Madras High Court
Balaji vs The State Of Tamil Nadu on 9 March, 2016
Author: M.Jaichandren
Bench: M.Jaichandren
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 09.03.2016 CORAM THE HON'BLE MR.JUSTICE M.JAICHANDREN AND THE HON'BLE MR.JUSTICE S.NAGAMUTHU CRIMINAL APPEAL Nos. 893, 894 and 897 of 2012 Balaji ...Appellant in Crl.A.No.893/2012 Santhosh @ Santhosh Kumar ...Appellant in Crl.A.No.894/2012 Murthy ...Appellant in Crl.A.No.897/2012 Vs. The State of Tamil Nadu rep. by the Inspector of Police P.P.6 Kodungaiyur Police Station Chennai-118. .. Respondent in all the three appeals These Criminal Appeals are preferred under Section 374 Cr.P.C against the judgment of conviction and sentence passed by the learned XVII Additional Sessions Judge, Chennai, made in S.C.No.61 of 2012, dated 01.10.2012. For Appellant : Mr.Raja Ravivarma in Crl.A.No.893/2012 For Appellant : Mr.M.Sathish Kumar in Crl.A.No.894/2012 For Appellant : Mr.R.Sathyamurthy in Crl.A.No.897/2012 For Respondent : Mr.M.Maharaja in all the three Additional Public Prosecutor Appeals * * * J U D G M E N T
(The judgment of the Court was delivered by S.NAGAMUTHU, J.) The appellants are the accused Nos.1 to 3 in S.C. No.61 of 2012 on the file of the learned XVII Additional Sessions Judge, Chennai. One Dinesh @ Dinesh Kumar was the 4th accused in the case. The Trial Court had framed as many as three charges against the accused Nos.1 to 4. The 1st charge was against all the four accused under Section 341 IPC; the second charge was under Section 302 IPC against all the four accused; and the third charge was under Section 506 (ii) IPC (3 counts) against all the four accused. The accused Nos.1 to 4 denied the same. By judgment, dated 01.10.2012, the Trial Court acquitted the 4th accused, from all the charges levelled against him and acquitted the accused Nos.1 to 3 from the charge under Section 341 IPC. However, the Trial Court convicted the appellants/accused Nos.1 to 3 for the offences under Sections 302 and 506 (ii) IPC (3 counts). For the offence under Section 302 IPC, the Trial Court sentenced the appellants/accused Nos.1 to 3 to undergo imprisonment for life and to pay a fine of Rs.3,000/-, in default, to undergo simple imprisonment for three months and for the offence under Section 506 (ii) IPC (3 counts), the Trial Court sentenced them to undergo rigorous imprisonment for one year for each count. The Trial Court directed the sentences to run concurrently. Challenging the said judgment of conviction and sentence dated 01.10.2012, the accused Nos.1 to 3 are before this Court with these appeals.
2. The case of the prosecution in brief is as follows :-
(i) The deceased in this case was one Munusamy. He had a criminal case registered against him on the file of the Kodungaiyur Police Station. In that case, the deceased was arrested and later on, granted bail, on condition that he should report before the Kodungaiyur Police Station at 10.30 a.m. every day. On 01.03.2009, the deceased had gone to Kodungaiyur Police Station, as usual, at 10.30 a.m. But, he did not return immediately. P.W.1-Muthulakshmi is the sister of the deceased; P.W.2-Srinivasan is the uncle of the deceased; P.W.3-Kumaravel is the brother of P.W.1; P.W.4-Shankar is the husband of P.W.1; and P.W.5-Meenatchi is the mother of P.W.1 as well as the deceased. P.W.5 was residing at the house of P.W.1. Since, the deceased had not returned home till 1.00 p.m., P.Ws.1 and 5 were worried. While so, by around 1.00 p.m., the deceased spoke to P.W.1 over her cell phone and informed her that he was in Nehru Nagar in the company of these four accused. He further informed that he was just whiling away his time by talking to these accused. P.W.1, therefore, did not further worry about his safety. The deceased also assured to come immediately.
(ii) Since, even after that, till 3.00 p.m., the deceased did not return, P.Ws.1 to 4 went in search of the deceased. It is alleged that when they reached Thirukumaran Street, within the police limits of Kodungaiyur Police Station, they found all the four accused simultaneously mounting attack on the deceased on the street itself. The 1st accused, with a knife, cut on the head of the deceased; the 2nd accused, with a knife, cut on the middle of his head; the 3rd accused cut the deceased, with a knife, on the middle of his head; the 4th accused and the accused Nos.3 and 4 took stones lying there and attacked the deceased on his head with stones. The deceased fell down. The 1st accused again cut him near his hip. The 3rd accused cut him on his mouth. P.Ws.1 to 4 raised alarm, on seeing the said occurrence. All the four accused brandishing the weapons, intimidated these witnesses and ran away from the scene of occurrence.
(iii) As stated above, the occurrence was at 3.00 p.m. The deceased died instantaneously. Thereafter, it is stated that P.W.1-Muthulakshmi had gone to the Kodungaiyur Police Station and made a complaint at 3.30 p.m. on 01.03.2009 i.e., within half-an-hour of the occurrence. The distance between the Police Station and the place of occurrence is hardly 1 = km (vide Ex.P.4).
(iv) P.W.10-Pattabiraman, the then Sub-Inspector of Police, on receipt of the said complaint (Ex.P.1) registered a case in Crime No.102/2009 under Sections 341, 302 and 506 (ii) IPC. In Ex.P.1-Complaint, P.W.1 had stated that the accused Nos.1 to 3 and few other known persons belonging to Nehru Nagar attacked the deceased, caused injuries and killed him. Therefore, Ex.P.4-First Information Report was registered against accused Nos.1 to 3 and some more unnamed persons belong to Nehru Nagar. P.W.10, then, forwarded Ex.P.1-Complaint and Ex.P.4-First Information Report, to the Court. The learned X Metropolitan Magistrate received the same at 7.00 a.m. on 02.03.2009 (vide endorsement made by the learned Magistrate on Ex.P.4).
(v) The investigation was taken up by P.W.13-Stephen, the then Inspector of Police of Kodungaiyur Police Station. He visited the place of occurrence at 4.00 p.m. and prepared an Observation Mahazar (Ex.P.2) and a Rough Sketch (Ex.P.12), in the presence of P.W.6-Rameshkumar and another witness. He recovered blood-stained earth (M.O.6)and sample earth (M.O.5) from the place of occurrence under a Mahazar (Ex.P.3). At his request, P.W.9-Kuppusamy took photographs of the dead body on the place of occurrence. P.W.13 conducted inquest on the dead body of the deceased at the place of occurrence between 4.30 p.m. to 6.00 p.m. and prepared Ex.P.6-Inquest Report. Then, he forwarded the dead body for post-mortem.
(vi) P.W.12-Dr.P.Santhakumar of Stanley Medical College and Hospital, conducted autopsy on the dead body of the deceased on 02.03.2009 at 1.00 p.m. He found the following injuries on the body of the deceased:-
(1) Horizontally oblique dark brown linear abrasions: (a) 12 x 0.3-0.1 cm on the lower part of right side of the back; (b) 8.5x0.2-01 cm on the lower part of outer aspect of the right side of the back: (c) 3x0.2 cm on the outer aspect of lower third of left side of the back: (d) 1.5x0.2 cm on the left lateral aspect of lower third of the back; (e) 11x0.2-0.1 cm on the outer aspect of upper third of right side of the back; (f) 15x0.5-0.2 cm on the upper part of outer aspect of right scapular region of the neck; (g) 4x0.3-0.1 cm on the inner aspect of upper third of left side of the back; (h) 7x0.2-0.1 cm on the upper third of back of right ark; (i) 5.5x0.2-0.1 cm on the middle third of back of right arm; (j) 5x0.2-0.1 cm on the upper third of right lateral aspect of the chest; (k) 6x0.2-0.1 cm on the upper third of back of the left forearm; (l) 5x0.2 cm on the inner aspect of upper part of right shoulder; (m) 5x0.2 cm on the lower part of right lateral aspect of the neck; (n) 8x3-0.1 cm on the middle part of right side of the neck.
(2) Irregular brown abrasion 6x4-2 cm on the left fronto temporal region of the scalp.
(3) Irregular brown abrasion 4x1.5-0.3 cm on the right temporal region of the scalp.
(4) Irregular brown abrasion 2.5x1-0.3 cm lower part of right temporal region of the scalp.
(5) Horizontally oblique cut wound 4x0.5-0.2x0.6-0.1 cm on the back of left ankle, 8 cm above the lower end of left heel.
(6) Horizontally oblique cut wound 6x1x1.5-0.2 cm on the back of lower third of left leg, 12.5 cm above the lower end of left heel, exposing the cut ends of the underlying proximal part of the tendo calcaneous.
(7) Horizontally oblique cut wound 4.5x1x0.7-0.2 cm on the upper part of lower third of the back of left leg, 18 cm above the lower end of left heel.
(8) Horizontally oblique cut wound 6x1x1.3-0.3 cm on the outer aspect and the back of lower third of right leg, exposing the 2x0.3x0.7 cm cut fracture on the underlying lower third of right fibula with surrounding soft tissue bruising and extravasation of blood.
(9) Horizontally oblique cut wound 2x0.5-0.4 cm on the outer aspect of right ankle.
(10)Horizontally oblique cut wound 1.3x0.3x0.2 cm on the lower third of back of right leg, 13.5 cm above the lower end of right heel.
(11)Oblique cut wound 5.2x1.3x-0.3 cm on the lower third of back of right leg, exposing the ends of the underlying lower part of the Gastronemius muscle.
(12) Horizontally oblique cut wound 2.3x0.3x0.6-0.2 cm cm on the lower third of the back with its inner end abutting the mid line of the back.
(13) Oblique cut wound 2.2x0.5x1.2-0.2 cm on the lower part of right lateral aspect of the back.
(14) Vertically oblique cut wound 7x0.6-0.1x1.8-0.2 cm on the upper third of inner aspect of right scapular region of the back.
(15) Oblique cut wound 5.2x1-0.3x2.2-0.2 cm on the upper part of the centre of the back, across the mid line of the back.
(16) Vertical cut wound 3.2x0.5x0.9-0.2 cm on the outer aspect of upper part of left scapula. On dissection: 1.8x0.1x0.2 cm cm vertical cut fracture on the underlying base of the Acromian process of the spine of the left scapula with surrounding soft tissue bruising and exxtravasation of blood.
(17) Oblique cut wound 6.8x1x1.8-0.6 cm on the back of upper part of right shoulder exposing the 2.3x0.8-0.3 cm complete cut fracture on the tip of the Acromian process of right scapula and 1.6x1.2-0.3 cm complete cut fracture on the adjoining anterior part of outer end of right clavicle with surrounding soft tissue bruising and exxtravasation of blood.
(18)Oblique cut wound 7.2x1-0.2x1.8-0.3 cm on the front of right shoulder.
(19) Oblique cut wound 10.5x1-0.5x4-1.2 cm on the back and outter aspect of lower third of right arm.
(20) Oblique cut wound 2x0.2x0.2 cm on the upper part of right lateral aspect of the neck.
(21) Oblique cut wound 5x0.5x0.5-0.2 cm on the upper part of right lateral aspect of the neck.
(22) Oblique cut wound 8x1x3-0.5 cm on the upper part of right side of the neck and the adjoining right angle of the mandible; on dissection: 1x0.2x0.2 cm on the oblique cut fracture on the underlying right angle of mandible.
(23) Oblique cut wound 1.5x0.2x1-0.3 cm on the upper part of right side of the neck in the submandibular region.
(24) Oblique wound 1.5x0.2x0.3 cm on the right side of chin.
(25) Lacerated wound 3x0.5x0.4 cm on the right temporo occipital region of the scalp.
(26)Lacerated wound 6.6x1cm x cavity deep on the right temporo parietal region of the scalp with brown irregular abrasion 1-0.6 cm on the skin over the middle part of inner margin of the laceration.
(27)Horizontally oblique cut wound 5.2x0.3x0.9-0.2 cm on the upper part of centre of occipital region of the scalp, exposing the underlying 3x0.2x0.2-0.1cm cut fracture on the occipital bone along the plane of the external cut wound with surrounding soft tissue bruising and extravasation of blood.
(28)Vertically oblique cut wound 4x0.3x0.5-0.2 cm on the posterior part of left temporo parietal region of the scalp.
(29)Oblique cut wound 2.2x0.2x0.4-0.2 cm on the postero medial part of left parietal region of the scalp.
(30) Oblique cut wound 2x0.2x0.3 cm on the upper part of left temporal region of the scalp.
(31)Oblique cut wound 2x0.2x0.4-0.1 cm on the anterior part of upper part of left temporal region of the scalp.
(32)Oblique cut wound 2.5x0.2x0.3-0.1 cm on the upper part of right frontal region of the scalp.
(33)Oblique cut wound 3x0.3x0.4-0.1 cm on the middle third of back of right fore arm.
(34)Oblique cut wound 2.2x0.2x0.2 cm on the lower third of back of right hand.
(35)Vertically oblique cut wound 3x0.5x1.2-0.2 cm on the upper third of back of right little finger exposing the oblique complete fracture of the underlying proximal phalanx of the right little finger.
(36)Oblique cut wound 4.8x0.8x0.2x2.1-0.6 cm on the back of left elbow exposing the underlying complete cut fracture of 2.5x1.5 cm on the Olecranon process of the right ulna and 1.8x0.2x0.3 cm cut fracture on the back of the adjacent medial epicondyle of the lower end of the left Humerus, with surrounding soft tissue bruising and extravasation of blood.
(37)Oblique cut wound 4x0.5-0.2x0.6-0.1 cm on the inner aspect of back left elbow.
(38)Oblique cut wound 4.7x0.5x0.9cm-0.2 cm on the back of lower third of left forearm exposing the cut ends of the underlying extensor indicis muscle and the extensor pollicis longus, extensor digiti minimi, and extensor carpi ulnaris tendons; On dissection: 0.5x0.2x0.1 cm cut fracture on the underlying lower third of back of right ulna with surrounding soft tissue bruising and extravasation of blood.
(39)Oblique cut wound 1.8x0.3x0.2 cm on the back of lower third left forearm.
(40)Oblique cut wound 3.5x1x0.5-0.2 cm on the inner border of lower third of left fore arm, exposing the cut ends of the underlying flexor carpi ulnaris muscle and flexor digitorum profundus tendons.
(41)Lacerated wound 1x0.5x0.2 cm on the middle part of right cheek.
(42)Oblique cut wound 1.8x0.2x0.3-0.1 cm on the upper part of left side of the forehead.
(43)Horizontally cut wound 3.2x0.3x1.2-0.2 cm on the middle part of left cheek and the adjoining outer third of left side of the upper lip.
(44)Horizontally oblique cut wound 3x0.2x0.1cm on the middle part of left cheek.
(45)Horizontally oblique cut 4.0.5x0.9-0.2 cm on the Zygomatic prominence of the left cheek; On dissection: 1.2x0.2x0.3-0.1 cm cut fracture on the underlying left Zygoma with surrounding soft tissue bruising and extravasation of blood.
(46)Oblique cut wound 0.8x0.2x0.2 cm on the outer end of upper lid of the left eye.
(47)On reflection of the scalp: Dark red scalp deep diffuse bruising on the left fronto temporal and right temporo parietal regions of the scalp; 13x8-4 cm comminuted fracture on the right side of the calvarium involving the right side of the frontal, right temporal and right parietal bones; thin film of dark red subdural haemorrhage and diffuse subarachnoid haemorrhage over both the cerebral and both the cerebellar hemispheres of the brain; ventricles of the brain contained fluid blood; 3x2.3x1-0.5 cm dark red bruising on the right temporal lobe of the brain; 16cm oblique cut fracture on the posterior part of left anterior cranial fossa, pituitary fossa and the anterior part of the right side of the posterior cranial fossa; 6cm oblique fissured fracture on the floor of right middle cranial fossa.
Heart: Normal in size; C/s All Chambers empty; Valves: Normal; Coronaries: Patent; Great vessels: Normal.
Lungs: Normal in size; C/s pale.
Larynx & Trachea : Empty.
Hyoid Bone: Intact.
Stomach: Contained 90 ml of thick chymy yellowish brown partly digested food materials with fuity odour.
Mucosa: Pale.
Liver, Spleen & Kidneys: Normal in size; C/s Pale.
Intestine: Contained Yellowish brown chyme. Bladder: Empty.
Pelvis & Spinal Column: Intact. Ex.P.9 is the Post-Mortem Certificate. He opined that these injuries found on the dead body of the deceased would have been caused by weapons like, M.Os.1, 2, 7 and 8. He further opined that the deceased would appear to have died of shock and haemorrhage due to multiple injuries.
(vii) Continuing the investigation, P.W.13-Stephen examined many more witnesses including the Doctor, who conducted autopsy. On 02.03.2009, he arrested the accused Nos.1 to 3 in the presence of P.W.7-Mohan and another witness. On such arrest, the 1st accused gave a voluntary confession, in which, he disclosed the place, where he had hidden the motor-cycle. In pursuance of the same, he took P.W.13 and the witnesses to Ponnusamy Nagar and produced the T.V.S.-Suzuki motor-cycle bearing Registration No.TN-07-V-9160. P.W.13 recovered the same under a Mahazar (Ex.P.15). Then at 11.30 a.m., 1st accused produced five knives, with blood-stains. The 1st accused also produced the blood-stained clothes (M.Os. 9 to 12). P.W.13 recovered the same under a Mahazar (Ex.P.16). On returning to the Police Station, he forwarded the accused Nos.1 to 3 to Court for judicial remand and handed over the Material Objects also to the Court.
(viii) On 07.03.2009, since, P.W.13 was transferred, he handed over the Case Diary to his successor. P.W.14-Srikanth took up the case of investigation, on 07.03.2009. During the course of investigation on 15.07.2009, he arrested the 4th accused and forwarded him to the Court for judicial remand. On completing the investigation, he laid the chargesheet against all the four accused.
(ix) Based on the above materials, the Trial Court framed the charges as detailed in the paragraph No.1 of this judgment. The accused Nos.1 to 4 denied the same as false. During the trial, in order to prove the case of the prosecution, on the side of the prosecution as many as 14 witnesses were examined and 16 documents and 13 material objects were exhibited. Out of the said witnesses, P.Ws. 1 to 4 are the eye witnesses to the occurrence. They have stated that when they were going in search of the deceased, at the place of occurrence, they found all the four accused simultaneously attacking the deceased with weapons. P.W.1 has further stated about the complaint made by her at 3.30 p.m. P.W.5, the mother of the deceased, has stated that the deceased Munusamy left the house in the morning to go to the Police Station to sign at 10.30 a.m., but, he did not return. P.W.5 has further stated that, by around 1.00 p.m., the deceased spoke to P.W.1 over her cell phone and informed her that he was in Nehru Nagar in the company of all these four accused. P.Ws. 6 to 8 have turned hostile and they have not supported the case of the prosecution in any manner. P.W.9 has spoken about the photographs taken at the place of occurrence. P.W.10-Pattabiraman, the then Sub-Inspector of Police, has spoken about the registration of the case on the complaint of P.W.1 on 01.03.2009, at 3.30 p.m. P.W.11-Radhika Balachandran has spoken about the chemical analysis conducted on the material objects recovered, which revealed that there were blood-stains on the same. P.W.12-Dr.P.Santhakumar has spoken about the post-mortem conducted and his final opinion regarding the cause of death. P.Ws.13 and 14, the then Inspectors of Police, have spoken about the investigation done and the final report filed.
(x) When the accused Nos.1 to 4 were questioned under Section 313 Cr.P.C. as to the incriminating circumstances found in the evidence of prosecution witnesses, they denied the same as false. But, they have not chosen to examine any witness nor to mark any document. Their defence was a total denial. Having considered all the above, the Trial Court acquitted the 4th accused from all the charges levelled against him and convicted these appellants/accused Nos.1 to 3 for the offences under Sections 302 and 506 (ii) IPC (3 counts). Challenging the same, the appellants/accused Nos.1 to 3 are now before this Court with these appeals.
3. I have heard Mr.Raja Ravivarma, learned counsel for the appellant in Crl.A.No.893 of 2012; Mr.M.Sathish Kumar, learned counsel for the appellant in Crl.A.No.894 of 2012; Mr.R.Sathyamurthy, learned counsel for the appellant in Crl.A.No.897 of 2012; Mr.M.Maharaja, learned Additional Public Prosecutor appearing for the State; and I have also perused the records carefully.
4. The learned counsel for the appellants would submit that P.Ws. 1 to 4 would not have witnessed the occurrence at all, as their houses are no where near the place of occurrence. He would further submit that the First Information Report in this case is a doubtful document, as the same had reached the hands of the learned X Metropolitan Magistrate only at 7.00 a.m. on 02.03.2009 and the Constable, who carried the FIR, to the Court has also not been examined. The learned counsel would further add that no independent witnesses have been examined in the case. He would also submit that, though, it is stated that the deceased spoke to P.W.1 and informed her that he was in Nehru Nagar in the company of these four accused, his call details have not been collected by the police, thus, according to the learned counsel, there are lot of doubts in the case of the prosecution.
5. The learned Additional Public Prosecutor, however, opposed this appeal. He would submit that the presence of P.Ws. 1 to 4 have been duly explained. There is no reason to reject their evidence. Further, P.Ws. 1 to 4 have in a vivid fashion narrated the entire occurrence. He would further add that there is no reason to doubt the veracity of the testimony of these witnesses. He would further submit that there was some delay in forwarding the First Information Report, but, the delay has been explained by the Inspector of Police (P.W.13). Thus, on the ground of delay, the case of the prosecution cannot be doubted.
6. We have considered the rival submissions. Admittedly, the deceased Munusamy was an accused in an earlier case and he was on bail. There is no controversy before this Court that he was granted bail on condition that he should appear before the Kodungaiyur Police Station, at 10.30 a.m., every day. It is the evidence of P.W.5, mother of the deceased, that before 10.30 a.m., the deceased had gone to the Police Station to comply with the said condition. It is also in the evidence of P.Ws. 1 and 5 that the deceased did not return till 1.00 p.m., though, he used to return from the Police Station, as soon as putting his signature. Now, it is stated by P.Ws. 1 and 5 that the deceased spoke to P.W.1 at 1.00 p.m. over cell phone and informed P.W.1 that he was in Nehru Nagar in the company of these four accused. Had it been true that these four accused were inimical towards the deceased, there would have been no occasion or possibility for the deceased being in the company of these accused in a friendly manner. According to the prosecution witnesses, there was enmity between these four accused and the deceased. If that be so, the so called, telephonic information by the deceased that he was in the company of these accused at Nehru Nagar cannot be true. Further, as rightly pointed by the learned counsel for the appellants, the cell phone call details have not been collected so as to scientifically prove, whether the deceased would have been spoken to P.W.1, at around 1.00 p.m., on 01.03.2009, as it was claimed by P.Ws.1 and 5. Therefore, this part of the evidence of the prosecution is doubtful.
7. It is further stated by P.W.1 that since the deceased had not returned till 3.00 p.m., she took the help of P.Ws. 2 to 4 and all the four of them were going towards Nehru Nagar, on their way at a place known as Thirukumaran Nagar, they have found all these accused mounting attack on the deceased. It is stated that the time of occurrence was at 3.00 p.m., as seen from the First Information Report (Ex.P.4). The distance between the place of occurrence and the Police Station is hardly 1 = km. It is stated by the prosecution that P.W.1 appeared at the Police Station and made a complaint at 3.30 p.m. and the case was registered immediately. This was seriously disputed by the learned counsel appearing for the appellants by stating that the endorsement made by the learned Magistrate on the First Information Report (Ex.P.4) would go to show that the First Information Report was received by the learned Magistrate only at 7.00 a.m. on 02.03.2009, i.e., after about 16 hours delay. Of course, the said delay, if explained can be accepted and on that ground, the case of the prosecution need not be doubted. But P.W.10-Pattabiraman, the then Sub-Inspector of Police, who registered the case has not stated about the mode of forwarding the Ex.P.4-First Information Report and Ex.P1-Complaint, to the Court. Assuming that it was carried by a Constable, he has not been examined to explain the said delay, P.W.13-Stephen, the then Inspector of Police, has made an attempt to explain the delay during cross-examination. He has stated that the Constable, who carried the First Information Report had gone to the house of the learned X Metropolitan Magistrate, on time, but, he was not able to hand over the same, since, the learned Magistrate was not at her house till the next day morning 7.00 a.m. In order to ascertian the correctness of the said statement, we went through the Case Diary. Absolutely, there is no entry any where to indicate the said fact.
8. P.W.13-Stephen, the Inspector of Police, was present before this Court during the hearing of this appeal. When we asked him, what was the foundation for him to depose in Court that the learned Magistrate was not available at her house and therefore, the First Information Report could not be handed over to the Magistrate, on time, he stated that he only heard about it. In the absence of the evidence of the Constable, who carried the First Information Report from the Police Station to the learned Magistrate and in the absence of any explanation from him, the explanation offered by P.W.13 that he only heard about it, is only a hearsay information, which cannot be accepted and admitted in evidence. Thus, absolutely, there is no explanation for such an enormous delay in forwarding the First Information Report to the Court. It is seen from the evidence of P.W.13 that on 01.03.2009, at 4.00 p.m. , the Observation Mahazar and Rough Sketch were prepared between 4.30 to 6.00 p.m. The inquest was completed and the bead body itself was taken from the place of occurrence to the hospital for post-mortem. Thus, it is crystal clear that after conducting a detailed investigation in the place of occurrence, the First Information Report had been registered very belatedly. In our considered view, the case projected by the prosecution that the First Information Report was registered at 3.30 p.m., cannot be believed at all, in the absence of any explanation to the fact that the First Information Report was received by the learned Magistrate only at 7.00 a.m. on 02.03.2009.
9. Apart from that, it is not, as though, the accused were not known to P.W.1, previously. In Ex.P.1-Complaint, P.W.1 has stated that the accused Nos.1 to 3 were assailants, besides, few more assailants, who also belonged to Nehru Nagar. Had it been true that the 4th accused was present at the place of occurrence, nothing would have prevented P.W.1 from mentioning his name also in the First Information Report. This has also not been explained by the prosecution. Thus, we are of the view that Ex.P.1-Complaint, is a doubtful document. Since, at the very inception of the prosecution case, there is doubt in the case of the prosecution, unless the evidence of the eye witnesses are so cogent and convincing, it is not possible to act upon the same. It is also to be noted that the Trial Court has disbelieved these witnesses viz., P.Ws. 1 to 4, as against the 4th accused, thus, even the Trial Court iself has only partly believed these witnesses.
10. P.Ws. 1 to 4, as we have already pointed out, are chance witnesses. We have already concluded that their presence, at the place of occurrence, is highly doubtful and therefore, it is not safe to act upon their evidence. Added to that, as we have already concluded that the First Information Report is a doubtful document. For these reasons, we are of the view that it is not safe to act upon the eye witness account of P.Ws. 1 to 4 and to sustain the conviction of these appellants. Therefore, in our considered view, the appellants/accused Nos.1 to 3 are entitled for acquittal, as the prosecution has failed to prove the case beyond reasonable doubt.
11. In the result, i.these Appeals are allowed and the conviction and sentence imposed on the appellants by the Trial Court in S.C.No.61 of 2012, dated 01.10.2012, are set aside and the appellants/accused Nos.1 to 3 are acquitted;
ii.The fine amount, if any paid, shall be refunded to them.
iii.The bail bond, if any executed by the appellants/accused Nos.1 to 3 , shall stand discharged.
(M.J.J.,) (S.N.J.,)
09.03.2016
Index : Yes
Internet : Yes
paa
M.JAICHANDREN.,J.
AND
S.NAGAMUTHU.,J.
paa
To
1.The Inspector of Police
P.P.6 Kodungaiyur Police Station
Chennai-118.
2.The XVII Additional Sessions Judge,
Chennai.
3.The Additional Public Prosecutor,
High Court, Chennai.
CRIMINAL APPEAL Nos. 893,
894 and 897 of 2012
09.03.2016