal conspiracy propounded by the prosecution is not established.
23. P.W.1 has been examined as an ocular witness to the occurrence. He is brother-in-law of the deceased. He belongs to East Kapiliapatti. He was assisting the deceased in his finance business, had close link with the deceased. He is all in all for him.
24. P.W.1 is an eye-witness. As regards credibility of such a witness, who has close relationship with the deceased, it is relevant to note the observations of the Hon'ble Supreme Court made in ARUMUGAM Vs. State rep. by Inspector of Police, Tamil Nadu(2009 I MLJ) 48(SC), which runs as under.
"Relationship is not a factor to affect the credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such case, Court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible.
25. In the facts and circumstances, we have perused the deposition of P.W.1 with utmost care and caution.
26. P.W.1 is the author of Ex.P1 complaint. In his complaint, he had named A-4 Kumar @ Thabmi as his assailant. He had stated that in the occurrence, A-4 had assaulted him on the back of his neck with a knife. He has stated so in his evidence also. But, P.W.16 Dr.Jainlal Prakash, had found only a lacerated wound on his right super spiuendum of right scapula (see Ex.P19 Accident Register copy). It was not on his neck. PW.1 is eye-witness cum- injured. With reference to A-4 a specific overtact has been mentioned in Ex.P1 complaint and also stated in the evidence of P.W.1. But, the medical evidence is otherwise.
27. In Ex.P1 complaint, PW.1 had named A-1 to A-4. He did not name A-5 to A-7. But, in his evidence, their names and also their specific role and overtacts, at the time when the offence was committed has been stated. He had stated that A-7 was waiting in his motor-bike(M-10) for Murugan(deceased) and after the occurrence was over, A-7 alerted all the co-accused, then they have sped away from the scene of crime. Except A-5, all are related to PW.1. He had also stated that even before the occurrence he knew all of them. P.W.23 Inspector Sivagnanam stated that in his statement under Section 161 Cr.P.C., P.W.1 did not mention the names of A-5 to A-7 nor their overtacts and also the utterance of A-7 after the occurrence was over. So, for the first time, in the court, in his evidence, P.W.1 had implicated them.
28. At this juncture it is relevant to note the observations of the Hon'ble Supreme Court made in JASPAL SINGH, DEPUTY SUPERINTENDENT OF POLICE Vs. STATE OF PUNJAB {(2012) 1 SCC (Cri) 1)} which runs as under.
"44. In Rudrappa Ramappa Jainpur V. State of Karnataka, this Court considered the issue at length and held that in case the witness does not involve a particular accused in a crime at the time of recording his statement under Section 161 Cr.P.C., and names him first in his deposition in the Court, the accused becomes entitled to benefit of doubt. A similar view has been reiterated in STATE V. SAIT {(2008) 15 SCC 440}"
29. According to PW.1, the occurrence was on 15.07.2004, at about 6.30 p.m., in Chinnakulam Kanmoi. On the one side, there is Kapiliapatti, where the deceased's wife P.W.3 Amutha is residing. There, they are having lot of relatives. P.W.1 himself is residing nearby. On the other side, there is Vadamadurai, where Murugan's mother Thangammal (P.W.4) and his sister Pounthai (P.W.5) are residing. There also Murugan has lot of relatives. PWs.3 to 5, so also P.W.1 are closely related to the deceased. P.W.1 had only simple injury. In such circumstances, PW.1 would normally go either to Kapiliapatti or to Vadamadurai and reveal the occurrence to the relatives. Yet, after travelling 5 Kms., and spending about three hours, PW.1 went to RVS Nagar and met his relative PW.2 Mathan and stated to have revealed him the entire occurrence, then, both went to Government District Headquarters Hospital, Dindigul and there PW.1 was stated to have given Ex.P1 statement to PW.22 Muthukrishnan Sub- Inspector of Police. In the facts and circumstances, P.W.1's such conduct is quite unnatural and strange.
30. In Ex.P1 complaint and in the evidence of P.W.1, it is stated that at the time of occurrence, the deceased had driven M.O.11 Hero Honda bike and P.W.1 was his pillion-rider. In Ex.P1, it is stated that M.O.11 bike belong to the deceased. P.W.3 Amutha also stated so. However, PW.23, Inspector Sivagnanam stated that M.O.11 bike belong to one Thirumurugan and he also got it from the court on 16.12.2004. In his cross examination, P.W.1 admits that M.O.11 does not belong to Murugan and it belong to some other person. As per the prosecution version, as stated in Ex.P1 complaint and in the evidence of P.W.1, M.O.11 bike also has a role. As per the prosecution, on the occurrence day, the deceased and PW.1 were alleged to have travelled in MO.11 bike and came to the occurrence place. Thus, a particular aspect stated in Ex.P1 is totally incorrect.
31. P.W.7 Ravi is the other eye-witness. He having witnessed the occurrence also has been mentioned in Ex.P1 complaint. Evidence of P.W.7 is that on the occurrence day, near the occurrence place, the deceased and P.W.1 have crossed him in MO.11 motor-bike, thereafter, they were intercepted and the accused have assaulted them and the whole occurrence was witnessed by him inch by inch.
32. P.W.7 is a long standing friend of PW.1. P.W.7 is a chance witness. In his evidence, P.W.7 gives a difference version as to the overtact attributed as against A-4. He had specifically mentioned the names of A1 to A4, but did not mention the names of other accused. After witnessing such a gory incident, PW.7 had simply left to his house and was carrying on his routine work till the police enquired him on 17.07.2004. P.W.7 is already known to PW.1. PW.1 also mention PW.7's name, his father's name, address in Ex.P1 complaint. But, P.W.23 did not examine him till 17.07.2004. No explanation for this also came from the prosecution.
33. P.W.1 was examined by the Investigating Officer on 16.07.2004. Between Dindigul Taluk Police Station and the Court of Judicial Magistrate No.I, Dindigul, the distance is less than 1 km., But, Section 161 Cr.P.C. statement of the main key-witness had reached the court only on 19.07.2004. The statement of PW.7 was recorded on 17.07.2004. But, it was sent to the court only on 14.02.2005 along with the Final Report.
34. Right from the moment FIR was registered under Section 154 Cr.P.C. the documents recovered, the case-properties seized and statement of witnesses recorded under Section 161 Cr.P.C. must reach the concerned Judicial Magistrate's Court with least delay. If there is any delay it has to be satisfactorily explained. The idea behind this is to prevent embesslement of true version as to the occurrence and false implication of innocent persons. Because, every delay in submitting these documents to the court will give much scope and chance for interpolation, story telling and any unreasonable and unexplained delay on this account will affect the credibility and the quality of the evidence of prosecution witnesses, more particularly eye-witnesses and key- witnesses in a case. So as to show the genuineness of the prosecution case these police statements should not be kept in the police case-diary without they being immediately submitted to the court.
35. The occurrence was at about 6.30 p.m. It was at a lonely place. P.W.3 stated that there was complete darkness there. PW.23 stated that at the place, he had to use a petromas light. Thus, in the circumstances, then it would be very difficult for one to view the entire occurrence clearly. P.Ws.1 and 7 were also examined in the court long after the occurrence. However, in his evidence, P.W.1 had elaborately stated the overtact of each accused. In the trial Court, when the bill-hooks and the knives were shown to P.W.1, he identified the weapon that was used by each accused to assault the deceased and him. He furnished those details for all the seven accused. Such is also the evidence of the other eye-witness PW.7
36. In the facts and circumstances, considering the occurrence time and the occurrence place stated and the situation then prevailed, it would be highly improbable for PWs.1 and 7 to see each and every minute details of the overtact and retain them in their memory for so long time and repeat them in the Court. It is highly artificial.
37. At this juncture, it is relevant to refer to the decision of the Hon'ble Apex Court in SELVI V. STATE OF TAMILNADU (AIR 1981 SC 1230), wherein the Hon'ble Apex Court has observed as under:-
"3.......Another feature of the case which makes us doubt the credibility of the witnesses is the photographic and somewhat dramatic account which they gave of the incident with minute details of the attack on each of the victims. According to the account of the witnesses it was as if each of the victims of the attack came upon the stage one after the other to be attacked by different accused in succession, each victim and his assailant being followed by the next victim and the next assailant. Surely the account of the witnesses is too dramatic and sounds obviously invented to allow each witness to give evidence of the entire attack. But the witnesses, themselves admit in cross-examination that they were all attacked simultaneously. If so, it was impossible for each of them to have noticed the attack on everyone else."
38. PWs.1 and 7 simply gives a photographic and dramatic account of the entire occurrence from the start to the finish with full particulars with reference to each accused. It is parrot-like. In the facts and circumstances, it is quite impossible and it exhibits their complete artificiality in their evidence.
39. In a criminal case, place of occurrence/scene of crime also has to be established. In Ex.P1 complaint, a particular occurrence place has been mentioned. The occurrence was in one Palanisamy's land situate in Chinnakulam Kanmoi. It is also the evidence of PW.1. But, P.W.1 told P.W.16 that the occurrence had taken place in Kolathur. PW.23 admits that Kolathur is 2 kms away from Chinnakulam Kanmoi. As to the ownership of the occurrence place, totally an unconnected person P.W.6 Andivel has been examined. Thus, there is great force in the submission of the learned counsel for the appellants that the place of occurrence has not been established.
40. The complaint was stated to have been given to PW.22 on 16.07.2004 at about 11.30 p.m., at the Government District Head Quarters Hospital, Dindigul and PW.22 came back to the Dindigul Taluk Police Station and at about 12.30 a.m., registered the case.
41. The occurrence time mentioned in the FIR is about 6.30.p.m., It is the evidence of PW.4 Thangammal, mother of the deceased that at about 10 p.m., she and her daughter Pounthai (P.W.5) visited the scene place and seen the dead body. Murugan's wife P.W.3 Amutha had stated that she came there at about 9 p.m., The evidence of PWs.4 and 5 is to the effect that at about 10 p.m., P.W.3 also arrived there.
42. At the Government District Head Quarters Hospital, Dindigul, P.W.1 was treated by PW.16 Dr.Jainlal Prakash, he issued him Ex.P19 Accident Register, it is mentioned therein that the occurrence was at about 10 p.m., P.W.16 also stated that this time was stated to him by PW.1 himself.
43. It is the evidence of PW.1 that he met his close relative PW.2 Mathan in RVS Nagar, he told him the entire occurrence, who took him to the Government District Headquarters Hospital, Dindigul and he was beside him. But, in Ex.P19 Accident Register, it is stated that PW.1 was brought by his wife Latha. She is residing in East Kapiliapatti. It is also on the side of the occurrence place. So, Latha should have come from Kapiliapatti and accompanied P.W.1 to the hospital. Naturally, PW.1 would have revealed her the occurrence time and other details connected with the occurrence. But, Latha has not been examined. On the contrary, P.W.2 has been examined. In the circumstances, non examination of Latha assumes importance. However, there was no explanation as to this from the prosecution.
44. According to P.W.22, Sub-Inspector of Police, Dindigul Taluk Police Station, on 15.07.2004, at about 11.30 p.m., he received message from the said hospital about the admission of P.W.1, thereafter, he visited the hospital, recorded Ex.P1 statement from PW.1 and at about 12.30 a.m., at the said police station, he had registered the FIR., and at about 1 a.m., he had despatched the FIR through Head Constable PW.20 Mathiazhagan, who handed over it to the nearby Judicial Magistrate No.1, Dindigul at about 4 a.m.
45. No written hospital intimation was produced. In the cross examination, P.W.22 had stated that it was a telephonic message. But, he could not give the details about it. In the FIR, there is no mentioning of the receipt of the hospital intimation. In the police station, there is no record to show that any such intimation was received. P.W.23 Inspector Sivagnanam in his cross-examination admit that no such intimation was received from the Hospital. As between Dindigul Taluk Police Station and the Court of Judicial Magistrate No.1, Dindigul, the distance is less than 1 km. No proper explanation for all the above aspects relating to the registration of FIR also came from the prosecution.
46. The defence version is that the earliest version as to the real occurrence was some thing, but that has been suppressed and the FIR is fabricated. In such circumstances, in view of the inconsistent version as to the occurrence time and the lodging of FIR goes to show that the FIR is not free from doubt. It is shrouded in mystery.
47. Though FIR is not a substantive piece of evidence, document, it is an important document, which sets the criminal law in motion, it suppose to contain true version of the prosecution case. It contains very many basic details such as occurrence time, manner and details of commission of the offence and about the assailants. The prosecution case is built based on the FIR. It must be free from doubt; otherwise, it will shake the very credibility of the prosecution case and also the evidence of prosecution witnesses. In the facts and circumstances, we are convinced that the real occurrence time and the earliest report by PW.1 has been suppressed.
48. At this juncture, it is relevant to note certain observations of the Hon'ble Apex Court made in ISHWAR SINGH VS. STATE OF U.P [AIR 1976 SC 2423], which runs as under:-
" 5. Mr.Frank Anthony appearing for appellant Ishwar Singh submitted that in affirming the Judgment of the trial Court, the High Court also overlooked certain important aspects of the case that the Sessions Judge had failed to consider. He pointed out that the FIR which is stated to have been lodged at 9.05 a.m., On February 14, 1973 was sent out from the Police Station the next day, February,15; the time when it was despatched is not stated, but it appears from the record that the Magistrate received it on the morning of February,16. The Court of the Magistrate was nearby, which makes it difficult to understand why the report was sent to him about two days after its stated hour of receipt at the police Station. Section 157 of the Code of Criminal Procedure, 1898 as well as of 1973 both require the first information report to be sent 'forthwith' to the Magistrate competent to take cognizance of the offence. No explanation is offered for this extraordinary delay in sending the report to the Magistrate. This is a circumstance which provides a legitimate basis for suspecting, as Mr.Anthony suggested, that the First Information Report was recorded much later than the stated date and hour affording sufficient time to the prosecution to introduce improvements and embellishments and set up a distorted versions of the occurrence."
49. In RAJEEVAN V. STATE OF KERALA [2003 (3) SCC 355], the Hon'ble Apex Court observed as under:-
"6. The Trial Court noticed that there were many weak spots in the prosecution case such as, the delay in lodging the First Information Statement. The Spot of incident is only 100 metres from the Police Station. But the FIR was lodged in the Police Station only at 7.40 a.m. on the next day; that though FIR was filed on 29.12.1987 in the morning, it was sent to the Magistrate only at 5.40 p.m. on 30.12.1987; that the Sub Inspector (PW.28) did not register the crime on the basis of information collected by him immediately after the incident; that Ex.P30 is the counterfoil file of the FIR and between the entries relating to Crimes Nos.5 and 7, certain blank sheets were found; that this circumstance was not satisfactorily explained by the police officer concerned during examination. The Trial Court is of the view that this was done to fill up details regarding the instant case subsequently; that Ex.P1, First Information statement given by P.W.1 also seemed to have been subsequently written on a blank signed paper; that this inference was drawn due to the cramped handwriting in the paper towards the end portion, just above the signature though there was adequate space in the next page.
7. Based on these factors the FIR was found to be a concocted document and delay in lodging the FIR with the Magistrate also influenced the Trial Court in holding that innocent persons were being implicated as a result of political vendetta or for any other reasons as there was enough time for manipulation and the manner in which record was maintained gave rise to grave suspicious regarding the same."
50. In DILWAR SINGH v. STATE OF DELHI [2007 (6) Supreme Court 153], the Hon'ble Apex Court has held as under:-
"8. In the Criminal trial one of the cardinal principles for the Court is to look for plausible explanation for the delay in lodging the report. Delay some times affords opportunity to the complainant to make deliberation upon the complaint and to make embellishment or even make fabrications. Delay defeats the chance of the unsoiled and untarnished version of the case to be presented before the Court at the earliest instance. That is why if there is delay in either coming before the police or before the Court, the Courts always view the allegations with suspicion and look for satisfactory explanation. If no such satisfaction is formed, the delay is treated as fatal to the prosecution case."
51. It is relevant here to refer to the decision of the Hon'ble Apex Court in MARUDANAL AUGUSTI v. STATE OF KERALA [1980 SCC (Cri) 985] wherein it was held as under:-
"The High Court seems to have overlooked the fact that the entire fabric of the prosecution case would collapse if the FIR is held to be fabricated or brought into existence long after the occurrence and any number of witnesses could be added without there being anything to check the authenticity of their evidence."
52. Prosecution relies on recovery of certain vehicles, weapons, blood-stained clothes based on the confessional statement of certain accused. Actually, it pressed into service certain Section 27 Evidence Act recoveries.
53. No amount of confession made to police is admissible to prove an offence. However, to some extent, a relaxation to this Rule has been made in Section 27 of the Indian Evidence Act,1872. Under Section 27 of the Act, so much of information leading to the recovery of a material fact alone is admissible. Non-culpatory portion in the confession of an accused alone is admissible.
54. The scope and ambit of Section 27 were illuminatingly stated long ago by the Judicial Committee of the Privy Council in PULUKURI KOTAYYA V. KING EMPEROR (AIR 1947 PC 67). It runs as under:-
".... It is fallacious to treat the 'fact discovered' within the section as equivalent to the object produced, the fact discovered within the Section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and knowledge of the accused as to this, and the informations given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that " I will produce a knife concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added 'with which I stabbed A', these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant"
55. Recently, in MUSTKEEM ALIAS SIRAJUDDEN vs. STATE OF RAJASTHAN [(2011) 3 SCC (Cri) 473], with reference to Section 27 of the Indian Evidence Act, Hon'ble Apex Court observed as under:-
"25. With regard to Section 27 of the Act, what is important is discovery of the materials object at the disclosure of the accused but such disclosure alone would not automatically lead to the conclusion that the offence was also committed by the accused. In fact, thereafter, burden lies on the prosecution to establish a close link between discovery of the materials object and its use in the commission of the offence. What is admissible under Section 27 of the Act is the information leading to discovery and not any opinion formed on it by the prosecution."
56. In VARUN CHAUDHARY vs. STATE OF RAJASTHAN [(2011) 12 SCC 545], Hon'ble Apex Court held that if the recovery memos were prepared at the Police Station itself then the same would lose their sanctity.
57. It is not all the statements connected with the production or finding of property, which are admissible; those only which lead immediately to the discovery of property, and so far as they do lead to such discovery alone are admissible. What is admissible under Section 27 of the Evidence Act is ex- culpatory/non-culpatory/non-incriminating part in the confessional statement of the accused. Inculpatory/incriminating part of the confessional statement is totally inadmissible under Section 27 of the Evidence Act.
58. In this case, the learned Additional Sessions Judge failed to draw the said distinction. He has admitted in evidence several culpatory part of the confessional statement of the accused also. It is the duty of the learned Additional Sessions Judge to dissect the evidence regarding the confession and to divide the sentence into its component parts and only admit that part which led to the discovery of the particular fact, viz., the hidden property.
59. In the circumstances, we shall proceed to see the ex-culpatory part of the confessional statements stated to have been given by the accused to the Investigation Officer (PW.23).
60. Certain Material Objects connected with the case were stated to have been seized by PW.23 Inspector Sivagnanam based on the disclosure statement of the accused.
61. MO.5 knife and MO.12 blood-stained shirt were recovered on the basis of Ex.P2 confessional statement of A-4 on 19.07.2004 in the presence of P.W.10 Devendran and Selvaraj. A-4 was stated to have been arrested on 19.07.2004 at about 10 a.m., at the Thanneerpandal bus-stop on the Dindigul- Karur road. P.W.1 belongs to Kapiliapatti, he knows A-4, he knows that Murugan of his village was murdered and he also knows that A4 is involved in it. However, PW.10 states that on that day A-4 was just standing at one corner of the bus stop and he was standing in another corner. There is no proper scientific proof for the blood stains in MOs.5 and 12 also.
62. On 21.07.2004, at about 6.30 a.m., near Saravana Hotel bus- stop in Dindigul, A-1, A-3 and A-5 were stated to have been arrested by P.W.23 in the presence of PW.11 Balasubrmani, Village Assistant and Kasthuri Rangan, V.A.O, and their confessional statements Exs.P4 to P6 were recorded at the police station and based on the information contained therein, it is stated that at the behest of the said accused, MOs.4,6 and 8 bill-hooks, knives and Mos.13 and 14 blood stained shirts were stated to have been recovered. In his cross-examination, P.W.11 admits that he had seen the accused at the Police station for the first time. They were stated to have been arrested at a busy bus-stop where considerable number of people used to gather. It is quite strange that no other witness had witnessed their arrest and also the recoveries except the chosen witnesses of the Investigation Officer.
63. On 03.08.2004, P.W.23, obtained police custody of A-6 from Judicial Magistrate No-I, Dindigul and A.6 gave Ex.P10 confessional statement to PW.23, in the presence of P.W.12 Muthusamy, VAO and his Assistant Muniyand and in pursuance of that, A-6 produced MO-7 bill-hook and MO-10 motor-bike and they were seized by P.W.23 under Ex.P11 mahazar. In his cross examination, P.W.23 is not able to furnish the correct details of the place from which they were recovered. No superior Officer's written proof to show that the said witnesses were deputed to witness the arrest and recovery.
64. On 04.08.2004, at about 6 a.m., from his house, in Kumaran Thirunagar, P.W.23 is stated to have arrested A-7 and he gave him Ex.P12 confessional statement, in the presence of P.W.13 Akkarval and Palani and in pursuance of that, P.W.23 had seized M.O.9 Scooter under Ex.P13 mahazar. In this respect the evidence of P.W.23 is very vague. It is also the evidence of PW.23 that on seeing him, A-7 did not took to his heels, he simply stood there to enable P.W.23 to arrest him, record his disclosure statement and effect the recovery. It is not known for what special reason P.W.23 has chosen P.W.13 as a witness to witness the arrest and recovery.
65. In the facts and circumstances of this case, the recording of confessional statement from the accused and the recovery of weapons based on their information appears to be classic comics to be told to children, and, when especially the very FIR and the credibility of the eye-witnesses are doubted the Section 27 of Evidence Act recoveries pressed into service are required to be brushed aside.
66. Thus, a threadbare analysis of the prosecution evidence in proper perspective discloses very many inherent infirmities in the prosecution case. The very FIR based upon which the prosecution case is built up itself is not free from doubt. The eye-witnesses PWs.1 and 7 are artificial in their evidence. There are lot of inconsistencies in their evidence as to many vital aspects in the prosecution case and in the court they have repeated the prosecution case just parrot- like. It is quite unsafe to act upon their such testimony. The criminal conspiracy stated to have been hatched to kill the deceased has not been established. Section 27 Evidence Act recoveries are just like story telling. At every stage of the case, in lodging the FIR, in sending it to the court, in recording the statement of the witnesses including of the eye-witnesses under Section 161 Cr.P.C. and sending them to the court there is unexplained delay. They go to show that the prosecution case is doubtful and the witnesses are cooked up. In the circumstances, it is quite unsafe to visit the accused with penal consequences. Thus, the prosecution has not established its case beyond all reasonable doubts. In this perspective of the matter, the findings and sentences of the trial Court are required to be unseated.
67. In the result,
(i) These two Criminal Appeals are allowed.
(ii) The conviction recorded in S.C.No.7 of 2010 and the sentences imposed upon the appellants on 22.11.2010 by the learned Additional Sessions Judge, (Fast Track Court), Dindigul are set aside.
(iii) The Appellants are acquitted of all the charges.
(iv) Appellant No.2 in Criminal Appeal (MD) No.496 of 2010 shall be released from jail forthwith, if he is no longer required for any other case/proceedings.
(v) Consequently, M.P.(M.D) No.2 of 2011 is closed.
(vi) Bail bonds executed by the other appellants in Criminal Appeal (MD) No.496 of 2010 and the appellant in Criminal Appeal (MD) No.490 of 2010 shall stand cancelled.
rrg/asvm To
1. The Additional Sessions Judge, (Fast Track Court), Dindigul.
2. Through the Principal Sessions Judge, Dindigul.
3. The District Collector, Dindigul.
4. The Superintendent of Police, Dindigul District, Dindigul.
5. The Superintendent, Central Prison, Madurai.
6. The Inspector of Police, Dindigul Taluk Police Station, Dindigul.