Madras High Court
Ponnupandian vs State Represented By on 11 July, 2008
Author: Prabha Sridevan
Bench: Prabha Sridevan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated: 11/07/2008 Coram The Honourable Mrs. Justice PRABHA SRIDEVAN and The Honourable Mr.Justice M.JEYAPAUL Crl.A.No. 248 of 2007 1. Ponnupandian 2. Subramanian 3. Chelladurai 4. Krishnasamy Thevar 5. Murugan 6. Periyamari 7. Chinnamari 8. Sangilipandi 9. Periyasamy ...Appellants vs State represented by Inspector of Police, Kayathar Police Station, Tuticorin District. ...Respondent Appeal against the judgment passed in S.C.No.111/2004 on the file of the Principal District Judge, Tuticorin dated 5.3.2007) !For Appellants 1 to 3 ... Mr.V.Kathirvelu For Appellants 4, 5, 7 to 9 ... Mr.M.Venkataraman, Senior Counsel for M.C.Muthusaravanan For 6th Appellant ... Mr.P.Ramasamy ^For Respondent ... Mr.V.Kasinathan, Additional Public Prosecutor :JUDGMENT
(The judgment of the Court was made by M.JEYAPAUL,J) Accused 1 to 9 were convicted for offence under Section 148 of IPC. and were sentenced to undergo rigorous imprisonment for 2 years. They were also convicted for offences under Sections 302, 302 read with 149 of IPC. and were sentenced to undergo Life Imprisonment and to pay a fine of Rs.10,000/- each with usual default sentence. 50% of the fine amount was directed to be paid as compensation to the family of Muthukrishnan and Sankara Lakshmanan, the deceased in this case.
2. That due to previous enmity, the accused 1 to 9 having formed unlawful assembly, committed murder of Muthukrishnan and Sankara Lakshmanan and attempted to screen the evidence by hiding the head portion of the dead body of Sankara Lakshmanan and thereby, they committed offences punishable under Sections 148, 302, 302 read with 149 and 201 of IPC is the case of the prosecution.
3. On the side of the prosecution as many as 27 witnesses were examined and 45 documents and 34 Material Objects were marked. On the side of the defence, one witness was examined as D.W.1 and Ex.C.1 to Ex.C.7 were marked as Court Documents.
4. The case of the prosecution, in brief, as spoken to by the witnesses examined is as follows:-
The deceased Sankara Lakshmanan and Muthukrishnan, P.W.1 Natraj Thalaivar and P.W.2 Anaincha Thalaivar are brothers. Gnana Boopathy P.W.4 is the wife of the deceased Sankara Lakshmanan.
5. Both the accused as well as the deceased hailed from Chettikuruchi Village. The first accused Ponnu Pandian was the former President of Village Panchayat. When the deceased Sankara Lakshmanan contested the election for the office of Panchayat President, Ponnu Pandian, the 1st accused asked him to withdraw his nomination, but Sankara Lakshmanan contested the election and was declared elected. He was the President of the Village Panchayat at the time of his death. There is an Amman Temple in Chettikuruchi Village. The first respect was claimed by the 1st accused. Sankara Lakshmanan also made a rival claim for the first respect. During temple festival, the devotees, who gathered at the temple declared that Sankara Lakshmanan, being the President of the Village Panchayat was entitled to the first respect. There existed an acrimony between the first accused and Sankara Lakshmanan on account of the aforesaid episodes. During temple festival, the first accused and his companions attacked Muthukrishnan and his companions and as a result of which, a case in Crime No.195/2002 for offences punishable under Sections 147, 148, 324 and 307 of IPC. was registered by Kayathar Police Station. The printed First Information Report was marked as Ex.P.38. Nataraj Thalaivar, P.W.1, Anainja Thalaivar P.W.2, Petchimuthu, P.W.3, Gnana Boopathy P.W.4 and Kombaiya P.W.5 have all spoken to about the aforesaid motive which existed between the family of the accused and the prosecution party.
6. On 19.08.2002 the deceased Sankara Lakshmanan telephoned P.W.1 and informed him to bring Muthukrishnan also along with him to the Panchayat Office at Kayathar. Accordingly, P.W.1 and Muthukrishnan went to the Panchayat Union Office at Kayathar at about 12.00 noon on 19.08.2002. They met the deceased Sankara Lakshmanan at the Kayathar Union Office. After the work was over at the office at about 2.00 p.m. on the same day, the deceased Sankara Lakshmanan and the deceased Muthukrishnan were proceeding towards south followed by P.W.1 to the bus stand. A old Ginning Factory is located over there. An Ambassador Car bearing Registration No.T.N. F 3335 came at a break neck speed from north to south and was about to dash against the deceased Sankara Lakshmanan and the deceased Muthukrishnan. The first accused Ponnu Pandian and his sons Subramanian, the 2nd accused and Chella Durai, the 3rd accused got down from the car from the front seat armed with billhooks. Krishnasamy A4, Murugan A5, Periya Mari A6 and Chinna Mari A7 alighted from the back seat armed with knives. They encircled both the deceased Sankara Lakshmanan and Muthukrishnan. By that time, T.N.69 Y 4711 M 80 Two Wheeler vehicle arrived there. Sangilipandi A8 and Periyasamy A9 got down from the two-wheeler vehicle. Both of them were armed with knives. They attacked first Sankara Lakshmanan on his neck. A2 Subramanian also attacked on his neck. When the deceased Sankara Lakshmanan attempted to ward off the attack, his right hand wrist was completely severed. A3 and A4 attacked the deceased Muthukrishnan on his neck and face indiscriminately. Muthukrishnan fell down on the ground. The 4th accused and the 5th accused attacked Muthukrishnan on his neck indiscriminately. 6th and 7th accused stabbed Sankara Lakshmanan who lay on the ground with knives indiscriminately. Sangilipandian A8 attacked Sankara Lakshmanan on his right hand saying that it was that hand which was used for writing. The 9th accused Periyasamy started cutting the head of Sankara Lakshmanan with knife. The first accused Ponnu Pandian delivered two cuts on the left leg and asked the 9th accused to get away and cut and removed the head of Sankara Lakshmanan. He having taken the head of Sankara Lakshmanan, boarded the car along with other accused A2 to A7 and went away. The 8th and 9th accused boarded the M 80 Two Wheeler vehicle and went away. P.W.1 threw stone at the car and broke the glass pane, but the car went away without minding the damage to the glass pane.
7. Petchi Muthu P.W.3 and Esaki P.W.7 also witnessed the occurrence. Both Sankara Lakshmanan and Muthukrishnan were found dead. P.W.1 and P.W.3 having decided not to stay back at the scene of occurrence, went straight to their village Chettikuruchi and informed Anainja Thalaivar P.W.2 about the occurrence. All of them came down to the Kayathar Police Station at about 07.00 p.m. on 19.08.2002. P.W.1 gave a statement regarding the occurrence to the Sub- Inspector of Police Muruganandam P.W.25, who recorded the Statement Ex.P.1 and registered a case in Crime No.245/2002 for offences under Sections 147, 148, 302 and 201 of IPC. He prepared Printed First Information Report Ex.P.38 and despatched the original to the learned Judicial Magistrate No.II, Kovilpatti and the copies thereof to the higher officials concerned.
8. Mr.Rajendran, Inspector of Police, P.W.26 attached to the Nalandiputhur Police Station was directed by the Deputy Superintendent of Police, Kovilpatti to investigate this case. Therefore, he rushed to the scene of occurrence and received a copy of the First Information Report at 08.15 p.m. on 19.08.2002. With the help of petromax light, he prepared Observation Mahazar Ex.P.2 in the presence of Karuppasamy P.W.9 and Thangapandi P.W.10. With the assistance of the Photographer P.W.23, the scene of occurrence was photographed. He also drew Rough Sketch Ex.P.39 reflecting the scene of occurrence. In the presence of Panchayatdars and witnesses, he held inquest on the headless dead body of Sankara Lakshmanan between 09.45 p.m. and 11.45 p.m. on 19.08.2002 and prepared Inquest Report Ex.P.40. The headless dead body of Sankara Lakshman was entrusted to the Constable Brite Raj with a requisition for postmortem examination. He held inquest at 02.15 a.m. on 20.08.2002 on the dead body of Muthukrishnan in the presence of Panchayatdars and other witnesses and prepared Inquest Report Ex.P.41. He entrusted the dead body of Muthukrishnan to the Constable Ganapathy with a requisition for postmortem examination.
9. On 20.08.2002 at about 2.15 a.m., the Blood Stained Earth M.O.12 and Sample Earth M.O.13 were recovered in the presence of the aforesaid witnesses P.W.9 and P.W.10 near the dead body of Sankara Lakshmanan under relevant Seizure Mahazar. Thereafter, he recovered Blood Stained Earth M.O.14 and Sample Earth M.O.15 near the dead body of Muthukrishnan under relevant Seizure Mahazar Ex.P.3 in the presence of the aforesaid witnesses. He also recovered the Broken Glass Pieces M.O.16 and a pair of Chappal M.O.20 and a Single Chappal M.O.21 under relevant Seizure Mahazar Ex.P.5 in the presence of the aforesaid witnesses. The Ambassador Car M.O.10 and Bajaj M 80 Vehicle M.O.11 were found parked near Vellai Pandi Screecher on the highways road leading to Kovilpatti. The Investigating Officer recovered those material objects. A torn Piece of Gunny Bag M.O.22, Blood Stained Rexin Pieces M.O.23 and M.O.24 respectively and a single Chappal M.O.26 were recovered from the Ambassador Car M.O.10 in the presence of the aforesaid witnesses under the relevant Seizure Mahazar Ex.P.6.
10. Finger Print Expert was summoned to find whether there was finger prints on the Car M.O.10 and Bajaj M. 80 Vehicle M.O.11. Sniffer Dog was also summoned from Tuticorin.
11. Dr.M.Mani P.W.21 received the requisition Ex.P.30 for Postmortem Examination of the headless dead body of Sankara Lakshmanan at about 10.00 a.m. on 20.08.2003 from P.W.26. He also received a requisition Ex.P.31 for Postmortem Examination on the dead body of Muthukrishnan. During the course of the postmortem examination of the dead body of headless Sankara Lakshmanan, the following external and internal injuries were found :
Injuries:
1. 8x2cm x bone deep, 6x2cm x bone deep one below the other oblique cut injuries seen on the lower part of outer aspect of left side chest. It is 24 cm, 29 cm below the .. line respectively. On dissection 8th rib found cut at site with surrounding bruising.
2. 6x2cm x bone deep, 4x2cm x bone deep oblique cut injuries seen on the extreme outer aspect of lower part of left chest. It is 22cm below the posterior axillary line, 6cm away from the injury No.1 on dissection underlying 9th rib in found cut completely and the spleen is found cut at site.
3. 4x2cm x Muscle deep horizontal cut injury seen on the back of middle of Left thigh. It is 25cm below the anterior superior iliac spine.
4. 5x1/2x1/2cm superficial oblique cut injury seen on the outer aspect of front of middle of left thigh.
5. 7x2cm x Muscle deep and 3x2cm x Muscle deep oblique cut injuries seen on the front of lower part of right arm. It is 7 cm above the right elbow joint.
6. 6x3cm x bone deep, 3x2cm x bone deep, 2x2cm bone deep stab injuries seen on the right side upper part of chest seen one below the other. It is 6cm medial to the right shoulder.
7. 18x14cm x bone deep chop cut injury seen from the lower part of upper jaw to the back of the neck. Lower jaw found intact with teeth. Head found decapitated at the level of between atlas and Injuries:
1. 8x2cm x bone deep, 6x2cm x bone deep one below the other oblique cut injuries seen on the lower part of outer aspect of left side chest. It is 24 cm, 29 cm below the .. line respectively. On dissection 8th rib found cut at site with surrounding bruising.
2. 6x2cm x bone deep, 4x2cm x bone deep oblique cut injuries seen on the extreme outer aspect of lower part of left chest. It is 22cm below the posterior axillary line, 6cm away from the injury No.1 on dissection underlying 9th rib in found cut completely and the spleen is found cut at site.
3. 4x2cm x Muscle deep horizontal cut injury seen on the back of middle of Left thigh. It is 25cm below the anterior superior iliac spine.
4. 5x1/2x1/2cm superficial oblique cut injury seen on the outer aspect of front of middle of left thigh.
5. 7x2cm x Muscle deep and 3x2cm x Muscle deep oblique cut injuries seen on the front of lower part of right arm. It is 7 cm above the right elbow joint.
6. 6x3cm x bone deep, 3x2cm x bone deep, 2x2cm bone deep stab injuries seen on the right side upper part of chest seen one below the other. It is 6cm medial to the right shoulder.
7. 18x14cm x bone deep chop cut injury seen from the lower part of upper jaw to the back of the neck. Lower jaw found intact with teeth. Head found decapitated at the level of between atlas and axis. It is 21cm above the suprasternal notch.
8. 20x14cm x bone deep chop cut injury seen from upper part of left arm seen from upper part of left arm to middle of upper part of left back. Muscles, vessels, nerves found cut at site.
9. 16x8cm x Muscle deep oblique cut injury seen on the upper part of right back.
OTHER FINDINGS: PERITONEAL & PLEURAL CAVITIES: Empty.
HEART: Normal. Right side contain a few c.c. of fluid blood.
LEFT SIDE: Empty CORONARIES: Patent.
LUNGS, LIVER, SPLEEN AND KIDNEYS: CUT SECTION PALE.
HYOID BONE: Intact.
STOMACH: Contains 50 grams of fully digested food material. No specific smell. MUCOSA: Pale.
BLADDER: Empty.
He opined in the Postmortem Certificate Ex.P.32 that the deceased Sankara Lakshmanan would appear to have died of decapitation. P.W.21 commenced the postmortem examination on the dead body of Muthukrishnan at 11.10 a.m. on 20.08.2002. He found the following external and internal injuries.
INJURIES:
1. Oblique cut injury 18x8cm x Bone deep seen from Right angle of mouth to the middle of the back of the neck. The underlying muscles, vessels, nerves, few bones and the spinal cord found cut at level between C5 & C4.
2. Oblique gaping cut injury 15x3cm x Bone deep seen from the upper part of right cheek to the back of middle of the head. Underlying muscles, vessels, nerves, lower part of external ear, upper part of jaw bone, lower part of occipital bone found cut at site.
3. Oblique gaping cut injury 8x2cm x Bone deep seen on the right cheek.
It extends from lower part of right external ear to the right side of the chin. The underlying muscle, vessels, nerves, jaw bones, facial bones, maxilla found at site.
4. Flapping cut injury 17x6cm x muscle deep seen from top of right shoulder to the outer aspect of upper part of right arm. Underlying muscles, vessels, nerves found cut at site.
5. Gaping cut injury 10x7cm x bone deep seen on the back of right elbow. Underlying muscles, vessels, nerves and lower part of humerus found cut at site.
6. Oblique gaping cut injury seen on the middle of right side of chest. It is 6cm medial to right nipple. On dissection the underlying body of the sternum on the right side is found cut at site.
7. Gaping cut injury 11x5cm x bone deep seen on the right hip. Underlying iliac crest found cut at site. It is 3cm above the anterior superior iliac spine.
8. Chop gaping cut injury 13x5 cm x bone deep. It extends from lower part of medial aspect of right forearm to the proximal phalanx of right thumb. All the four fingers except the thumb found separated. Lower part of Ulna, carpal bones. Ist metacarpal found cut at site. The cut portion of right hand brought separately with four fingers except thumb. On examination it matches with the cut portion of the intact hand anatomically. So it belongs to one and the same individual.
OTHER FINDINGS: PERITONEAL AND PLEURAL CAVITIES: Empty.
HEART: Right side contain a few c.c. of blood. Left side Empty. CORONARIES: Patent.
LUNGS, LIVER, SPLEEN AND KIDNEYS: Cut Section: Pale.
HYOID BONE: Intact.
STOMACH: Contains 20 m.l.of mucosal fluid. No specific smell.
MUCOSA: Pale. SMALL INTESTINE: Nil specific.
BLADDER: Empty. BRAIN: CUT SECTION: Pale.
He opined in the Postmortem Certificate Ex.P.34 that the deceased Muthukrishnan would appear to have died of shock and hemorrhage due to the multiple heavy cut injuries in the region of head and neck.
12. P.W.26 sent the material objects recovered in this case under Form 95 to the learned Judicial Magistrate for the purpose of sending them for chemical analysis. He stepped up his investigation for the purpose of detecting the head portion of the deceased Sankara Lakshmanan. The Sniffer Dog summoned could not detect the head portion of the deceased Sankara Lakshmanan. The Grade I Constable Brite Raj recovered Cement Colour Pants M.O.27 and Half Sleeve Shirt M.O.28, Blue Colour Underwear M.O.29 and Black Colour Leather Belt M.O.30 from the headless dead body of Sankara Lakshmanan after the postmortem examination was over and entrusted the same to P.W.26 for the purpose of investigation in this case. He also recovered Polyester Dhoti M.O.31 and Blood Stained Full Hand Shirt M.O.32 and Brown Colour Trouser M.O.33 and Yellow Shawl M.O.34 from the dead body of Muthukrishnan after the postmortem examination was over and entrusted the same to P.W.26 for the purpose of further investigation in this case.
13. P.W.26 came to know that the 2nd accused Subramanian, 3rd accused Chelladurai, 5th accused Murugan, 7th accused Chinnamari, 8th accused Sangili Pandi and the 9th accused Periyasamy surrendered before the learned Judicial Magistrate, Valliyur on 22.08.2002. On 25.08.2002, the 1st accused Ponnu Pandian, 4th accused Krishnasamy Devar and the 6th accused Periyamari surrendered before the learned Judicial Magistrate, Thiruthani. P.W.26 took police custody of A2, A3, A5, A7 and A9 on 28.08.2002 and examined them in the presence of Thanga Mariappan P.W.11 . All of them gave confession statements to the effect that they would locate the place, where the weapons and the head portion of the deceased Sankara Lakshmanan were kept. On the basis of the admissible portion of the confession statement given by those accused, P.W.1 proceeded to the garden of one Anand and recovered the head portion of the dead body of Sankara Lakshmanan under a thorny bush near a pumpset over there. He prepared Observation Mahazar in the presence of Thanga Mariappan. He also drew Rough Sketch Ex.P.44, reflecting the location of the head portion of the dead body of Sankara Lakshmanan.
14. On 29.08.2002 between 11.30 p.m. and 12.45 p.m. he held inquest on the head portion of the deceased Sankara Lakshmanan in the presence of Panchayatdars and prepared Inquest Report Ex.P.45. The head portion of the deceased Sankara Lakshmanan was entrusted to the Head Constable Subbaiya P.W.17 with the requisition for conducting the postmortem examination.
15. Dr.Mani P.W.21 having received the said requisition commenced postmortem examination at 3.30 p.m. on 29.08.2002 on the head portion of the dead body of Sankara Lakshmanan. The head portion was found in a decomposing stage. He had noted the following ante-mortem injuries on the head portion of the deceased Sankara Lakshmanan.
INJURIES:
1. An oblique cut in the Zygomatic process crossing the root of the nose 9cm. Fracture of right side upper jaw close and midline `and nasal bone found communittedly fractured. Upper jaw found obliquely cut along the alveolar margins. Both upper medial incisor, right lateral incisor, canine, premolar, 1st and 2nd molar in right upper quadrant found cut. Lower jaw found cut 4 cm below the articulating area in the right side and 1.5 cm below the articulating area in the left side.
2. Oblique cut in the right occipital region joining with posterior border of foremenmagnum in the midline 9cm in length.
3. Transversely oblique antemortem cut in the anterior aspect of C2 vertebra just below the dens 4 x 1.5cm. The lower portion along with the posterior part found attached with upper part of cervical vertebra preserved from the body in P.M.No.586/2002. The lower of the cut cervical vertebra (Upper part of C2) found along with head piece fits exactly fits exactly with the cut upper and of cervical vertebra preserved from the body concerned in P.M.No.586/2002 confirming that this head in P.M.No.617/2002 belongs to the body in P.M.No.586/2002.
4. Postmortem cut 7x4cm in the left posterior occipital region. It has flabbed the bonesinto 2 bits 4 x 3.5cm with a gap of 2x2cm which was found absent. Liquified brain matter oozing through the wound and foramenmagnum.
He opined that the deceased would appear to have died of injury No.1, 2 and 3 sustained by him. He has also expressed his opinion that the head specimen belonged to the headless body of Sankara Lakshmanan in his Postmortem Certificate Ex.P.35. P.W.26 at the instance of the aforesaid accused recovered blood stained weapons of offence about 20 feet away from the location where the head portion of the dead body was recovered. All the aforesaid accused were thereafter remanded to judicial custody and the material objects recovered also were sent with the requisition for sending them for chemical examination.
16. On 06.09.2002 at about 05.00 p.m., he took police custody of the accused 1,4 and 6. In the presence of Pandi P.W.12, those accused were separately examined and they also voluntarily gave confession statements. On the basis of the admissible portion in their confession statements, the weapons of offence alleged to have been wielded by each of them were also recovered from a thorny bush. The aforesaid accused were thereafter remanded to judicial custody. The material objects recovered at their instance were despatched to the Judicial Magistrate for sending them for chemical examination.
17. Nava Jyothi P.W.14 was the previous owner of the Ambassador Car bearing Registration No.T.N. F 3335. He has deposed that the said car was sold by him to Jaya Raj Nadar and Sons. Selvaraj P.W.15 was the Deputy Manager (Sales) attached to Jaya Raj Nadar and Sons which deals with cars. He also speaks about the purchase of the aforesaid car from P.W.14. Manoharan P.W.16 was the Treasurer of Madurai Automobile Association. He turned hostile to the case of the prosecution. Madasamy P.W.19 was serving as Head Clerk in the Court of learned Judicial Magistrate No.I, Kovilpatti. He has spoken about the requisition Ex.P.24 emanated from P.W.26 for sending the material objects for chemical examination. The learned Judicial Magistrate despatched the material objects under a Covering Letter Ex.P.25. The Chemical Report Ex.P.26 and the Serology Report pertaining to the dead body of Muthukrishnan Ex.P.27 and the Serology Report pertaining to the dead body of Sankara Lakshmanan Ex.P.28 and the Serology Report pertaining to other material objects recovered in this case were also received by the learned Judicial Magistrate No.I, Kovilpatti.
18. Mr.Arunachalam, Inspector of Police, P.W.27 having received the Case Diary from P.W.26 on 6.11.2002 examined the Photographers P.W.22 and P.W.23 and also the remaining witnesses in this case and filed final report as against all the accused for offences punishable under Sections 148, 341, 302 and 201 read with 149 (2 counts) of IPC. before the learned Judicial Magistrate on 12.12.2002.
19. The complaints sent by the accused to the learned Judicial Magistrate No.II, Kovilpatti during the course of their remand were marked as Ex.C.1 to Ex.C.7.
20. The incriminating portions found in the testimony of the witnesses examined on the side of the prosecution were put in the form of questionnaire to the accused. They have stoutly denied their role in the murder of Sankara Lakshmanan and Muthukrishnan as spoken to by the witnesses on the side of the prosecution.
21. The trial court having relied upon the ocular testimony of P.W.1, P.W.3 and P.W.7 in the background of the medical evidence and the recovery part of the case of the prosecution returned a verdict of conviction as against all the accused.
22. We heard the submissions made on either side.
23. The learned Senior Counsel Mr.Venkataraman appearing for Accused 4, 5 and 7 to 9 would submit that the genesis of the First Information Report is highly doubtful. P.W.1, P.W.3 and P.W.7 cited as ocular witnesses in this case could not have witnessed the occurrence as spoken to by them. P.W.3 categorically admitted that it was he who set the law in motion by lodging the First Information Report with the police, who descended on the scene of occurrence. The aforesaid testimony of P.W.3 is fortified by the evidence of P.W.4 and P.W.6, who would state that the police force has already descended on the scene of occurrence. Five hours delay in lodging the First Information Report has not been properly explained by the prosecution. The ownership of the car and Bajaj M 80 Vehicle were not established by the prosecution. The name of P.W.7 did not find a place in the First Information Report. If at all he witnessed the occurrence, his name would have been referred to in the First Information Report. The overt acts had been conveniently apportioned by the prosecution for the purpose of manipulating the individual role of the accused. It is highly artificial that almost all the family members of the accused party participated in the occurrence. Therefore, he would submit that the Accused 4, 5 and 7 to 9 are entitled to acquittal.
24. The learned counsel Mr.V.Kathiravan appearing for A 1 to 3 would contend that except the First Information Report Ex.P.1 all other vital documents reached the court only on 28.08.2002. It creates a doubt whether those documents would have come into existence at the time and date alleged to have been prepared by the Investigating Officer. All the statements recorded under Section 161 of Cr.P.C. except the statements of P.W.1 and P.W.2 reached the court only on 10.2.2003 along with the Charge Sheet. There is every possibility of concoction of the story of the prosecution to suit their convenience. The Investigating Officer would not have summoned the Finger Print Expert and the Sniffer Dog, if at all there had been eye witnesses to the double murder. Therefore, the presence of P.W.1 and P.W.2 at the scene of occurrence is highly doubtful. P.W.3, the wife of the deceased Sankara Lakshmanan would state that her husband had been to Tirunelveli on the fateful day. But, P.W.1 and P.W.2 deposed before the court that they received the message prior to the occurrence from the deceased Sankara Lakshmanan only from Kovilpatti. The presence of P.W.1 was not noted in the Inquest Report prepared by the Investigating Officer. The evidence available on record would indicate that the information has already reached the police station which is located just about 1.5 k.m. from the scene of occurrence. The investigation commenced by the Investigating Officer prior to the receipt of the First Information Report shakes the very foundation of the prosecution story. It is strange that P.W.1 and P.W.3, who had been to Chettikurichi Village immediately after the occurrence did not take any steps to inform the Inspector of Police P.W.27, who stationed over there. It is surprising to note that no eye witness from Kayathar was associated in this case. There is a material discrepancy as to the role of the accused, who actually severed the head of Sankara Lakshmanan. P.W.1 has categorically stated during the course of cross-examination that there was no motive existed between the prosecution party and the accused party. Quite strangely, the so called ocular witnesses have come out with the specific attack launched by each and every accused. Such an artificial version does not inspire confidence. Further, the description of the injury by P.W.1 does not tally with the Postmortem Certificate. Quite unfortunately, the time of death was not noted in the Postmortem Certificate by the Doctor, who conducted Postmortem Examination, he argued further.. The learned counsel Mr.P.Ramasamy appearing for 6th accused adopted the arguments of the learned Senior Counsel Mr.M.Venkataraman appearing for Accused 4, 5 and 7 to 9.
25. This is a case of double murder. Both the deceased are brothers of P.W.1 and P.W.2. First, we will have to test whether P.W.1, P.W.3 and P.W.7 had been present at the scene of occurrence. Petchimuthu P.W.3 and Esaki P.W.7 are independent witnesses to the occurrence. P.W.1 would depose that he went along with his deceased brother Muthukrishnan as instructed by the deceased Sankara Lakshmanan to Kayathar Panchayat Union Office. After the office work was over, both the deceased were proceeding towards south in front of him and he was trailing by 50 feet behind them. All of them had been proceeding to the Kayathar Town for the purpose of boarding a bus. It is his version that A1 to A7 got down from a car M.O.10 and A8 and A9 got down from Bajaj M 80 Vehicle M.O.11 and started attacking both the accused indiscriminately and caused their instantaneous death.
26. P.W.3 comes out with an account that when he was proceeding towards north on the main road in his TVS 50 Vehicle, the accused were coming from the opposite direction in the aforesaid Car and Bajaj M 80 Vehicle. A1 to A7 and A8 and A9 respectively got down and attacked both the deceased indiscriminately and caused their death. He has categorically stated that as he had to witness the occurrence by hiding himself, P.W.1 could not have seen him witnessing the occurrence. P.W.7 came by TVS 50 from behind the deceased and witnessed the accused attacking the deceased having got down from the vehicle and caused their death. It is his assertion that he saw P.W.1 and P.W.3 witnessing the occurrence. But, they have not seen him at the scene of occurrence.
27. We find that the evidence of P.W.1, P.W.3 and P.W.7 are quite natural. P.W.3 and P.W.7 had gone to Kayathar in connection with some odd job. P.W.1 had gone to Kayathar at the instance of the deceased Sankara Lakshmanan. P.W.1 is closely related to the deceased. Though P.W.3 and P.W.7 hailed from the same village, they are found to be independent witnesses to the occurrence. There is no reason for P.W.3 and P.W.7 to rope in falsely all the accused in the crime, graphically speaking about the role of each and every one. We find that the evidence of P.W.1, P.W.3 and P.W.7 inspires confidence of this Court.
28. That apart Subbaiya P.W.6, who was going by bicycle had noted A1 to A7 going by Car and A8 and A9 going by Bajaj M 80 Vehicle towards the scene of occurrence. He had also witnessed their return from the scene of occurrence with a damage to the glass panes of the car. P.W.6 also hails from Chettikuruchi village. He is also found to be an independent witness to the occurrence. His evidence lend corroboration to the evidence of P.W.1, P.W.3 and P.W.7. We find no reason to reject his testimony.
29. A1 to A9 having encircled both the unfortunate victims started annihilating them as per the eye-witnesses account. No wonder there is some discrepancy which is quite natural in the above facts and circumstances as regards the situs of injuries found actually on the dead bodies of these two victims. Further, a person, who is watching an occurrence can only speak to the part of the body which was aimed at with a weapon. The weapon wielded would land on the body depending upon the precision in operation exhibited by the assailant and the victims jerks and movements confronting deadly blows. Therefore, there are certain discrepancies with respect to the situs of injuries found on the dead persons. Such a discrepancy cannot be a ground to reject the ocular testimony of P.W.1, P.W.3 and P.W.7.
30. P.W.1 has deposed before the court that he took out a stone lying by the side of the road and threw it on the glass pane of the car. Though the glass pane was broken, the assailants went away without minding the damage caused to the glass panes. The act of P.W.1, who is none other than the blood brother of both the deceased would betray only his frustration and not his boldness to face the accused after the occurrence. In the above background of the situation, we will have to see whether he would have mustered courage to go over to the police station which is admittedly located about 1 . Kms. away from the scene of occurrence. It is quite relevant to refer verbatim the explanation given by P.W.1 as to why he had not proceeded straight to the Police Station to lodge a complaint. He would depose, "...four persons went and saw the mangled dead body. Both my brothers were dead. Thereafter, Petchimuthu and myself proceeded to our village taking a decision not to stay back.....Petchimuthu and myself did not intend to go over to the Police Station located close by out of fear and nervousness. Both proceeded to our village..."
It is true that P.W.1 has not chosen to go over to the Police Station which is located 1.5 Kms. away from the scene of occurrence. Admittedly, there is a delay of 5 hours in lodging the First Information Report. There is evidence to show that there is a long standing enmity between the prosecution party and the accused party. It is quite natural for P.W.1 to proceed to his village to save himself out of fear. It is imprudent to expect P.W.1, who has lost both his blood brothers to rush to the police station immediately on seeing the cold blooded murder for the purpose of lodging the complaint. There is no abnormality found in the conduct of P.W.1 to proceed to his village of course located about 8 kms. away from the scene of occurrence to confide in his brother P.W.2.
31. P.W.1 has gone along with P.W.2 to the Police Station and lodged the complaint. The complaint has been attested by P.W.2. Of course, the delay in lodging a First Information Report may result in embellishment. There is also every possibility of introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. But here is a case where there is some explanation for the delay of five hours.
32. It has been held in the authority reported in Munshi Prasad and Others V. State of Bihar, AIR 2001 Supreme Court 3031 as follows:
"14...On this score the appellants contended that delayed receipt of the FIR in the Court of the Chief Judicial Magistrate cannot but be viewed with suspicion. While it is true that Section 157 of the Code makes it obligatory on the Officer Incharge of the Police Station to send a report of the information received to a Magistrate forthwith, but that does not mean an imply to denounce and discard an otherwise positive and trustworthy evidence on record. Technicality ought not to outweigh the course of justice - if the Court is otherwise convinced and has come to a conclusion as regards the truthfulness of the prosecution case, merely delay, which can otherwise be ascribed to be reasonable, would not be itself demolish the prosecution case".
33. Firstly, we find that proper explanation is forthcoming from P.W.1. Further when ocular testimony of P.W.1, P.W.3 and P.W.7 are available on record to convince us to confirm the conviction, mere delay in launching the First Information Report cannot at all be a ground to reject the case of the prosecution.
34. The Printed First Information Report would disclose that P.W.27 had been to Chettikuruchi village in connection with bandhobust duty. There is no material to show that P.W.27 had proceeded to Chettikuruchi village immediately after the occurrence. It is not the case of P.W.1 and P.W.3 that P.W.27 was present in the village at the time, when they visited the village immediately after the occurrence. Quite probably, P.W.27 would not have reached Chettikuruchi Village by the time P.W.1 and P.W.3 had come down to the village to inform the brother of P.W.1 about the occurrence.
35. It has been held in Subhash v. State of Haryana, (2008) 2 Supreme Court Cases (Crl) 213 as follows:
"13. ...It is true that the distance between Kasandi Bridge and Police Station Gohana is 5 km but PW 8 in his evidence had narrated the sequence of events which reveals the reasons for the delay, if any, in lodging the first information report at Police Station Gohana. There is nothing unnatural on the part of PW 8 in his first going to Kasandi Village nearby the scene of occurrence and informing Jai Singh about the incident and thereafter returning to Kasandi Bridge along with Jai Singh. Having found that the deceased Raghbir Singh and the tractor were missing he along with Jai Singh went to Mandi Village to inform the father of the deceased. One does not expect PW 8 to straightaway first go to the nearest police station and lodge the first information report even without informing the near relatives of the deceased.
14. Be that as it may, it is not the case of the appellant that after occurrence of the incident some deliberations took place in order to falsely implicate the appellant in the case. No suggestion of any enmity between the appellant and PW 8 has been made. There is no reason to disbelieve the sequence of events narrated by PW 8. In such view of the matter mere delay in lodging the first information report, in the facts and circumstances of the case cannot be held to be fatal to the prosecution case."
Of course, in this case, admittedly there had been an enmity between the prosecution party and the accused party. But it is to be noted that the Honourable Supreme Court has observed that there was nothing unnatural on the part of the first informant to go over to his village to inform his relatives and come down to the police station for giving the First Information Report. At any rate, we find that the delay of 5 hours in the facts and circumstances of the case is not at all fatal to the case of the prosecution.
36. The Supreme Court in Rajeevan and another V. State of Kerala, 2003 (2) MWN (Cr.) SC 246 has observed as follows:
"6. The Trial Court noticed that there were many weak spots in the prosecution case such as, the delay in lodging First Information Statement. The spot of incident is only 100 meters from the Police Station. But the FIR was lodged in the Police Station only at 7.40 AM on the next day; that though FIR was filed on 29.12.1987 in that morning, it was sent to the Magistrate only at 5.40 PM 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.P. 30 is the counter foil file of the FIR and between the entries relating to Crime Nos.5 and 7, certain blank sheets were found; that this circumstance was not satisfactorily explained by the concerned Police Officer during examination. The Trial Court is of the view that this was done to fill up details regarding the instant case subsequently; that Ex.P. 1 First Information Statement given by PW1 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 reason as there was enough time for manipulation and the manner in which record was maintained gave rise to grave suspicion regarding the same."
That was a case, where the occurrence had unfolded on 28.12.1987 at about 7.00 p.m. The police station was located about 100 metres away from the scene of occurrence. The First Information Report had been lodged only the next day at about 07.40a.m. The Sub-Inspector of Police who collected some information immediately after the occurrence had not chosen to register the First Information Report. The materials on record would reveal that some blank sheets were found in the First Information Report Book. The entries relating to certain crime numbers were not also filled up. In the above circumstances, the Supreme Court has held that the delay of 12 hours has not been properly explained. The aforesaid observation of the Supreme Court does not apply to the facts and circumstances of this case.
37. In Jothilingam vs. State by Inspector of Police, Tirupattur Taluk Police Station, 2008 (1) C.L.T. 395, this Court has held as follows:
"15.The evidence of P.W.2 is also categorical to the effect that immediately after the occurrence, the police was informed of the occurrence by the Village Headman (Oor gounder), P.W.4 and within one hour, the police party came to the scene place and obtained the thumb impression of P.W.1. As per her evidence, if the police was informed and the thumb impression was obtained from P.W.1 within one hour, it must be around 7.00a.m., on 9.4.2006. P.W.3 has also deposed that immediately after the occurrence, the police was informed and the police reached the scene of occurrence and obtained the thumb impression of P.W.1.
16.Surprisingly, P.W.12, the Investigating Officer has disowned receipt of any such information from the Village Headman (Oor gounder) and the police visited the scene of occurrence within one hour and obtained the thumb impression from P.W.1. The above contradictory stand of P.W.12 throws a serious doubt about the truthfulness and genesis of Ex.P-1, which was recorded by him at about 2.30p.m., on 9.4.2006 in the police station.
17.The Prosecution is bound to establish the genesis or origin of the complaint beyond any reasonable doubt and if the Court entertains suspicion on the very genesis or origin of the compliant, the prosecution case must fail."
In the aforesaid case, it is found that the witness has come out with a revelation that thumb impression was obtained from him by the Sub-Inspector of Police when he visited the scene of occurrence. The Investigating Officer has disowned such a version of the first informant. Therefore, the Supreme Court has held that when a contradictory stand is taken by the witness, there is a serious doubt and the genesis of the complaint will have to be established beyond reasonable doubt.
38. In this case, of course P.W.3 would state as follows:
"The police recorded what I informed them. They read over to me. I subscribed my signature thereto. I did not see whether Nataraja Thalaivar P.W.1 and Anaija Thalaivar P.W.2 subscribed their signature to the statement he has given.
39. Referring to the aforesaid testimony of P.W.3, the learned Senior Counsel appearing for Appellants 4, 5 and 7 to 9 would submit that P.W.3 had already given the first information to the police which was recorded by the police, but the same was suppressed for reasons best known to the Investigating Officer.
40. In our considered opinion, the aforesaid version of P.W.3 does not disclose that he had given the first information to the police personnel. He had referred to only the statement he had given under Section 161 of Cr.P.C. It is to be noted that he has categorically stated in the other part of his testimony that he went along with P.W.1 and P.W.2 to the police station. It was only P.W.1, who lodged the complaint and by that time he was standing outside the police station. Firstly, the evidence of a witness cannot be analysed in a truncated fashion. Secondly, the portion of the evidence of P.W.3 culled out and projected by the learned Senior Counsel does not in anyway indicate that P.W.3 was the person, who first passed on the information about the occurrence to the police. The cumulative reading of the evidence of P.W.3 would clinchingly show that it was only P.W.1, who passed on the first information to the police.
41. This Court in Muralisamy @ Muralidharan and others v. State by Inspector of Police, Soolamangalm Police Station, Salem, (2007) 1 MLJ (Crl) 796 has observed as follows:
"14...When P.W.2 was cross examined at the instance of A.5, he had deposed as hereunder:-
My mother and my elder brother were taken to soolamangalam Police Station (the investigating police station); at 3.00a.m. in the morning, the Assistant Commissioner of Police came to the hospital; along with the Assistant Commissioner of Police my mother and my elder brother also came; the Assistant Commissioner examined me and I told him what happened; the Constable present along with the Assistant Commissioner of Police reduced in to writing what I narrated; my statement was read over to me and I found it to be correct and then signed in it; the Assistant Commissioner of Police sent away the constable asking him to register a case.
This witness has not been re-examined at all by the State nor was he treated as hostile even at that stage. Therefore we have to take the above referred to evidence also into consideration. Before stating as to what would be our inference on the above noted material, we want to go through the evidence of P.W.9. P.W.9 is also examined as an eye witness to the crime. He knows both the deceased as well as the accused. His evidence is that his house is half a furlong away from the house of Sundaravelan and he knows Sundaravelan for the past three years. Then he deposed that after the occurrence he did not go to the police station but only to his house. He told everybody in the village that Sundaravelan had been cut and he went to the house of Sundaravelan also and informed the inmates about the crime. He would admit that when he reached the house of Sundaravelan it was exactly 2.30a.m. and on hearing the news, Sundaravelan's mother and elder brother left the house stating that they are going to the crime scene. Therefore if the above referred to evidence of P.W.9 is read in the context of the evidence of P.W.2, which we have already referred to earlier, would definitely lead us to conclude that Sundaravelan's mother and elder brother would have reached the investigating police station and from there along with the Assistant Commissioner of Police they had reached the hospital by about 3.00a.m. where by examining P.W.2 a statement had been recorded. That exactly is the effect of the evidence of P.W.2. If that is so, as rightly contended by the learned Senior Counsel, there is definitely an earlier compliant given by P.W.2 to the police and the Assistant Commissioner of Police had directed the police constable to go and register that compliant. That compliant is not forthcoming. We searched in vain to find out whether there could be any material from which we could conclude that the evidence of P.W.2 is only an inadvertent error or due to ignorance of things that existed on that night. But we found none. Therefore we hold, on the materials noted above, that prior to Ex.P.1 coming into existence, a compliant had already come to be lodged with the police at 3.00 a.m. on 26.10.2000. If that is the inescapable conclusion which could be arrived at, then we have no doubt at all that Ex.P.1 cannot be the foundation for the prosecution case as projected now. When admittedly there is bitter enmity between the two groups, the Court must be in a position to find out with confidence, where lies the truth. In the face of our conclusion that prior to Ex.P.1 another compliant had already been given and Ex.P.1 is not the true version but appears to be a fabricated version, it is not possible for us to find out from the present evidence based on Ex.P.1, where lies the truth. In other words, the possibility of falsely implicating persons belonging to the opposite camp, cannot be totally ruled out."
In the aforesaid case, P.W.2 has come out with a categoric version that he gave a statement to the Assistant Commissioner of Police, who was present with a constable. He having recorded the statement, got his signature and the Assistant Commissioner of Police directed the constable to register a case. Such a statement was recorded at the hospital. That was not a case, where the said witness speaks about lodging a complaint with police by another witness. P.W.3 has categorically stated that he accompanied P.W.1 along with his brother to the police station, where P.W.1 lodged the First Information Report. By his oversight, P.W.3 would state that he subscribed his signature to the statement obtained from him. What he had meant was only the statement recorded by the police under Section 161 of Cr.P.C. In the above facts and circumstances, the above said authority does not apply to this case.
42. We have no doubt that it was only P.W.1, who has set the law in motion by giving the complaint and not P.W.3, who just accompanied him to the police station.
43. P.W.4 would depose as follows:
"Immediately on receiving the information about the death of her husband, she went to Kayathar. Thereafter, she proceeded to Chettikuruchi. When she arrived over there, she found Kayathar Police personnel..."
She had not specifically stated that she found Kayathar Police personnel at the scene of occurrence. What she meant was that she found Kayathar Police at Chettikuruchi. Therefore, the submission made by the learned Senior Counsel appearing for Appellants 4, 5 and 7 to 9 that P.W.4 had admitted that the police personnel were already present at Kayathar, when she went over there immediately on seeing the occurrence is found to be factually incorrect. Of course, P.W.6 would state that when he went to the scene of occurrence, he found police personnel and about 20 other persons at the scene of occurrence. He had not mentioned the time at which he reached the scene of occurrence to witness the dead body. When the exact time at which he had descended on the scene of occurrence is not clear, we cannot jump to a conclusion that immediately after the occurrence, he found the police personnel at the scene of occurrence. Therefore, we reject the submission made on the side of the accused that the police personnel had started investigating the case at the scene of occurrence even before the alleged First Information Report was lodged by P.W.1.
44. The dispute as to the ownership of the car and Bajaj M 80 Vehicle pales into insignificance in a case of murder. The question is whether all the accused participated in the occurrence and committed the murder. The eye- witnesses have spoken to the fact that A1 to A7 alighted from the car and A8 and A9 got down from the Bajaj M 80 Vehicle. The Car and the Bajaj M 80 Vehicle, which were used for the occurrence were also recovered by the Investigating Officer. The lack of proof as to the ownership of the Car and Bajaj M 80 Vehicle, which were used for the commission of the offence does not go to the root of the case.
45. The First Information Report is not an encyclopedia to contain all the minute details of the occurrence. The lack of reference to the eye-witness to the occurrence is not fatal to the case of the prosecution. The case of the prosecution cannot be thrown out on the sole ground that the name of one of the ocular witnesses does not find a place in the First Information Report.
46. The participation of the family members in the commission of crime depends upon the deep rooted acrimony between the two groups. Further, the status of the family members, their grooming, and their perception of the issues would also decide the individual participation of the family members. It is not unnatural for almost all the family members to participate in the commission of crime. Therefore, we straight away reject the submission of the learned Senior Counsel that the prosecution has come out with an artificial version that almost all the family members participated in the crime.
47. The First Information Report is the material document in this case. That has reached with a delay of five hours. The other documents have reached the court on 28.08.2002 with a delay of nine days. The statements recorded from the witnesses except the statement of P.W.1 and P.W.2 along with the charge sheet have reached the court on 10.02.2003 with a delay of about six months. In Arumugam V. State, (2001) M.L.J. (Crl.) 801, this Court has held that the statement of important witnesses recorded during the investigation should be sent to the court at the earliest point of time. If there is any delay, then the evidentiary value of such witnesses is open to serious doubt. It has been further observed therein as follows:
"11. The next circumstances relied on by the learned Sessions Judge is the oral evidence of P.W.10. His oral evidence shows that he is a neighbour and on the early hours of 25.12.1991, he saw the accused pushing his three tyre cart on which, 3 baggages were found. On being questioned as to where he is going, the accused replied that he is going out to burn old clothes. This witness is definitely an important witness. But however, this witness had come to be examined during the course of investigation only on 4.1.1992 and when we pierced the original records, we see with surprise that his statement so recorded had reached the Court only on 1.2.1993. This Court has been consistently holding that the statement of important witness recorded during investigation should be sent to the Court at the earliest point of time. If there is any delay, then, the evidentiary value of the evidence of such witnesses is open to a serious doubt. In view of the delay in sending the statement of this witness to the Court, as noted above, we are of the considered opinion, that to act upon the evidence of this witness will be a risky factor, especially in a case of murder like this."
48. That was a case, where the oral evidence of P.W.10 was found to be very material for deciding the involvement of the accused. The said neighbouring witness, who allegedly witnessed the occurrence was examined only after ten days and the statement recorded under Section 161 of Cr.P.C. reached the court only after long delay. In such circumstances, this Court has held that the failure on the part of the Investigating Agency to despatch the statement of such an important witness forthwith to the court creates doubt in the version of the prosecution.
49. But in this case, except the name of the eye-witness P.W.7, the other ocular witnesses name found a place in the First Information Report. The evidence of P.W.7 lends merely corroboration to the evidence of P.W.1 and P.W.3. Of course, the Investigating Agency should have despatched the relevant materials collected and the statements recorded to the court without any delay. But such a delay in the above facts and circumstances does not create a dent in the case of the prosecution.
50. It is true that Finger Print Expert and Sniffer Dog were summoned by the Investigating Officer. It is submitted that they have been summoned by the Investigating Officer as the Investigating Officer was groping in the dark as to the real assailant in the commission of double murder.
51. The learned counsel appearing for 6th appellant submitted an authority reported in Suresh @ Sureshkumar @ Thennarasu and another vs. State by Inspector of Police, G.2 Karimedu Police Station, Madurai District, (2004) Vol.II L.W. 814, wherein it has been held in paragraph 19 as follows:
"19.At the outset, it shall be stated that even according to P.W.21 Sub Inspector of Police, P.W.1 Jeganathan came to the police station at about 9.45P.M. on 24.10.1996 and gave a written compliant against both A1 and A2 by mentioning their names stating that both of them attacked the deceased. When identify of the accused persons was known to the investigating officer at about 9.45P.M. on 24.10.1996, where is the necessity for P.W.22 to request the Finger Print Expert to come and take finger print from the Auto stationed near the hospital?"
With due respect, we find that no ratio has been laid down in the aforesaid discussion. It is only an observation made by this Court in the facts and circumstances of the said case. We cannot simply doubt the veracity of the prosecution case, where the Finger Print Expert has been summoned in spite of the ocular witness available on record. Summoning of the Finger Print Expert is within the exclusive domain of the Investigating Officer. There are cases where the scientific experts are summoned to rule out all the doubts about the identity of the accused. This may be of one such case, where the Investigating Officer chose to summon the finger print expert. In a case, where the ocular testimonies are available on record, the steps taken by the Investigating Officer to summon the Finger Print Expert to rule out all the possibilities cannot be a ground for rejection of the case of the prosecution.
52. As far as summoning the Sniffer Dog is concerned, the Investigating Officer P.W.26 has explained that the Sniffer Dog was summoned only to detect the head portion of the dead body of Sankara Lakshmanan. Therefore, summoning of the Sniffer Dog during the course of investigation by P.W.26 cannot be faulted with.
53. It is true that P.W.1, who is the brother of the deceased would state that he received the message from Sankara Lakshmanan, who was at Kovilpatti. But, P.W.3, the wife of the deceased Sankara Lakshmanan would disclose that her husband had been to Tirunelveli on 17.08.2002 itself. It is her assertion that on 19.08.2002 he had not come to her house at Kovilpatti.
54. It is to be noted that she does not say that her husband did not come to Kovilpatti. But, she would state that her husband did not come to her house at Kovilpatti. There is every possibility for the deceased to telephone P.W.1 and other deceased to come down to Kayathar without proceeding to his house at Kovilpatti. In view of the above, we do not doubt the testimony of P.W.1 to the effect that he received a call from Sankara Lakshmanan, who was at Kovilpatti.
55. Even otherwise, the presence of P.W.1 along with the deceased Sankara Lakshmanan at Kayatharr does not provide any scope for doubt. After all inquest is conducted by the Investigating Officer just to know the cause of death. The inquest report is not a material document to prove the case of the prosecution. Inquest Report aids the Investigating Officer to arrive at a certain conclusion as to the cause of the death of the deceased with the able assistance of the panchayatdars. Therefore, the non-reference as to the presence of P.W.1 in the inquest report is not fatal to the case of the prosecution.
56. It is not as if no witness from Kayathar was cited and examined. Uchimakali P.W.8, who hails from Kayathar Village has been examined. But, he has turned hostile to the case of the prosecution. In this case not only the close relative of the accused, but also independent witnesses, who witnessed the occurrence had been examined to establish the case of the prosecution.
57. We find that the ocular witnesses P.W.1 and P.W.3 have unambiguously deposed before the court that A1 Ponnu Pandian and A9 Periyasamy have cut and removed the head of the deceased Sankara Lakshmanan. A1 had partly cut the head of the deceased Sankara Lakshmanan and the 9th accused virtually cut off the head portion from the trunk. There is no ambiguity in the evidence of the ocular witnesses as to the severance of the head by the accused A1 and A9.
58. P.W.1 has given cogent evidence as to the motive between the accused party and the prosecution party. It is found that the dispute in connection with the election and the exclusive first respect claimed mutually by the deceased Sankara Lakshmanan and the 1st accused have created acrimony in the minds of the prosecution party and the accused party.
59. The Postmortem Doctor has failed to note down the probable time of death of the deceased Sankara Lakshmanan and Muthu Krishnan. It is really a lapse on the part of the Postmortem Doctor to note down the time of death of the deceased. The accused has not challenged the time of death of the deceased during the course of trial. Therefore, the failure on the part of the Postmortem Doctor to refer specifically the probable time of death of the deceased does not upset the case of the prosecution.
60. We find that the trial court has rightly convicted all the accused and sentenced them as stated supra based on the telling materials available on record. There is no warrant for interference with the well considered judgment of the trial court.
60. In view of the above, we confirm the judgment of conviction recorded and sentences imposed on them by the trial court in S.C.No.111/2004. Consequently, the appeal stands dismissed.
tsi To
1. The Inspector of Police, Kayathar Police Station, Tuticorin District.
2.The Principal District Judge, Tuticorin District.