Madras High Court
Sathiyamoorthy vs The State Rep. By Its on 17 June, 2004
Bench: N.Dhinakar, M.Chockalingam
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 17/06/2004
CORAM
THE HONOURABLE MR. JUSTICE N.DHINAKAR
AND
THE HONOURABLE MR. JUSTICE M.CHOCKALINGAM
C.A. NO. 203 OF 2001
AND C.A.NOS., 221, 228 AND 495 OF 2001
1. Sathiyamoorthy
2. Moorthy @ Cakaramoorthy .. Appellants in CA No.203/01
1. Selvam
2. Pattabi
3. Mohu @ Mohan
4. Senthil @ Senthilkumar
5. Saravanan
6. Durai @ Duraisamy .. Appellants in CA No.221/01
Kumar @ Rakkappattayan .. Appellant in CA No. 228/01
T. Rajesh Thomas .. Appellant in CA No. 495/01
-Vs-
The State rep. by its
Inspector of Police
Bhavani Police Station
Erode District. .. Respondent in all the appeals
Appeals preferred against the judgment passed by the learned II Addl.
Sessions Judge, Erode in S.C. No.76 of 2000 as stated therein.
!For Appellants : Mr. R.Gandhi, SC
Mr. V.Gopinath, SC
Mr. A.Padmanabhan
Mr. N.Chandrasekaran
Mr. G.Karthikeyan
Mr. D.Selvaraj
^For Respondent : Mr. I.Subramanian, PP
assisted by V.M.R.Rajendran, APP
:COMMON JUDGMENT
(JUDGMENT OF THE COURT WAS MADE BY N.DHINAKAR, J.) C.A. No.203/01 is by A-5 and A-6, C.A. No.221/01 is by A-1, A-2, A-3 , A-4, A-8 and A-9, C.A. No.228/01 is by A-7 and C.A. No.495/01 is by A-10 in Sessions Case No.76/00. In this common judgment, for the sake of convenience, the appellants in C.A. No.203/01, 221/01, 228/01 and 495/01 will referred as A-1 to A-10 in the order they were arrayed before the learned II Addl. Sessions Judge, Erode. The common judgment is being delivered since the questions raised in all the appeals relate to the same transaction which took place at 5.30 p.m. on 7.4.98.
2. Before we proceed to narrate the facts, we wish to mention the charges framed against each accused and the sentence imposed upon them by the learned Sessions Judge. Charge No.1 was framed against A-1 to A-10 under Section 148 IPC for which each one of them was sentenced to two years R.I. and similarly under Charge No.2, A-1 to A-4 were sentenced to two years R.I. for an offence punishable under Section 353 IPC. Charge No.3 was framed against A-5 to A-10 under Section 353 read with Section 149 IPC on the allegation that they shared the common intention of A-1 to A-4 for preventing P.W.s 1 and 2 from discharging their official duties. The learned Sessions Judge finding them guilty under the said charge, sentenced each one of them to two years R.I. A-1 was charged under Section 332 IPC for causing injury to P.W.1 and was sentenced to two years R.I. under the said charge. Under Charge No.5, A-2 to A-10 were charged with the aid of Section 149 IPC for sharing the common object of A-1 in causing injury to P.W.1 for which each one of them were sentenced to two years R.I. Charge No.6 was against all the accused, namely, A-1 to A-10 under Section 302 read with 34 IPC and on finding each one of them guilty, the learned Sessions Judge sentenced them to imprisonment for life. Hence, the present appeals.
3. The case of the prosecution as could be discerned from the oral and documentary evidence which led to the framing of the above charges may be briefly summarised as follows :-
P.W.3 is the brother-in-law of the deceased Jambu and P.W.5 is the wife of the deceased. The deceased Jambu and his wife P.W.5 were residents of Tiruvallur Nagar. Sometime prior to the date of incident a quarrel ensued between the deceased Jambu and Nesavel, during which the said Nesavel beat Jambu. Jambu getting angry at the conduct of Nesavel threw acid on his face. The deceased was thereafter prosecuted for the said act. He was sentenced to imprisonment and after serving the sentence returned to his house. On a particular day when P.W.5 was not in the house four or five persons went to the house of Jambu and attempted to assault him, which was witnessed by P.W.3, the brother-in-law of the deceased Jambu, who is the husband of P.W.5. The information was given to P.W.5 after her return from the river where she had gone to bring water. The deceased and P.W.5, apprehending further attack, left Tiruvallur Nagar and were residing with their relative at T.S.Palayam, which was near Andiyur. Later the deceased Jambu was arrested in connection with the murder of Nesavel.
4. After the arrest, the deceased was in judicial custody and was being produced for further remands. On 7.4.98 as usual the deceased was taken to the court of Judicial Magistrate No.3, Erode and, thereafter, Judicial Magistrate, Bhavani, in connection with another case for remand. At the court of Judicial Magistrate, Bhavani, P.W.s 3 and 5 met the deceased. Later the deceased was taken by P.W.s 1 and 2, the escort police constables in a bus for lodging him in central prison, Coimbatore. P.W.3 also boarded the same bus. When the bus was proceeding and when it reached flower bazaar bus stop where some passengers alighted and some boarded the bus and when the bus was about to start its onward journey, A-4 who was sitting in the rear seat got up and shouted "cut him on his neck". A-3 also was found in possession of a knife. The other accused threatened the witnesses. The bus was stopped. The passengers alighted from the bus and ran helterskelter. The deceased was pushed down by A-1 to A-4 and when Jambu attempted to escape, A-1 cut him on the neck followed by A-2, who inflicted an injury on the head. A-1 inflicted an injury on P.W.1 when he attempted to intervene and ward off the cut and as a result of which A-1 suffered an injury on his right palm. P.W.1 also suffered an injury at the hands of A-1 when he attempted to prevent him from cutting the deceased. The accused were keeping the knives over the neck of P.W.s 1 and 2, the escort constables and, therefore, they could not do anything. All the other accused thereafter cut the deceased Jambu indiscriminately after he was pushed down. P.W.s 1 and 2 alighted from the bus and P.W.1 with the gun which he was having in his hand shot at the assailants. He fired four rounds. A-1 suffered gun shot injury and ran limping towards the west. On hearing the gun shot sound, the other accused ran away from the place, some leaving weapons and some taking the weapons with them. The neighbouring shop owners shut the doors and ran away. P.W.1 went near Jambu, who was lying in a pool of blood and on an examination found him dead.
5. P.W.18, the head constable, Bhavani Police Station was on bandobust dury at 5.20 p.m., and on coming to know about the attack by ten persons on a person who was travelling in a bus, rushed to the place where he found P.W.1 with injury and Jambu lying dead. On seeing the injuries on P.W.1, P.W.18 took him to the hospital after taking the bullets, warrant book and other documents, which were in possession of P.W.1. P.W.1 was produced before P.W.9 at 6.10 p.m. The Doctor examined him and found on his person a lacerated injury measuring 6 cm X + cm X + cm over the right palm with bleeding and an incised injury measuring 5 cm X + cm X + cm over the medial aspect of the right elbow with bleeding. P.W.1 was admitted as an in-patient and he was sent to the radiological department for taking X-ray. X-rays were taken, but no fracture, fortunately, was suffered by P.W.1.
6. P.W.21, the Inspector of Police in the meantime on receipt of an information at about 5.45 p.m. about the occurrence proceeded to Bhavani Hospital where he found P.W.1 as an in-patient. He questioned him and a statement was given by him, which was recorded at 6.00 p.m. The said statement is Ex.P-1. P.W.21 returned to the police station and registered the case in Crime No.203/98 against A-1 to A-6 under Sections 147, 148, 332 and 302 IPC and prepared the first information report, Ex.P-58. The express reports were sent to the higher officials as well as to the Court. As the deceased Jambu died while he was in police custody, he sent a requisition to the Revenue Divisional Officer , P.W.19 for conducting autopsy. P.W.19, the Revenue Divisional Officer, on receiving the copy of the printed FIR at 7.45 p.m., proceeded to the scene of occurrence, which he reached at 8.30 p.m. He observed the scene of occurrence and conducted autopsy over the body of the deceased Jambu, by preparing inquest report, Ex.P-50. The investigation in the case was thereafter taken up by P.W.21, who prepared an observation mahazar, Ex.P-3 and drew a rough sketch, Ex.P-59. He seized M.O.s 11 and 12, bloodstained earth and sample earth respectively along with veech aruval, M.O.s 8, 9 and 10 and a pair of slippers, M.O.13 under a mahazar, Ex.P-4 attested by P.W.6 and another. He thoroughly examined the inside of the bus and prepared an observation mahazar, Ex.P-5 for the same. A rough sketch of the vehicle, Ex.P-60 was prepared. At about 9.30 p.m., M.O.s 1 to 5, which were handed over by P.W.2, the bullets, were seized along with passport M.O.8 under a Mahazar Ex.P-7. By the same mahazar he also seized warrants Exs.P-9 to P-11 in respect of the deceased. He questioned witnesses at the place and recorded their statements. He examined P.W.s 3 and 5 and others at the scene of occurrence and recorded their statements. P.W.2, who also had an injury was referred to the hospital for treatment with a memo.
7. In the meantime, A-1 who suffered a bullet injury appeared before P.W.10 at 8.10.p.m., the casualty medical officer attached to Government Hospital, Mettur, along with his mother Guruvammal. The doctor found the following injuries, which he noted in Ex.P-36, the wound certificate :-
"1) A massive contusion involving the whole of left thigh fracture to femur.
2. Lacerated injury of 15 X 10 cms over the middle of 1/3 of left thigh muscles exposed.
3) Lacerated injury of 3 X 2 cms just below the first injury.
4) Stab injury of 2 X 1 cms back of left thigh bleeding."
Ex.P-36 is the wound certificate issued by him. When questioned as to the cause of injury suffered by him, A-1 told him that when he was running away from the scene after murdering his enemy, he was fired at by the police at 5.00 p.m. on 7.4.98 at Bhavani bus stop. A-1 thereafter was sent to the Government Hospital, Erode where P.W.13 took X-rays and found a fracture. Ex.P-26 is the X-ray and Ex.P-47 is the report of the Radiologist to the effect that the accused has suffered a communited fracture on the shaft of left femur with multiple small radio opaque shadows suggestive of foreign bodies seen in the left tissues around the fracture.
8. Dhanasekaran, one of the persons, who was travelling in the bus and who suffered a bullet injury appeared before P.W.14, and was treated and a certificate Ex.P-48 was issued. The Doctor found a lacerated injury measuring 3 cm X 2 cm on the front of left shoulder.
9. P.W.21 continuing with his investigation issued a requisition P. W.38 to the doctor for conducting autopsy on the body of Jambu. On receipt of the said requisition, P.W.11, the Civil Assistant Surgeon attached to the Government Hospital, Bhavani, conducted autopsy on the body of Jambu and found the following injuries :-
"EXTERNAL :
Hand cuff present in both upper limbs. Body covered with blood. Eyes partially closed.
INJURIES :
1) Stab injury 2" X 1" muscle deep just below the occipat upper and lower edges sharp corners sharp.
2) a) Lacerated injury 3" X 1" bone deep upper part of the left ear ...., b) cut injury 1 cm X + cm posterior skin attached on the left ear lower lobe.
3) Vertical abrasion 3" (due to cut) skin deep above the left eye.
4) Cut injury 1+ cm X 2 cm skin deep over the front of the nose.
5. Right upper chest a) cut injury 1" x + cm muscle deep below the right clavicle.
b) Stab injury 1+" X 3" depth 5" below the above injury upper edge sharp. Lower sloping right corner sharp left blunt. c) Vertical stab injury 2+ " X 1+ " depth 2" below the above injury outer edge sharp inner edge sloping both corners sharp. d) Horizontal stab injury s" X 2+ " depth 7" over the upper part of sternum. Both edges sharp, outer corner sharp, inner blunt.
6) Horizontal stab injury over the right axilla 1+" X +" depth upper edge sharp. Lower sloping corners inner sharp, outer blunt.
7) Stab injury s" X +" depth s" over the right upper arm. Both corners sharp upper edge sharp, lower blunt.
8) Cut injury 1" x +" muscle deep over the right lateral elbow.
9) a) 1+" X 1" depth s" horizontal cut injury above the right wrist both edges sharp outer corner sharp, inner blunt.
b) Stab injury s" X +" depth 2" margins not clear below the above injury above the right wrist.
10) Cut injury below the left little finger 1 +" X +" muscle deep.
11) Cut injury base of left thumb, bone cut.
12) 1" X +" X 1 +" depth stab injury just above left iliac crust. Edges sharp, outer corner sharp, inner blunt.
13) Stab injury left abdomen 1 +" X s" depth 2" X 3" above injury No.12 upper edge sharp, lower blunt, inner corner sharp, outer blunt.
14) 1" X +" cut injury muscle deep over the left upper shoulder.
15) Stab injury 1" X ," depth 1" below the left scapula. Edges not clear.
16) Stab injury 1" X +" depth 1" on the back left 2" below the above injury below the left scapula."
The doctor on external examination found an injury on the lower lobe measuring 1" X 1" X 1" corresponding to injury No.20 and another injury corresponding to injury No.4 on the lower lobe measuring 1" X 1" X 1" on the right side. The doctor also noticed a fracture on the back of his head corresponding to injury No.19.
10. The doctor issued Ex.P-39, post-mortem certificate with his opinion that the deceased would have died on account of shock and haemorrhage due to multiple injuries to vital organs like both lungs, spleen and injury to the skull about 14 to 22 hours prior to autopsy.
11. P.W.21 continuing with his investigation questioned witnesses and recorded their statements including the statement of Dhanasekaran, a passenger of the bus who also suffered a bullet injury. He seizedM.O.15, the shirt of Dhanasekaran under a mahazar, Ex.P-12. He thereafter proceeded to the scene of occurrence and questioned some more witnesses and recorded their statements. On 8.4.98 at 10.00 a.m., on an information received, he proceeded to Appakoodal and arrested A-6 and he was sent to court for remand. The material objects seized till then were sent to court under Form-95. P.W.21 searched for the other accused and on 14.4.98 at about 8.30 a.m., he proceeded to old bus stop at Bhavani where in front of a book shop belonging to Ramalingam he arrested A-2. He questioned A-2 an in pursuance of the admissible statement Ex.P-13, veech aruval M.O.s 16 and 17 and M.O.18 shirt and dothi were seized under a Mahazar Ex.P-14. The accused was brought to the police station and sent to court for remand. At 9.00 a.m. on 16.4.98 he proceeded to new bus stand and near a public convenience, arrested A-9 in the presence of P.W.6 and another. A-9 gave a statement and in pursuance of the admissible portion given by him, he seized M.O.19 under a mahazar attested by P.W.6 and another. The accused was later sent to court for remand. A-3 was arrested on 23.4.98 in the presence of two witnesses and in pursuance of the statement given by him, he was taken to Bhavani river bed where a bloodstained full shirt, M.O.21 was produced and the same was seized under a mahazar, Ex.P-22. The accused was sent to court for remand. On 29.4.98 at 10.00 a.m., he arrested A-4 while he was standing near a bus stop in the presence of witnesses. Ex.P-24 is the admissible portion of the statement given by A-4. The material object produced by him, namely, bloodstained shirt, M.O.23 was seized under a mahazar Ex.P-24. The accused was later sent to court for remand. At noon on 20.4.98 he arrested A-8 and at 1.00 p.m., arrested A-7. A-7 took the police party to a bush and produced a button knife, M.O.24, which was kept concealed under the said bush. The same was seized under a mahazar. A-8 produced a suri knife, which was also seized under a mahazar. The accused were sent to court for remand. A-5 and A-10 have surrendered before the Judicial Magistrate on 22.4.98 and they were taken into police custody on 4.5.98 with the permission of the court. They were brought to the police station and questioned. They gave statements and in pursuance of the admissible portion of the statements, weapons were recovered under a mahazar. They were sent back to court for remand on the same day.
12. On 13.5.98, P.W.21 gave a requisition to the Judicial Magistrate to record the statement of some of the witnesses under Section 164 Cr.P.C. and gave a requisition on 5.5.98 to the P.W.12, Judicial Magistrate, Perundurai, to conduct test identification parade of the accused. Thereafter P.W.12, the Judicial Magistrate, Perundurai, on receipt of the requisition conducted test identification parade at Central Prison, Coimbatore, for A-2 to A-10 at 11.00 p.m. On 15.5.98. P.W. s 1, 2 and 4 and Palaniappan were present on summons to participate in the test identification parade. P.W.s 1 and 2 identified all the accused correctly, but the other two witnesses, P.W.4 and Palaniappan could not identify any of the accused. Ex.P-43 is the proceedings of the Magistrate as regards the test identification parade conducted by him. The accused complained to the Magistrate that they were shown to the witnesses by the investigating officer before the test identification parade. The material objects were forwarded to court by P.W.21 and further investigation was taken up by his successor, P.W.22. P.W.22, on taking up the investigation from P.W.21 obtained the post-mortem certificate, Ex.P-39 and, thereaf ter, questioned the doctor, who treated P.W.s 1 and 2. He also questioned the Doctor Shanmugasundaram, who treated the passenger Dhanasekaran and recorded their statement. He questioned the radiologist on 6.1.98 who took X-rays of A-1 and recorded his statement. He also obtained the wound certificate, Ex.P-36 issued by Doctor Nirmala, P.W.10 for the injuries which she found on A-1. He questioned the photographer who had taken photographs of the dead body. The final report was filed after the completion of investigation on 6.1.98 for various offences including an offence punishable under Section 302 IPC.
13. The accused were questioned under Section 313 Cr.P.C. All of them denied their participation in the crime. A-1 filed a written statement in which he has stated that he was travelling in the bus on the fateful day and when the passengers alighted from the bus, he also alighted and suddenly noticed that something hit his leg. He further stated that he rang up his senior paternal aunt's son Subramani, who took him to the hospital where he was admitted as patient and that a statement was also recorded by a Magistrate. He denied that he had any role to play in the commission of the offence. A-2 stated that he was in the house on the day of occurrence and was taken from his house by the police officers and that he came to know that Jambu was cut by someone. According to him, at the police station he was detained and that he was implicated in the crime by the investigating officer. A similar defence was taken by A-3, who has further stated that his signature was taken on a blank paper. A-4 followed suit by taking the same defence as taken by A-3. A-5, while denying the incriminating circumstances appearing against him finally stated that on 15.7.98 while he was sleeping in his house after returning from his duty of driving a vehicle, he was informed that police had come in search of him and that he surrendered. He further stated that his photograph was taken and he was shown to witnesses and that he had no part to play in the crime. A-6 stated that on 7.4.98 he went for his duty to drive a vehicle and in the morning he went to the police station to find out as to what happened and that he was detained there. According to him he was implicated in the case along with others and that his photographs were taken by the police. A-7 also took a similar plea by stating that while he was in his house on the night of 7.4.98 he was taken away by the police where he was detained and a false case was foisted upon him. A-8 while denying the incriminating circumstances appearing against him stated that he was taken to the police station on 8.4.98 where his signature was obtained o n a blank paper and his photograph was also taken. A-9 also took a similar plea stating that he was taken to the police station on 7.4.98 from his house by the police and at the police station his signature was taken on a blank paper and that his photographs were also taken. A-10 stated that he was working as a lorry driver and while he was in his house, his mother and brother were taken by the police and that they were threatened. According to him, on coming to know about the illegal detention of his mother and brother, he surrendered before the court and later he was taken to police custody and that his signature was obtained on a blank paper and his photographs were taken.
14. The respective counsel appearing for the appellants in the above appeals strenuously contended before us that the entire prosecution version is an afterthought and that at the time of incident, P.W.s 1 and 2 could not have known the identity of any of the accused and in this background the non-examination of any of the independent witnesses, who were travelling in the bus as passengers is fatal. They also attacked Ex.P-1 by submitting that it could not be the real first information statement and that there must have been another statement given by P.W.1 either to P.W.18 or P.W.19, the Revenue Divisional Officer and that Ex.P-1 must have been prepared after due deliberation and that the learned Magistrate must have put his signature by antetiming it as if it was received by him at 8.15 p.m. on the same night. They also attacked the test identification parade on the ground that P.W.17 the police photographer has admitted that photographs were taken of A-5 and A-10 on 4.5.98. They also submitted that P.W.17 when on cross-examined by the learned counsel for A-6 has admitted that photographs were taken by him for the Tamil daily "Dina Thanthi" and relying upon the evidence of P.W.21 that the photographs of the accused were taken and published in the papers, the test identification parade conducted by the learned Magistrate, P.W.12 on 15.5.98 is only a farce as the witnesses must have been aware abut the persons whom they have to identify at the test identification parade. The counsel therefore contend that the test identification parade has no value and the accused ought to have been acquitted by the trial court. It was also argued that the case of the prosecution is highly artificial, in that while the accused were running, they were shouting by mentioning the names of the accused to run away from the place after the commission of the offence and, therefore, the prosecution case has to be rejected and there is also no evidence as to who shouted and mentioned the names of the accused asking them to run away from the place. It was the contention of the counsel that P.W.1, who suffered only a minor injury ought to have gone to the police station first instead of going to the hospital and, therefore, the conduct of P.W.1 is highly suspicious and the complaint, Ex.P-1 must have come into existence at a later point of time after the superior officers had come.
15. On the above contentions, we have heard the learned Public Prosecutor and carefully went through the recorded evidence both oral and documentary.
16. We will now take up the case of A-1 to A-6 and later deal with the case of A-7 to A-10 as the case of A-1 to A-6 stands on a different footing from that of A-7 to A-10.
17. We will first take up the contention of the counsel whether the first information statement, Ex.P-1 is the real first information statement or whether there was any other earlier statement given to P.W.18 or P.W.19 the Revenue Divisional Officer. The case of the prosecution is that the occurrence took place at 5.30 p.m. near the bus stop at Bhavani for which a complaint was given to P.W.21 by P.W.1 at the Government Hospital, Bhavani at 6.00 p.m. The same stands marked as Ex.P-1. According to P.W.1, after the incident, P.W.18 reached the scene of occurrence and on being informed about the occurrence took P.W.1 to the hospital and admitted him. This part of the evidence of P.W.1 that he was taken to the hospital and was admitted is supported by P.W.9, the casualty medical officer attached to the Government Hospital, Bhavani and the details mentioned in Ex.P-29, the wound certificate issued by the said doctor for the injuries found on P.W.1. P.W.1 when questioned has stated that he was assaulted by two unknown persons with veech aruval. The counsel appearing for the accused/ appellants in the above appeals relying upon the this statement in Ex.P-2 9 would strenuously argue that since at the earliest point of time P.W.1 had come out with a version that he was attacked by two unknown persons, the present case of the prosecution that A-1 to A-10 attacked the deceased and also inflicted injuries to P.W.1 could only be an afterthought since P.W.1 did not mention to the doctor that he was attacked by two known persons. This argument though looks attractive, cannot be accepted for the simple reason that it is not the case of the prosecution that the accused were known to the witness, P.W.1 before the occurrence. In fact, when cross-examined both P.W.s 1 and 2, the two escort police, who escorted the deceased Jambu from court to the Central Prison, admitted they did not know any of the accused and in the above background the statement of P.W.s 1 to P.W.9 that he was attacked by two unknown persons will not improve the defence version nor will it destroy the prosecution case. The fact remains that P. W.1 was seen by the Doctor, P.W.9, at 6.10 p.m. and was treated for certain injuries which are found noted in Ex.P-29, the wound certificate. The said wound certificate mentions the time of occurrence as well as the scene of occurrence.
18. There could be no dispute and in fact it is not disputed that the occurrence took place at 5.00 p.m. near the flower bazaar bus stop where P.W.1 suffered an injury. It is no doubt true that in Ex.P-1, P.W.1 has mentioned the names of A-1 to A-6. According to him, after the occurrence when he and P.W.2 opened fire, one of the accused, namely, A-1 suffered a gun shot injury and ran limping towards west followed by the other accused and that while running away, they were heard shouting the names of A-1 to A-6. In the said first information report, Ex.P-1, P.W.1 has stated that while running they were mentioning the names of A-2, A-3, A-6, A-4 and A-5 in that order and that they ran towards Kumarapalayam road. As the accused were not known to P.W.1 earlier, but only heard the names of the six accused at the time of the occurrence, P.W.1 was not in a position to tell the medical officer that he was attacked by two known persons as he did not know as to who among the six named persons in the first information report were actually his assailants at the time of occurrence.
19. At this juncture, we cannot but refer to the argument of the defence. The defence brought to our notice the admission of P.W.1 when he was cross-examined by A-5 and A-10 wherein he has admitted that the Revenue Divisional Officer questioned him at the hospital at about 5.50 p.m. or 6.00 p.m. and that he informed him about the details of the occurrence. He has further admitted that he has signed in the statement and that later P.W.18 questioned him to whom also he mentioned about the incident and that he had also taken a statement in which he has signed. He has stated that the statement given to P.W.18 is Ex.P-1. The defence relying upon this evidence of P.W.1 strenuously contend that there must have been a statement given to P.W.18 much earlier to the statement given to P.W.21 at 6.00 p.m. and the said statement was suppressed as it was found to be inconvenient to the prosecution version. We are unable to accept the theory put forth by the defence before this Court. If there had been a statement given either to P.W.19 or P.W.18 in that order at 5.50 p.m. at the hospital and if the said statement was suppressed by either of them, then P.W.18 and P.W.19 ought to have been atleast suggested that they have recorded the statement of P.W.1 even before 6.00 p.m. and that it was suppressed. At this juncture it will not be out of place for us to mention that when P.W.21, the investigating officer was in the box, he was not even cross-examined that there was an earlier statement given by P. W.1 to P.W.18 as well as to P.W.19 at 6.00 p.m. and the said statement was suppressed. In the absence of any cross-examination of any of the witnesses, namely, P.W.s 18, 19 or 21 that a statement was recorded by either P.W.s 18 or 19 before 6.00 p.m., it is difficult to accept the snap answer of P.W.1 in cross-examination that a statement was recorded by P.W.s 18 and 19 at about 6.00 p.m. It is not now disputed that P.W.1 was questioned and his statement was recorded by P.W.19 during the course of his inquest. It is possible that P.W.1 on account of severe cross-examination to which he was subjected to must have given that snap answer on account of the stress and more so when he was giving evidence in court after two years after the incident.
20. Similarly, we are not able to place much reliance upon the evidence of P.W.4, the driver of the bus when he has stated that he came to know of the occurrence after ten minutes and that he saw the Revenue Divisional Officer at that place. Occurrence admittedly took place at about 5.30 p.m. and the Revenue Divisional Officer, P.W.19 was in his office at Gobi. The distance between the scene of occurrence and the office of the Revenue Divisional Officer is about half a kilometre. It is difficult to accept that the Revenue Divisional Officer received the information within ten minutes for him to be present at the scene of occurrence and that P.W.4 the driver was able to identify P.W.19 as the Revenue Divisional Officer since it is nobody's case that P.W.4 knew that P.W.19 is the Revenue Divisional Officer.
21. In this background we have to look at the evidence of P.W.19. He has stated in chief examination that about 7.45 p.m., the first information report in the crime was given to him with a request that he has to conduct autopsy. He has further stated that he reached the scene of occurrence at 8.30 p.m. and conducted autopsy by preparing Ex.P-50, inquest report. He was cross-examined. It was not even suggested to him that he was at the scene of occurrence by 6.00 p.m. though he has stated that he came to know about the incident at 7.45 p.m. In the absence of any cross-examination of P.W.19, an independent officer, the evidence of P.W.4, driver cannot have much value just because he has stated that he saw the Revenue Divisional Officer at 6.00 p.m. for the reasons which we have already mentioned earlier. In fact, in our view, the suggestion put to P.W.21 that first information report was prepared later and that the signature of the learned Magistrate was obtained by ante-timing it is defamatory in nature since the said suggestion is not supported by any authenticated material. The defence cannot get away by making such wild allegations against a Presiding Officer without any basis. Therefore, we do not attach much importance to the admission of P.W.1 that a statement was recorded from him by P.W.19 and P.W.18 in that order before 6.00 p.m.
22. The non-examination of the other passengers in the bus, in our view, is not fatal to the prosecution since the case of the prosecution as brought out through the evidence which we have extracted above show that on being threatened, the passengers alighted and ran away from the place and, therefore, they could not have witnessed the incident. It is no doubt true that one of the witnesses, Dhanasekaran, suffered a bullet injury and the prosecution could have done better by examining him; but the non-examination of the said Dhanasekaran itself cannot be a reason to reject the prosecution version when we have the evidence of P.W.s 1 and 2, the escorts who accompanied the deceased. The fact that they are escorts cannot be a ground to reject their evidence on the ground that their evidence is not corroborated by other oral evidence. In fact, the prosecution examined P.W.3, the brother-in-law of the deceased, but for reasons best known to him, he turned hostile.
23. It is argued before us that P.W.18 did not make any entry in the general diary in the police station about the message received over phone, while he was on bandobust duty near the flower bazaar. The answer lies in the cross-examination of the same witness by A-5 and A-6 . A perusal of the cross-examination of P.W.18 by A-5 and a-6 show that he never stated that he did not make any entry in the general diary and all that he has stated is that he does not remember that he has made any entry regarding the phone message received by him. If it is the specific case of the defence that no phone message was received by P.W.18 and no entry was made in the general diary at the police station, then it is for the accused to have summoned the diary to establish the said fact especially when P.W.18 has only stated that he does not remember whether he made an entry or not and not that he did not make an entry in the general diary.
24. We are also unable to accept the contention of the counsel that it is artificial to accept the prosecution case that while the accused were running the names of six accused, A-1 to A-6 were mentioned by one of the accused asking them to run away from the place. It is the contention that though such a statement was made in the complaint, Ex.P-1, P.W.1 did not say so in his evidence that while running away, the accused, whose names are found mentioned in the complaint, Ex.P-1, were asked to run away from the place and the first information report not being a substantive piece of evidence, the court cannot accept the statement found in the said complaint, Ex.P-1, in the absence of any oral evidence by P.W.1 in court. The argument is attractive, but not acceptable. It is to be remembered that in court all the accused were present and the witnesses have graphically described the part played by each of the accused A-1 to A-6. It is of course true that P.W.1 did not specifically mention in his evidence that while running away one of the accused mentioned the names of accused A-1 to A-6 . This failure on the part of P.W.1 who did not specifically mention the said fact could only be on account of lapse of memory as he was giving evidence in court after two years and this omission on the part of P.W.1 in our view does not affect the prosecution version.
25. Similarly, the contention of the defence that P.W.1, instead of going to the hospital should have gone to the police station, does not also merit any consideration. It is to be remembered the state of mind to which P.W.1 must have been subjected to after the incident as he and the other witness, P.W.2 were taking the remand prisoner from the court to lodge him in Central Prison when the occurrence took place resulting in the death of the remand prisoner and injuries to P. W.1 forcing P.W.1 to open fire. The occurrence had taken place in broad day light when the accused have attacked the deceased and P.W.1 must have been in a state of shock for him to react immediately by going to the police station. It is worthwhile to remember that P.W.18, the constable, who was on duty near the scene of occurrence rushed to the place and finding P.W.s 1 and 2 as well as the dead body at the scene, he took away the relevant records from P.W.s 1 and 2 and also took P.W.1 to the hospital so that he could be treated. P.W.1 should have been certainly under the impression that since P.W.18, another constable had come, he will take care of informing the police station about the incident and in fact the evidence disclose that the office of P.W.21 received information about the occurrence and P.W.21 reached the hospital where he recorded the complaint of P.W.1 at 6.00 p.m. The fact that P.W.1 did not go to the police station and went to the hospital to have his injury treated in the above background cannot be termed as artificial, especially when P.W.1 was taken to the hospital by P.W.18 himself and the message was received by the investigating officer P.W.21.
26. In this background, we have to look at the injuries found on A-1 by P.W.10. The evidence of P.W.10 is to the effect that while he was on duty at Mettur Government Hospital as a Casualty Medical Officer, the first accused Selvam appeared before him at 8.10 p.m. along with his mother Guruvammal with injuries on his person. The doctor has stated that he has treated him and issued Ex.P36, the wound certificate and through him Ex.P37, copy of the accident register has been marked. The accused was questioned by the doctor as to how he suffered the injuries. A-1 informed the doctor that while he attempted to murder his enemy with a knife and while he was running away, the police fired at him at 5.00 p.m. on 7.4.98 at Bhavani Flower Bazaar bus stop. This statement made by the first accused to the doctor though cannot be treated as a confession, it is an admission falling within the ambit of Sec.17 of the Evidence Act, which defines admission as a statement oral or documentary which suggests any inference as to any fact in issue or relevant fact and which is made by any person and at the circumstances therein after mentioned.
27. The statement made by the accused is found in Ex.P-36 as well as in Ex.P-37. At this juncture, it will not be out of place for us to refer to the judgment of the Supreme Court in Ammini Vs. State of Kerala (AIR 1998 SC
260). That was a case where two of the accused who committed murder were arrested and later taken to the hospital as they had suffered injuries on their person. When the doctor questioned one of the accused (A-3), the accused told the doctor that the injuries were caused on his person by biting when he closed Merli's ( deceased) mouth to silence her at 7.30 p.m. on Monday before last. Similarly, the other accused, who was arrayed as A-4 in that case informed the doctor that his left elbow and the outer part of the right hand were injured while taking Merli to the kitchen holding her from behind with left hand, inside Merli's house at about 7.30 p.m. On Monday, 2 6.3.1980. On appeal the High Court found that what the two accused told the doctor amounted to an admission and, therefore, they were admissible in evidence. This view of the High Court was approved by the Supreme Court in the above judgment. That was a case where the accused were taken by the police after their arrest and here the case of the prosecution is on a more stronger ground, since it was the accused who appeared voluntarily before the medical officer and told him as to how he suffered injuries. He was not produced by the police officers for him to contend that the statement was put in his mouth and was asked to say that he suffered injuries while he was running away from the scene of occurrence after the incident when one of the police officers shot at. This statement made by A-1 to the doctor is a corroborative piece of evidence to show that A-1 was present at the time of occurrence along with A-2 to A-6 and that, therefore, nonmentioning of the fact that they were asked to run away from the scene by P.W.1 in his evidence will not affect the substratum of the prosecution version. The only suggestion made to the doctor, P.W.10 by the defence is that A-1 did not give any information as to how he suffered injuries and that the details found in Ex.P-36 was at the instance of the investigating officer, P.W.21. There is no material to support the said suggestion for this Court to hold that the doctor was obliged to the police officer to make such entries in Ex.P-36. It is to be remembered that Ex.P-37 is the copy of the accident register, which is always prepared at the time when the patient is examined and, therefore, it is a contemporaneous record. In the said contemporaneous record, Ex.P-37, we find the same entries and, therefore, the entries in Ex.P-36, which is only a wound certificate given based on Ex.P-37 could not have contained fresh facts if they were not already there in Ex.P-37, the copy of the accident register. Therefore, the contemporaneous record, Ex.P-37 prepared by the doctor at Mettur Government Hospital when he examined A-1 at 8.10 p.m. falsifies the defence theory that the said entries were made at a later point of time at the instance of the investigating officer.
28. The other attack on the prosecution version is that in view of the entries in column 11 of Ex.P-50, the inquest report, the first information report would not have come into existence containing the names of A-1 to A-6. We have perused column 11 of Ex.P-50, which is the inquest report. In column 11, the Revenue Divisional Officer has stated "vjphpfshy; tprhuiz K:yk; bjhpa tUfpwJ", the free translation of which is that "by the accused as investigation reveals". This shows that at the time when the inquest report was prepared, the investigating officer knew the names of atleast six persons and merely because the Revenue Divisional Officer did not mention in detail the names of all the accused, whose names are found in the complaint, Ex.P-1, it cannot be a reason to reject the prosecution version. At the risk of repetition, we have to say that he has stated in column 11 that during investigation the identity of the accused was known.
29. It is suffice for us to state that investigation commences with the recording of the first information report and in this case the first information report having been recorded at 6.10 p.m. and registered immediately thereafter, it can be safely held that the investigating agency knew the details of the names of six persons since they were mentioned by P.W.1 to P.W.21 and if the Revenue Divisional Officer did not mention the six names in the inquest report later, it cannot be put against the prosecution version. It is also to be remembered that the first information report along with the printed first information report was received by the Magistrate at 8.15 p.m., whereas the inquest was conducted by P.W.19 only after 8.30 p.m. This shows that even before the inquest commenced the first information report was in the hands of the Magistrate containing the names of A-1 to A-6 and as we already held that the suggestion put to the investigating officer that the Magistrate ante-timed it is highly defamatory in nature as it is not supported by any material. We therefore hold that there is no suspicious feature surrounding the first information report, Ex.P-1 and its subsequent registration.
30. We will now take up the contention regarding the test identification parade. A-1 was not subjected to any test identification parade and reason is not far to seek. He suffered injury during the course of the transaction and was treated by the Doctor, P.W.10 at Mettur and Ex.P-37, copy of the accident register and Ex.P-36, wound certificate contain the details as to how he suffered injuries. The Radiologist in fact took X-rays to find out whether A-1 has suffered any fracture and has issued a report. In the said report, he has stated that A-1 has suffered a communited fracture on the shaft of left femur with multiple small radio opaque shadows suggestive of foreign bodies seen in the left tissues around the fracture. The injury found on A-1 speaks volumes and, therefore, there was no necessity for subjecting him to test identification parade to enable P.W.s 1 and 2 to identify him as one of the person, who participated in the occurrence. The injury found on A-1 is a very strong circumstance proving the fact that a-1 participated along with A-2 to A-6 and, therefore, failure to subject him to test identification parade conducted by P.W.12 is not fatal to the case of the prosecution.
31. The main thrust of the defence is that since photographs of the accused were published in tamil daily "Dina Thanthi", the witnesses were in a position to identify at the test identification parade and in the above circumstance, no importance could be given to the test identification parade. This argument of the defence is based upon the admission made by P.W.17, the photographer, who was running a photo studio near Kumarapalayam bus stop. P.W.17 is a photographer working for a newspaper "Dina Malar". On coming to know about the occurrence, he went to the scene of occurrence and took photographs to publish them in the tamil daily "Dina Malar". When he was cross-examined by the counsel appearing for A-5 and A-10 that on 4.5.98 he was summoned to the police station and photographs of A-5 and a-10 were asked to be taken and that he took the photographs of the two accused in three angles, he has admitted and stated that he handed over the prints to the police officer. During cross-examination by A-6 he has stated that he was requested to take photographs for the newspaper "Dina Thanthi" and accordingly he took photographs and handed them over to the said daily. P.W.21, the investigating officer has also admitted in cross-examination that after the arrest of the accused, their photographs were taken and they were also published in newspapers.
32. On the basis of this evidence of P.W.s 17 and 21, it was strenuously contended that since photographs of the accused were taken and were published in newspapers, the witnesses were in a position to identify them at the test identification parade. We are unable to accept the said argument. The defence, though was willing to attack, was afraid to strike. They satisfied themselves by eliciting the above answers from P.W.s 17 and 21, but did not go beyond that to establish that the photographs, which were taken by P.W.17 were actually published in the newspapers before the date of test identification parade, which was conducted on 15.5.98. In fact, P.W.17 was shown a newspaper and questioned whether the photographs found in the said newspaper was taken by him and he has admitted that it is the photograph taken by him. The defence even at that stage did not mark the said paper to show that the said newspaper was earlier to 15.5.98. The accused when questioned under Section 313 Cr.P.C., though stated that their photographs were taken, they also did not say that the photographs were published in newspapers prior to the date of the test identification parade. They did not even produce the newspapers along with their statements. If the defence had a definite case that the photographs were published much prior to the date of test identification parade, then it is for them to show that those photographs were published before the test identification parade as suggested by them. Merely because some photographs were published in Tamil dailies, it cannot be held that those photographs appeared in the newspapers prior to the date of test identification parade.
33. Reliance was placed on two judgments of the Supreme Court, one reported in 1998 CRL. L.J. 2534 (Shaikh Umar Ahmed Shaikh & Another Vs. State of Maharashtra) and the other reported in 1999 SCC Crl. 378 (Vijayan Vs. State of Kerala). A perusal of the first judgment cited supra (Shaikh Umar Ahmed Shaikh & Another Vs. State of Maharashtra), shows that it was a case where the accused we re shown to the witnesses at the police station and, therefore, the Supreme Court held that their identification in court at a later point of time was meaningless and, accordingly, held that the test identification parade cannot be accepted. In the present case, except for suggestions that photographs were published in newspapers and oral complaints were made by the accused to the Magistrate that they were shown to the witnesses, there is no material to indicate that photographs were published earlier to the date of the test identification parade and that they were shown to the witnesses.
34. Similarly, the facts in the second judgment cited supra ( Vijayan Vs. State of Kerala) are totally different to the facts in this case. It was a case where a witness identified the accused in the test identification parade, but failed to identify him in court. In the above circumstance, the Supreme Court held that the test identification parade loses its importance.
35. In fact in Dana Yadav @ Dahu & Others Vs. State of Bihar (2002 SCC Crl. 1698), the Supreme Court held that even if test identification parade is not held and witnesses identify the accused for the first time before court, evidence regarding identification in court does not become inadmissible and cannot be discarded on the ground of not being preceded by test identification parade, when the court finds the same to be trustworthy. In view of the above discussion of ours, we find it difficult to accept the defence arguments that the test identification parade is a farce and has no probative value.
36. Two accused in this case have taken the plea of alibi and they are A-5 and A-6. A-5 in his statement under Section 313 Cr.P.C., has stated that he was not at the scene of occurrence and went away to drive a vehicle. A-6 in his statement under Section 313 Cr.P.C., stated that while he was in his house on the night of 7.4.98 he was taken from his house by the police. When P.W.1 was in the box, a suggestion was specifically put to him that on the date of incident he was away at Karur Vysya Bank where he was working as a driver and that he was on duty. The said suggestion put to P.W.1 is not supported by any material. It is a known fact that Karur Vysya Bank is a scheduled bank having branches all over India and it is not difficult for A-6 to have summoned the documents from the bank to prove that he was on duty at Karur Vysya Bank on the relevant date at the relevant point of time.
37. Once a plea of alibi is taken by an accused, then it is for him to establish the said fact. The defence of alibi is the best and worst of defence at the same time. They are the best because that if the accused was not there when the man was murdered, he could not have murdered him. It is the worst because that once he raises a plea of alibi no other defence is usually open to him. For example, in a case of murder, a person who raises a plea of alibi cannot rely on self-defence, accident or extreme provocation as he could not have been there for him to have been provoked or to cause an injury in selfdefence.
38. As Henry Cecil, a county court Judge, who held that position till 1967 stated that once a person commits himself to the plea of alibi, that is the only mode of his escape and if that breaks down, he must wait, as composedly as he can, for the sentence. In consequence, the wise criminal thinks carefully, before he relies on an alibi and the wisest prepare it in advance, as in a military operation, with watches synchronised and excellent reasons arranged for the supporters of his alibi being able to remember the time when he was supposed to have been with them.
39. The Supreme Court in Jayantibhai Bhenkarbhai Vs. State of Gujarat (JT 2002 (7) SC 402) has held that once the prosecution succeeds in discharging its burden, then it is incumbent upon the accused taking the plea of alibi to prove it with certainty so as to exclude the possibility of his presence at the place and time of occurrence. An obligation is cast on the court to weigh in scales the evidence adduced by the prosecution in proving of the guilt of the accused and the evidence adduced by the accused in proving his defence of alibi. If the evidence adduced by the accused is of such a quality and of such a standard that the court may entertain some reasonable doubt regarding his presence at the place and time of occurrence, the court would evaluate the prosecution evidence to see if the evidence adduced on behalf of the prosecution leaves any slot available to fit therein the defence of alibi. The burden of the accused is undoubtedly heavy. This flows from Section 103 of the Evidence Act which provides that the burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence. The law laid down by the Supreme Court in the above judgment apply with all its force to the present case of A-6 as well as to the case of A-5 as the prosecution not only discharged its burden, but the accused have also failed to prove their case by acceptable evidence.
40. We will now take up the case of A-7 to A-10 as their case, in our view, stands slightly on a different footing from that of A-1 to A-6. Their names are not found mentioned in the complaint, Ex.P-1. Of course, the fact that names of the accused is not mentioned in the complaint is by itself cannot be a reason to acquit the accused. In this case, we specifically asked the learned Public Prosecutor as to how and on what materials the investigating officer was able to fix the identity of A-7 to A-10 as the assailants, who joined A-1 to A-6, whose names are found mentioned in the complaint, Ex.P-1. The learned Public Prosecutor was not able to answer to the question, but with all fairness stated after his receiving instructions from the investigating officer, who was present in court, that since the deceased Jambu murdered the brother of A-7, he was tugged in as a suspect and since A-8 to A-10 are the associates of A-7, they were also arrayed as accused. This act of the investigating officer, in our view, is preposterous and unthinkable even in our wildest of wild dreams, since, just because a person happens to be the brother of another, who was murdered by the deceased, as in this case, the officer was not justified in dragging him to the court and make him an accused along with his associates. In fact, the reading of the evidence of P.W.21 leaves a bitter feelings in our mind, since the officer did not properly care to investigate several aspects and the trial court passed strictures as regards his investigation. We do not want to add more woes to the difficulties of the investigating officer by passing some more strictures and suffice it for us to say that the strictures passed by the Sessions Judge about the nature of investigation conducted by P.W.21 are sufficient and we are also told that a departmental enquiry has been initiated against him, which is pending. In view of the above, we do not propose to say anything further in the matter about the investigation. In view of the above discussion, as the prosecution has failed to conclusively establish the guilt of A-7 to A-10, they cannot but be acquitted and, accordingly, they are acquitted.
41. In the result, the conviction and sentence imposed on A-1 to A-6 are confirmed. The conviction and sentence imposed on A-7 to A-10 are set aside and they are acquitted.
42. Accordingly, C.A. No.203/01 is dismissed. C.A. No.221/01 is partly allowed and C.A. Nos. 228 and 495 of 2001 are allowed. It is reported that A-7 to A-10 are in jail in connection with this case. The conviction and sentence imposed on A-7 to A-10 in S.C. No.76 of 2000 on the file of the II Addl. Sessions Judge, Erode, and who are lodged in Central Prison, Coimbatore, are set aside and they are directed to be released forthwith unless their presence is required in connection with any other case.
Index : Yes Internet : Yes GLN To
1. The II Addl. Sessions Judge, Erode.
2. The Principal Sessions Judge, Erode Dist. @ Erode
3. The District Collector, Erode District.
4. The Director General of Police, Chennai.
5. The Public Prosecutor, High Court, Madras.
6. The Superintendent, Central Prison, Coimbatore.
7. The Inspector of Police, Bhavani Police Station, Bhavani.