Madras High Court
Ibrahimsha vs State Represented By on 6 February, 2019
Author: R.Subramanian
Bench: R.Subramanian, N.Sathish Kumar
Crl.A.(MD)No.103 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 09.03.2022
DELIVERED ON : 25.03.2022
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
and
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
Crl.A.(MD)No.103 of 2019
1.Ibrahimsha
2.Prakash ... Appellants 1 and 2/
Accused 1 and 3
Vs.
State Represented by:
The Inspector of Police,
Vilakkuthoon Police Station,
In Crime No.56 of 2014
Madurai District. ... Respondent / complainant.
PRAYER: Criminal Appeal filed under Section 374(2) of Cr.P.C. against
the judgment of conviction and sentence passed by the learned V Additional
District and Sessions Judge, Madurai made in S.C.No.147 of 2015 dated
06.02.2019.
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For Appellants : Mr.S.Shanmuga Velayutham
Senior Counsel for
Mr.J.Yogeswaran for A1
Mr.A.K.Alagar Samy
for Mr.M.Murugesan for A2
For Respondent : Mr.S.Ravi,
Additional Public Prosecutor.
JUDGMENT
R.SUBRAMANIAN, J.
AND N.SATHISH KUMAR, J.
This appeal has been filed by the appellants/ accused Nos.1 and 3 as against the conviction and sentence, dated 06.02.2019, made in S.C.No.147 of 2015, by the learned V Additional District and Sessions Judge, Madurai.
2. The appellants/A1 and A3 stood convicted and sentenced to undergo imprisonment as detailed hereunder:
Conviction U/s. Sentence of imprisonment Fine amount A-1 302 r/w 34 IPC To undergo life To pay a fine of Rs.
and imprisonment 5,000/-, in default, to
A3 undergo simple
imprisonment for two
months.
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A-1 506(ii) IPC To undergo Rigorous -
and imprisonment for one
A3 year
(Both the sentences were directed to run concurrently.)
3. The brief facts of the prosecution is as follows:
(i) Accused 1 and 3 are friends. The deceased along with A1 and other accused murdered one Kalidas in the year 2005. In that case, A1 and one Anees alone were convicted and sentenced to life imprisonment and in that case, the deceased Mannarmydheen was acquitted and hence, both are inimical. When the matter stood thus, the deceased assaulted the nephew of A1, for which the deceased was arrested and released on bail. The above incident also aggravated the strain in the relationship. A2 was arrested in connection with the murder case of one Paramakudi Murugan. He was under the impression that the deceased in this case was an instrumental for his arrest by the police. Therefore, A2 has also animosity against the deceased. Due to such animosity, on 21.01.2014, at about 11.00 a.m., when the deceased went to feed his goats, which were kept near the shop of P.W. 3, A1 attacked the deceased with knife on the head and stomach. A3 caught hold the deceased and A2 also caused several cut injuries, which was 3/30 https://www.mhc.tn.gov.in/judis Crl.A.(MD)No.103 of 2019 witnessed by P.W.1 to P.W.3 and P.W.16. When P.W.1 and others made an attempt to prevent such attack, the accused threatened them with deadly weapons and thereafter, left the place. With the help of P.W.9, the deceased was immediately taken to hospital in an Auto and P.W.1, P.W.2 and P.W.9 followed the Auto in a Motorcycle. The Doctor declared the deceased dead.
The above incident of hacking by A1 and A2 and its facilitation by A3 who held the deceased was witnessed by P.W.2, P.W.3 and P.W.16. After the Medical Officer informed that the deceased had already died, P.W.1 went to the police station and lodged Ex.P1-compliant.
(ii) P.W.3 is running a Tea shop in the place of occurrence and on the date of occurrence, A1 and A3 came there and A3 caught hold of the deceased and the accused have caused injuries. Immediately, P.W.3 informed the incident to P.W.20 one Fiaz. P.W.20 also rushed to the spot. P.W.5 has also seen that the accused were fighting with the deceased in the place of occurrence. P.W.6 also rushed to the spot and immediately, called the ambulance. As the arrival of the ambulance was delayed, they took the deceased in an Auto.
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(iii) P.W.7 was working in M.R.Transport and in his presence, hard disc of the CCTV camera was seized by the police under M.O.6. P.W.9- Masthan Kani took the deceased to the hospital. P.W.10 also rushed to the spot and took the deceased in an Auto and went to the hospital. P.W.11 is a Traffic Constable and in his evidence, he has stated that on hearing a news that a person lying with cut injuries, he went to the place of occurrence and informed the same to the control room. P.W.16 witnessed the occurrence and according to him when he and P.W.2 went to Vignesh Store for recharging mobile phone, P.W.1 was present near the Vignesh Store. At that time, in the opposite side, A1 and A2 caused cut injuries while A3 held the deceased in front of P.W.3's shop.
(iv) P.W.25-the Inspector of Police, after receiving the Ex.P1- complaint, registered a case in Crime No.56 of 2014 for the offences under Sections 302 and 506(ii) IPC under Ex.P19-FIR, went to the place of occurrence, prepared observation Mahazar under Ex.P3, drew a rough sketch under Ex.P.21 and has seized the material objects from the place of occurrence and also collected Hard Discs of CCTV Camera under M.O.6 5/30 https://www.mhc.tn.gov.in/judis Crl.A.(MD)No.103 of 2019 and M.O.7. He has also conducted inquest over the dead body of the deceased in the hospital on 21.01.2014 from 13.00 hours to 15.00 hours and prepared inquest report under Ex.P20. He has also examined the accused after taking them to police custody and recorded their confession and seized the bill hook from A1 on 31.01.2014. Similarly seized the material objects M.O.1 and M.O.2 from A2 and A3. After collecting the material objects, he has also sent requisition to the Court to send hard disc to forensic examination.
(v) P.W.22-Medical Officer conducted autopsy over the dead body and found the following injuries:
“1.An oblique cut injury measuring 5 cm x 1 cm x brain deep noted on right occipital region.
On dissection: the wound found cutting the underlying skull bone measuring 4 cm x 1 cm x through and through cutting the underlying dura and brain measuring 3 cm x 1 cm x 1 cm.
2.An oblique cut injury measuring 4 cm x 1 cm x brain deep noted on right occipital region 2 cm away from injury No. 1. On dissection: the wound found cutting the underlying skull bone measuring 3 cm x 1 cm x through and through and cutting the underlying dura and brain measuring 2 cm x 1 cm x 1 cm. 6/30
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3.An oblique cut injury measuring 7 cm x 1 cm x brain deep noted on right parieto occipital region.
On dissection: the wound found cutting the underlying skull bone measuring 6 cm x 1 cm x through and through and cutting the underlying dura and brain measuring 5 cm x 1 cm x 1 cm.
4.An Oblique cut injury measuring 6 cm x 1 cm x brain deep noted on left parietal region.
On dissection: the wound found cutting the underlying skull bone measuring 5 cm x 1 cm x through and through and cutting the underlying dura and brain measuring 4 cm x 1 cm x 1 cm.
5.An oblique cut injury measuring 6 cm x 1 cm x brain deep noted on left parietal region 2 cm away from Injury No.4. On dissection: the wound found cutting the underlying skull bone measuring 5 cm x 1 cm x through and through and cutting the underlying dura and brain measuring 4 cm x 1 cm x 1 cm.
6.An oblique cut injury measuring 8 cm x 1 cm x brain deep noted on left parietal region 3 cm away from Injury No.5. On dissection: the wound found cutting the underlying skull none measuring 7 cm x 1 cm x through and through and cutting the underlying dura and measuring 6 cm x 1 cm x 1 cm.
7.An oblique stab injury measuring 4 cm x 1 cm x cavity deep noted on left side of chest, 5 cm below the left axilla. On dissection: the wound passes obliquely downwards and backwards piercing the underlying muscles, vessels, nerves in the 7th intercostals space, piercing the underlying pleura and lower lobe of left lung measuring 3 cm x 1 cm x 1 cm and ends as a point. Left pleural cavity contains 200ml of blood with 7/30 https://www.mhc.tn.gov.in/judis Crl.A.(MD)No.103 of 2019 clots, right pleural cavity empty.
8.An oblique stab injury measuring 5 cm x 1 cm x cavity deep noted on front of middle of abdomen 6 cm above the umbilicus through which loops of intestines found protruding out. On dissection: the wound passes obliquely downwards and backwards piercing the underlying muscles, vessels, nerves and entering into peritoneal cavity. Peritonial cavity contains 500ml of fluid blood with clots.
9.An oblique cut injury measuring 6 cm x 0.5 cm x muscle deep noted on right palm.
10.An oblique cut injury measuring 4 cm x 1 cm x bone deep noted on palmar aspect of distal phalanx of left index finger.
11.An oblique cut injury measuring 6 cm x 1 cm x 1 cm noted on mid occipital region.
12.The following abrasions noted on the body:
- 4 cm x 2 cm on left knee.
- 3 cm x 1 cm on right side hip.
- 3 cm x 1 cm on back of left side of abdomen.
- 4 cm x 1 cm on top of left shoulder.
- 6 cm x 2 cm on top of right shoulder.
- 7 cm x 2 cm on right upper arm.
- 3 cm x 2 cm on right forearm.” He issued Ex.P17-Post-mortem certificate and opining that the deceased would appear have died of shock and hemorrhage due to external injuries 8/30 https://www.mhc.tn.gov.in/judis Crl.A.(MD)No.103 of 2019 Nos.1 to 8 and its corresponding internal injuries 4 to 6 hours prior to autopsy.
(vi) P.W.24 is the Scientific Officer of the Forensic Science Laboratory, Chennai and according to her, the hard disc produced for examination could not be accessed and she has given a report in this regard and the same was marked as Ex.P.18.
(vii) On the side of the defence D.W.1-Inspector of Police was examined in her evidence, she has stated that several cases pending against the deceased in various police stations. The History Sheet of the deceased was marked as Ex.D.1
(viii) The prosecution, in order to bring home the guilt of the accused examined as many as 26 witnesses as P.W.1 to P.W.26, marked 24 documents as Ex.P1 to P24 and 14 material objects as M.O.1 to M.O.14.
On the side of the defence one witness was examined as D.W.1 and one document was marked as Ex.D1.
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(ix) After analyzing the oral and documentary evidence, the trial Court has found the accused guilty and accordingly, convicted and sentenced the accused as stated supra. Aggrieved over the said conviction and sentence, the appellants have come up with this appeal.
4. The learned counsel appearing for both the appellants submitted that A2 died and therefore, the charges against him were abated. The learned Additional Public Prosecutor has not disputed the same.
5. The learned counsel appearing for the first appellant/A1 submitted that the case of the prosecution is highly doubtful. P.W.1 and other eyewitnesses are highly interested witnesses. FIR has been lodged by P.W.1 with the delay of more than 1 hour that leads to an inference that the same came into existence after due deliberation. It is his further contention that in the FIR, the description of the accused has not been properly made, only the names of A1 and A2 alone has been mentioned and the name of A3 is not found place in the FIR. Further, the motive spoken by P.W.1 also not stated in the FIR. The FIR also does not mention about the presence of the 10/30 https://www.mhc.tn.gov.in/judis Crl.A.(MD)No.103 of 2019 other eyewitnesses viz., P.W.1, P.W.3 and P.W.16. Therefore, the evidence of the other eyewitness, who allegedly seen the occurrence are highly doubtful and they have been planted as eyewitnesses at a later point of time. It is his further contention that FIR reached to the Court at 2.00 p.m. and according to the Investigating Officer, all the eyewitnesses were examined at evening and his further contention that the evidences also indicate that even prior to Ex.P1, the Traffic Constable was present in the place of occurrence. Therefore, Ex.P1 is not admissible in evidence and hit by Section 162 of Cr.P.C.
6. It is his further contention that there are contradictions in the evidence of the eyewitnesses which makes the prosecution case unreliable. The evidence of P.W.11-Traffic Constable is also proved the fact that when he visited the place of occurrence no other witnesses was present in the place of occurrence. Therefore, the presence of eyewitnesses is highly doubtful. P.W.16 presence is also highly doubtful in the place of occurrence. It is his further contention that the evidence of P.W.1 shows that at the time of lodging the compliant, P.W.20- a Practising Advocate was present that itself proves the fact that FIR is a result of deliberation. It 11/30 https://www.mhc.tn.gov.in/judis Crl.A.(MD)No.103 of 2019 is his further contention that the conduct of the eyewitnesses viz., P.W.2 and others not to inform the occurrence also makes highly doubtful.
7. It is the further contention of the learned counsel appearing for the first appellant that though the trial Court has relied upon the CCTV footage, the same is not an admissible evidence and no certificate was appended. Further the copy of the above document is also not furnished to the accused. Therefore, the trial Court relying upon the CCTV footage is not proper in law and the same has no evidentiary value. Hence, he submitted that M.O. 13 and M.O.14, the photographs of CCTV footage relied upon by the trial Court cannot be given any importance. It is his further contention that though the hard disc was seized, P.W.24, has clearly given an evidence that hard disc could not accessed and therefore, mere seizure of the hard disc will not help the prosecution in any manner. Hence, it is the contention of the learned counsel appearing for the first appellant that even the deceased being the history-sheeter which has been established and recorded, the accused has been unnecessarily implicated. Hence, prayed for benefit of doubt. In support of his submissions, he has relied upon the following judgments:
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(i) Gurusamy Naidu alias Chinnasami Naidu Vs. V.Villis Gurusioami Naidu reported in AIR 1951 Madras - 812;
(ii) Koona Ramakrishna Reddy and Ors Vs. State of A.P reported in 2008 Criminal Law Journal 2918;
(iii) Thulia Kali Vs. The State of TN reported in 1972 CRI.L.J.1296.
(iv) Ashok Debbarma Alia Achak Debbarma Vs. State of Tripura reported in (2014) 4 SCC 747;
(v) Sunil Kumar and other Vs. State of M.P. reported in 1997 CRI.L.J.1183;
(vi) Marudanal Augusti Vs. State of Kerala reported in 1980 CRI.L.J.446;
(vii) Mangu Singh Vs. Dharmendra and Another reported in 2016 CRI.L.J.785;
(viii) Maruti Rama Naik Vs. State of Maharashtra reported in 2003(10) SCC 670;
(ix) Vijaybhai Bhanabhai Patel Vs. Navnitbhai Nathubhai Patel and others reported in (2004) 10 SCC 583;
(x) Ganesh Bhavan Patel and another Vs. State of Maharashtra reported in 1979 CRI.L.J.51;
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(xi) Kulesh Mondal Vs. State of West Bengal reported in (2007) 8 SCC 578;
(xii) P.Gopalkrishnan alias Dileep Vs State of Kerala and another reported in (2020) 9 SCC 161; and
(xiii) Arjun Panditrao Khotkar Vs. Kailash Kushanrao Gorantyal and others reported in (2020) 7 SCC.
8. The learned counsel appearing for the second appellant/A3 would submit that it is highly impossible for the so called eyewitness viz., P.W.1, P.W.2 and P.W.16 to have seen the occurrence as they were standing on the other side of the road, because, there were many obstacles and vehicles were parked obstructing the view. Therefore, it is his contention that P.W.1 and others could not have been an eyewitnesses and hence, the version of the eyewitnesses is not believable.
9. The learned Additional Public Prosecutor appearing for the respondent would submit that merely because the appellants had several criminal cases against them, the appellants cannot be absolved. The eyewitnesses' version clearly proves the complicity of the accused with the 14/30 https://www.mhc.tn.gov.in/judis Crl.A.(MD)No.103 of 2019 crime, which took place in a busy area in the city, causing panic among the public. P.W.1, P.W.2, P.W.3 and P.W.6 are eyewitnesses and their evidence clearly established the complicity of the accused. P.W.3 is an independent witnesses, who is running a tea shop. The occurrence took place in front of his tea shop and therefore, his evidence is very natural and reliable.
10. It is the further contention of the learned Additional Public Prosecutor that by the evidences of the eyewitnesses, the prosecution has fully established the guilt of the accused beyond all reasonable doubt. P.W.5 has also seen that the accused A1 to A3 fighting with the deceased at the relevant point of time. P.W.1, P.W.2 and P.W.16 also seen the occurrence from the opposite direction i.e., other side platform of the road, which is below 100 feet and the Accident Register Copy also clearly substantiates the presence of P.W.1 in the place of occurrence. P.W.1, being the brother of the deceased, with other eyewitnesses took the body of the deceased to the hospital and thereafter lodged the complaint immediately. Therefore, it is his contention that merely because some contradictions found in the statement of the witnesses, such contradictions will not affect the prosecution case in any manner. Inconsistencies and 15/30 https://www.mhc.tn.gov.in/judis Crl.A.(MD)No.103 of 2019 contradictions are bound to appear in the statement of witnesses, particularly, in a criminal trial.
11. Further it is also submitted by the learned Additional Public Prosecutor that the best evidence in the form of scientific evidence is available in this regard, but unfortunately the Investigating Officer though seized the primary evidence in the form of hard disc of the CCTV camera, nothing could be downloaded from the hard disc due to non-availability of the software in the Forensic Department. In any event, it is the contention of the learned Additional Public Prosecutor that M.O.13 is a copy of the CCTV footage which was taken during the investigation. Though those documents were reliable at the relevant point of time, now in view of the three Judges Bench of the Hon'ble Apex Court in Arjun Panditrao Khotkar Vs. Kailash Kushanrao Gorantyal and others reported in (2020) 7 SCC 1, the prosecution cannot now rely upon M.O.13 in the absence of certificate under Section 65 of the Evidence Act, 1872. However, it is his contention that eyewitnesses relied upon by the prosecution has clinchingly established the complicity of the accused with the crime. Hence, he prays for dismissal of the appeal.
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12. We have given our anxious consideration to the entire materials available on record, and also the rival contentions made by the respective counsel.
13. The law was set in motion by Ex.P1. As rightly pointed out by the learned counsel for the appellants that except the names of A1 and A2, the name of A3 was not found in the FIR, however, it is clearly stated that he could identify A3. P.W.1, in his evidence, has stated that when he went to the opposite side of the place of occurrence, P.W.2, P.W.3 and others were already there to recharge the mobile phone. While he was discussing with them, in the opposite side, A1 to A3 came and A1 and A2 caused cut injuries and A3 caught hold the deceased in front of P.W.3's shop. When they came to other side to prevent the attack, they were threatened by the accused with deadly weapons and thereafter, the accused ran away. P.W.6 and P.W.9 took the body of the deceased to the hospital. P.W.2, in his evidence, has stated that when he came to re-charge the mobile in the place of occurrence, at that time P.W.9 and P.W.1 was also there and the deceased was feeding his goat, which were normally tied in front of P.W.3's shop and 17/30 https://www.mhc.tn.gov.in/judis Crl.A.(MD)No.103 of 2019 all the accused came and A1 and A2 caused cut injuries and A3 caught hold the deceased.
14. P.W.3 is running a Tea Shop in the name of 'Sri Vellai Vinayagar'. In front of his tea shop, the deceased was done to death in the broad day light. The evidence of P.W.3 makes it clear that while he was in the shop, the accused came and when he was preparing the Tea, on hearing the sound from the deceased, he saw that A3 caught hold the deceased and the other accused viz, A1 and A2 caused cut injuries. He informed the same to P.W. 20 and P.W.20 also immediately rushed to the spot. P.W.5, in his evidence, stated when he was standing in front of the Vignesh store along with P.W.2 and P.W.1, at the time, the accused quarreled with the deceased and caused sever cut injuries and thereafter, they all ran away from the place of occurrence. Immediately, with the help of P.W.9, the deceased was taken to the hospital. The Accident Register Copy Ex.P.23 filed by the prosecution shows the presence of P.W.1. All the eyewitness particularly P.W.1 and P.W.16 clearly stated in their evidence that the accused caused several cut injuries and also threatened the witnesses. Therefore, they had no opportunity to prevent such brutal attack. When the evidence of P.W.3 18/30 https://www.mhc.tn.gov.in/judis Crl.A.(MD)No.103 of 2019 seen, it is natural and does not even show any artificiality. P.W.3 has no axe to grind against the accused and his evidence indicates that he is running a Tea shop more than 30 years and he has also aware of the names of all the accused and the deceased. The fact that the deceased was feeding his goats, which are normally tied in front of P.W.3's shop has been spoken by all the witnesses and the investigating Officer. Therefore, P.W.3 identifying all the accused in his substantial evidence is normal and it cannot be doubted at all.
15. It is also to be noted that the evidences of the eyewitnesses clearly show that because of the threat by the accused with deadly weapons, they could not prevent the occurrence. Such evidence also cannot be ignored all together. When the persons execute such a barbaric act with deadly weapons, one cannot expect that others to go near them to prevent the occurrence whoever it may be. The human instinct at this stage would be to protect themselves. Therefore, merely because the witnesses had not made an attempt to prevent the attack at the relevant point of time, it will not make any difference. The motive for crime also clearly spoken by P.W.1. Suffering an earlier conviction and pendency of cases is not disputed by the accused.
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16. It is to be noted that much emphasis was made by the defence side that immediately after the occurrence, the Traffic Constable came there and therefore, the present FIR cannot be true one. It is relevant to note that the occurrence place is a busy locality and in the near by place, the Traffic Constable was present. Immediately, after the occurrence, he rushed to the spot and also he appears to have informed the same to the control room. Therefore, in such a situation, it is normal for any Traffic Constable or Police Constable, who present in the vicinity to rush to the spot. Therefore, mere presence of the Traffic Constable, who was in the near by place at the relevant of point of time, it cannot be concluded that Ex.P1 is an after thought. The evidence of the witnesses clearly shows that they first brought the deceased's body to the hospital, where the Doctor declared him dead and thereafter, Ex.P1 came to be filed. The occurrence took place around 11.00 a.m. and the evidence of the witnesses particularly P.W.1's evidence also shows that as the arrival of the ambulance was delayed, they went to the hospital immediately by engaging an auto, thereafter FIR came to be filed at 12.30 p.m. Therefore, at this stage, P.W.1 went to the hospital with the deceased and thereafter, went to the police station and gave the complaint. This is quite normal and it cannot be doubted. Hence, the contention of the 20/30 https://www.mhc.tn.gov.in/judis Crl.A.(MD)No.103 of 2019 learned counsel for the appellants that as the police visited the spot, the present FIR would not be treated as FIR has no basis. Such arguments have some force only when there is some materials to show that Investigating Officer has already visited the spot before FIR being filed and made some investigation then it can be safely concluded that any statement in the form of FIR recorded thereafter would be hit by under Section 162 Cr.P.C. Therefore, merely because the Traffic Constable was present, who seen the deceased and reported to the control room, it cannot be said that the entire FIR is a result of fabrication.
17. It is the next submission of the learned counsel appearing for the appellants that at the time of filing the FIR, P.W.20, who is a Lawyer was present. It is relevant to note that P.W.3 in his evidence has clearly stated that immediately after witnessing the said occurrence, he has informed his Lawyer, who is none other than P.W.20. P.W.20 has also came there. P.W. 20 in his evidence has stated that after receipt of the information from P.W. 3, he has instructed P.W.6 to go to the place of occurrence. Thereafter, P.W.6 told P.W.20 to come to the hospital and when P.W.20 went to the hospital, the deceased was pronounced died. Therefore, merely because he 21/30 https://www.mhc.tn.gov.in/judis Crl.A.(MD)No.103 of 2019 visited the hospital after knowing the death of the deceased, it cannot be said that Ex.P1 is a result of fabrication. All the eyewitnesses identified the accused in their substantive evidence. Therefore, merely because the description of the accused is not mentioned in the FIR, it cannot be said that the entire case is false. FIR need not contain every minute detail of the occurrence. Therefore, we are of the view that such a contention has no relevance.
18. The evidence of the Medical Officer and the postmortem report clearly show the severity of the injuries. Though the trial Court has also relied upon M.O.13-CCTV footage and took it as an evidence, we are of the view that the trail Court has committed an error in marking the CCTV footage as M.O.13. It is relevant to note that all electronic records fall within the definition of the documentary evidence by virtue of the amendment to the Information Technology Act 21 of 2000. Therefore, the trial Court ought to have exhibited M.O.13 as document instead of Material Objects. Be that as it may, the trial Court in fact played the CD and also relied upon it based on the judgment of this Court reported in 2016-1 L.W. (Crl) 145. It is relevant to note that the judgment relied upon by the trial 22/30 https://www.mhc.tn.gov.in/judis Crl.A.(MD)No.103 of 2019 Court also considered by the Apex Court in Arjun Panditrao Khotkar Vs. Kailash Kushanrao Gorantyal and others reported in (2020) 7 SCC 1. Though the Apex court in the above judgment has held that so long as the hearing in the trial is not yet over, the requisite certificate can be directed to be produced by the learned trial Judge at any stage, so that information contained in electronic record form can then be admitted and relied upon in evidence, the learned trial Judge has not made any attempt to get the certificate to make the CCTV footage a legal evidence despite the best available evidence. However, CD marked as M.O.13. It is also to be noted that the trial Court has also failed to adhere the procedure in this regard. A copy of the document sought to be relied upon by the trial Court never part of the copies under Section 207 Cr.P.C. Therefore, CD marked as M.O.13 is not an admissible evidence in view of the bar contained in Section 65-B of the Indian Evidence Act. Further the copies also not furnished to the accused. Therefore, we kept aside M.O.13 and M.O.14 for consideration. However, we have analyzed only the other materials particularly eyewitnesses' evidence.
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19. The motive spoken by P.W.1 is also not seriously disputed. Further, the evidence of P.W.1, P.W.2, P.W.3, P.W.5 and P.W.16 have clinchingly established the complicity of the accused with the crime. All the accused were identified by the witnesses in the Court. In such view of the matter, merely because some inconsistencies found in each of the witnesses will not affect the prosecution version. When different persons witnessed the occurrence, each one's reaction and observation to the occurrence will be different to the other. Therefore, in all criminal trials, the Court cannot except same set of evidence from all the eyewitnesses. The evidence is always based on the each witnesses' reactions and observations of the occurrence. In such a scenario, normally there will be some discrepancies and some inconsistencies, the same cannot be given much importance.
20. Further, it is also stated that P.W.1, P.W.2 and P.W.16 could not have been seen the occurrence from the opposite platform. It is relevant to note that it is the specific evidence of P.W.1, P.W.2 and P.W.16 that they have seen the occurrence on hearing the sound. Therefore, merely because they were on the other side of the platform, it cannot be said that they would 24/30 https://www.mhc.tn.gov.in/judis Crl.A.(MD)No.103 of 2019 not have seen the occurrence as it is with in visible distance. It is the one more submission of the learned counsel appearing for the appellants that since the vehicles were parked and there were obstructions from the parked vehicle in front of P.W.3's shop, the eyewitness would not have been seen the occurrence. Such contention also cannot be countenanced and we cannot presume such submissions. When the incident took place and three of the assailants causing injuries, it is natural for others to come to the place of occurrence. Therefore, such contention also cannot have any relevance.
21. P.W.3 is a Tea Shop owner, his evidence appears to be very normal and there was no motive whatsoever for false implication of the accused. His evidence is corroborated by the evidence of P.W.5, who has also seen the accused fighting with the deceased. The material objects seized by the Investigating Officer did not contain any human blood. Though the material objects did not contain any incriminating evidence, that will not have any effect, as eyewitnesses' version clearly established the crime.
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22. Though several judgments have been relied upon by the learned counsel appearing for the first appellant, considering the judgments are based on the different sets of facts, they cannot be applied as a precedent mechanically. As far as the criminal trail is concerned, it has to be decided on the facts of the case. In this regard, it is useful to have a reference to the judgment of the Constitution Bench of Hon'ble Apex Court in Willie (William) Slaney Vs. The State of Madhya Pradesh reported in AIR 1956 SC 116, wherein paragraph 44, the Constitution Bench of the Hon'ble Apex court has held as follows:
'44. In adjudging the question of prejudice the fact that the absence of a charge, or a substantial mistake in it, is a serious lacuna will naturally operate to the benefit of the accused and if there is any reasonable and substantial doubt about whether he was, or was reasonably likely to have been, misled in the circumstances of any particular case, he is as much entitled to the benefit of it here as elsewhere; but if, on a careful consideration of all the facts, prejudice, or a reasonable and substantial likelihood of it, is not disclosed the conviction must stand; also it will always be material to consider whether objection to the nature of the charge, or a total want of one, was taken at an early stage. If it was not, and particularly where the accused is defended by counsel (Atta Mohammad v. King- Emperor ) it may in a given case be proper to conclude that the 26/30 https://www.mhc.tn.gov.in/judis Crl.A.(MD)No.103 of 2019 accused was satisfied and knew just what he was being tried for and knew what was being alleged against him and wanted no further particulars, provided it is always borne in mind that “no serious defect in the mode of conducting a criminal trial can be justified or cured by the consent of the advocate of the accused” (Abdul Rahman v. King-Emperor). But these are matters of fact which will be special to each different case and no conclusion on these questions of fact in any one case can ever be regarded as a precedent or a guide for a conclusion of fact in another, because the facts can never be alike in any two cases “however” alike they may seem. There is no such thing as a judicial precedent on facts though counsel, and even Judges, are sometimes prone to argue and to act as if there were.”
23. In such view of the matter, we are of the view that the conviction rendered by the trail Court against the appellants does not require any interference. Accordingly this Criminal Appeal is dismissed and the conviction and sentence passed by the learned V Additional District and Sessions Judge, Madurai, dated 06.02.2019, made in S.C.No.147 of 2015, against the appellants are confirmed.
24. The respondent police is directed to secure the second appellant/A3 viz., Prakash, S/o.Chellamuthu, 40, Ismailpuram 6th Street, 27/30 https://www.mhc.tn.gov.in/judis Crl.A.(MD)No.103 of 2019 Munichalai Road, Madurai – 625 009, Madurai District to custody, to undergo the remaining period of sentence. The period of sentence already undergone by the accused is ordered to be set off under Section 428 of the Code of Criminal Procedure. Bail bond executed by the second appellant, if any, shall stand cancelled. The trial Court is directed to preserve M.O.13 and M.O.14 as documents till the disposal of any appeal that may be filed by these appellants against this judgment.
(R.S.M., J.) (N.S.K., J.)
25.03.2022
Index : Yes
Internet : Yes
vsm
Note : In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may
be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate/litigant concerned.
28/30 https://www.mhc.tn.gov.in/judis Crl.A.(MD)No.103 of 2019 To
1.The V Additional District and Sessions Judge, V Additional District and Sessions Court, Madurai.
2.The Inspector of Police, Vilakkuthoon Police Station, Madurai District.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
29/30 https://www.mhc.tn.gov.in/judis Crl.A.(MD)No.103 of 2019 R.SUBRAMANIAN, J.
AND N.SATHISH KUMAR, J vsm Judgment in Crl.A.(MD)No.103 of 2019 25.03.2022 30/30 https://www.mhc.tn.gov.in/judis