Madras High Court
M.Deepak @ Ram Deepak vs The State
Author: M.Sathyanarayanan
Bench: S.Nagamuthu, M.Sathyanarayanan
IN THE HIGH COURT OF JUDICATURE AT MADRAS RESERVED ON : 24.02.2016 DELIVERED ON : 30.03.2016 CORAM: THE HON'BLE MR.JUSTICE S.NAGAMUTHU and THE HON'BLE MR. JUSTICE M.SATHYANARAYANAN Criminal Appeal Nos.635 of 2012, 675 of 2012 and 583 of 2013 1.M.Deepak @ Ram Deepak 2.C.Madhesh .. Appellants in C.A.635/2012 /Accused Nos.1 and 4 3.Babu @ Boopathy Pushparaj .. Appellant in C.A.675/2012 /Accused No.3 4.Arun Roy .. Appellant in C.A.583/2013 /Accused No.2 Vs. The State, Rep by its Inspector of Police, Hasthampatti Police Station, Salem District. Crime No.336/2008 .. Respondent/Complainant Prayer: Appeals filed under Section 374(2) of the Code of Criminal Procedure against the judgment dated 17.08.2012 made in S.C.No.39/2009, passed by the learned Sessions Judge, Salem. For Appellants in Crl.A.Nos.635/2012 & 583/2013 : Mr.R.Sankarasubbu in Crl.A.No.675/2012 : Mr.N.Anand Venkatesh For Respondent : Mr.M.Maharaja Additional Public Prosecutor C O M M O N J U D G M E N T
M.SATHYANARAYANAN, J.
The appellants in Crl.A.No.635/2012 are arrayed as the accused 1 and 4 and the appellant in Crl.A.No.675/2012 is arrayed as the third accused and the appellant in Crl.A.No.583/2013 is arrayed as the second accused. As per the charge sheet filed by the Inspector of Police, Hasthampatti Police Station in Crime No.386/2008, which was taken cognizance in P.R.C.No.31/2008 by the Judicial Magistrate No.III (Full Additional Charge), Salem, ten persons were arrayed as the accused and on committal, the case was taken on file in S.C.No.39/2009 and it was tried by the Court of I Additional Sessions Judge, Salem. The trial Court has framed the following charges against accused Nos.1 to 10:
Accused Charges under Sections A1 to A10 Section 120-B r/w. 302 IPC A1 to A7 Sections 148, 341, 302 r/w. 149 and 506(ii) (three counts) IPC A8 to A10 Section 302 r/w. 120B IPC and 302 r/w.109 IPC
2. The trial Court, vide judgment dated 17.08.2012, has convicted the accused 1 to 4 for the commission of offences under Sections 341, 302 r/w. 34 IPC and sentenced them to undergo simple imprisonment for one month for the offence under Section 341 IPC and sentenced them to undergo life imprisonment and to pay a fine of Rs.10,000/- in default to undergo rigorous imprisonment for two years for the offence under Section 302 r/w. 34 IPC, further ordered that the sentences shall run concurrently, also granted them set off under Section 428 CrPC and in respect of remaining charges, the accused 1 to 4 were found not guilty. The State did not prefer any appeal insofar as the acquittal of the accused 1 to 4 in respect of other charges framed against them and also the acquittal of rest of the accused, namely accused 5 to 10. The accused 1 to 4, aggrieved by the above said conviction and sentence passed by the trial Court, vide impugned judgment, had filed these appeals.
3. Facts leading to the filing of these appeals are as follows:
3.1. The deceased in this case, namely Arun and the eighth accused, namely Vishnukumar and other accused are the residents of Hasthampatti, Salem Town. The eighth accused is carrying on the avocation as real estate broker and running his office opposite to Mariyamman Temple, Hasthampatti, Salem Town. Difference of opinion arose between the deceased and the eighth accused with regard to printing of notice for conducting festival for Mariyamman Temple and that apart, they was wordy quarrel for location of cracker shop in the place belonging to the above said temple. The eighth accused and first accused/first appellant in Crl.A.No.635/2012, namely Deepak @ Ram Deepak went into the house of Dhanalakshmi/PW5 and attempted to misbehave with her and the said fact was reported to the deceased/Arun, who in-turn questioned the accused 1 and 8. Accused 1 and 8 enraged by the same, administered a warning to do away with the life of the deceased/Arun on the 18th day of Tamil Month Aadi. Accused 1 and 8 had also threatened the witness Seeni @ Bandha Seeni by brandishing a knife and at knife point, committed theft of Rs.200/- and also a cellphone and there were many incidents/quarrels/disputes happened between the said accused and the deceased/Arun and therefore, all the accused decided to do away with the life of Arun.
3.2. Accordingly, on 01.08.2008 at about 10.00 p.m., a conspiracy was hatched at the office of the eighth accused located in front of Mariamman temple and in pursuance of the same, on 04.08.2008 at about 7.15 p.m. near Pillayar Temple at Thengdral Nagar, Salem Town, the accused 1 to 7 came in three motor cycles (M.Os.23 to 25) and formed themselves into an unlawful assembly with the common object of causing the death of Arun and they were also armed with deadly weapons. Accused 1 to 7, with the help of accused 8 to 10, had wrongfully restrained Arun, who was riding his motorcycle with a view to cause his death. The first accused voluntarily caused hurt to Arun/deceased with a Veecharuval (M.O.6) on his neck, throat, right thigh and on his right ear respectively. The second accused voluntarily caused hurt to the deceased/Arun with a Pattakathi (M.O.1) on his back side of neck, head, right side of stomach, right thigh and right back side of head. The third accused attacked Arun with Veecharuval (M.O.2) on his right side of stomach, near right ear and on his right side of neck. The fourth accused attacked Arun with Veecharuval (M.O.3) on his right shoulder and anterior side of right shoulder. The fifth accused attacked Arun with a Soorikathi (M.O.4) on his left side of chest and on his both sides of buttocks. The sixth accused attacked the deceased/Arun with a Soorikathi (M.O.5) on his stomach left side of back and on his head. The seventh accused attacked Arun with Veecharuval (M.O.7) on his right side of back, head and on his left hand. Arun, due to infliction of multiple injuries, caused by the above said accused, with deadly weapons, died on account of shock and hemorrhage on the spot.
3.3. PW1 is the father of the deceased and he is a retired employee of Salem Cooperative Soceity and also the Treasurer of Paargavakula Sangam a communal and non-political outfit and his son, namely Arun/deceased was running an unregistered financial concern and was also a member of Dravida Munnetra Kazhagam (DMK) a political party. The eighth accused, namely Vishnukumar was his distant relative and his father was a neighbour of PW1. The eighth accused was also a real estate broker, having office opposite to Mariyamman Temple under the name and style of 'Amman & Co.' and also the President of Salem District Moopanaar Peravai. Accused 1 to 7 are the henchmen of the eighth accused. The eighth accused had formed a group to celebrate the Mariyamman Temple festival and also solving disputes between the parties. When PW7 sought to locate a cracker shop on the land belonging to the temple, he was threatened by the accused 1 and 2 and as already pointed out, they also misbehaved with PW5 and the said fact was informed to the deceased/Arun, who in-turn castigated them.
3.4. PW2 is the Co-brother of the deceased/Arun and at about 4.00 p.m. on 04.08.2008, he along with his father/PW3 came to the house of PW1 and invited them to attend the Kottai Mariyamman Temple Festival and also invited other relatives. The son of PW1, namely Arun(deceased) was present at that time and he informed PW2 that he was proceeding towards Salem town and left the place. At that time, PW1 received a phone call that one Deputy Tahsildhar died in Ayothiyapattinam and therefore, he along with his cousin brother Dhandapani were about to leave the house and PW3 also indicated that he is going to the town. Accordingly, PW1 went along with PW2 in his Hero Honda Motor Cycle and in front of them, his son, namely Arun(deceased) was riding his Bajaj Caliber Motor Cycle (M.O.13). At that time, accused 1, 2, 4 and three others had assaulted him with deadly weapons. The said incident was witnessed by PWs.1 and 2 through the illumination of the lights located in the temple and they also raised alarm and all the accused threatened them with dire consequences. PW3 father of PW2 along with Dhandapani, chased the accused. PW1 went near his son, namely Arun and lifted him and found that he had sustained injuries on the neck, on the rear side of the neck, right cheek etc and at that time, the crowd started assembling near the spot.
3.5. PW1, having found that his son Arun died on account of the injuries sustained by him due to the attack inflicted by the accused with lethal weapons, went to Hasthampatti Police Station and lodged a complaint under Ex.P1 to PW23, Inspector of Police, who, on receipt of the complaint, registered a case in Crime No.386/2008 for offences under Sections 147, 148, 341 and 302 IPC at 21.40 hours on 04.08.2008. The Printed F.I.R was marked as Ex.P39.
3.6. PW23, at about 21.40 hours visited the scene of occurrence and prepared the Observation Mahazar under Ex.P6 in the presence of PW6 and one Gopalakrishnan and also prepared a Rough Sketch under Ex.P40 and sent the body of the deceased to mortuary. PW23 effected the seizure of M.O.15- blood stained earth, M.O.16- sample earth, M.O.2- Weapon and M.O.13-motor cycle driven by the deceased and also a pair of chapels under Mahazar/Ex.P5 from the place of occurrence as soon the preparation of Observation Mahazar and Rough Sketch, PW23 conducted inquest on the body of the deceased between 6.30 to 9.00 hours on 05.08.2008 and prepared Inquest Report under Ex.P41. PW23 sent a requisition under Ex.P13 to PW19/Head Constable for handing over the same to PW18/doctor for conducting postmortem on the body of the deceased.
3.7. PW18, namely Dr.G.Panneerselvam, Tutor in Department of Forensic Medicine, Government Mohan Kumara Mangalam College and Hospital, Salem, commenced the postmortem at about 10.00 a.m. on 05.08.2008, found that rigour mortis was present all over the body of the deceased and noted the following injuries:
INJURIES:
1) A chopped wound over right side angle of eye extends upto the occipital protrudence measuring 20 CMs long and it is situated 169 CM from right foot.
2) A chopped cut injury over right temporal region measuring 18 CM long and it extends to the occipital protrudence and it is lies 1 CM below the previous injury and 167 CMs above right foot.
3) A chopped cut wound over right side cheek extends from zygomztic process to occipital protrudence and it is passes through right upper ear and upper ear shows severance and it lies 1 CM below the previous injury and 167 CMs above right foot.
4) A chopped cut injury over right side cheek and it is lies 1.5 CMs below the previous injury and extends upto back of neck measuring 18CMs long and it is lies 165 CMs above right foot.
5) A chopped cut injury over right side cheek and it is 1 CM below the previous injury and extends upto back of the neck below the occipital protrudence measuring 16 CMs long and it lies above 164 CMs right foot and it passes through the lower part of the right ear.
6) A severed chop wound over lower part of right side cheek and it lies 4.5 CMs below the previous injury and it is 160 CMs above the right foot with underlying mandibular bone get cut fracture.
7) An incised wound like laceration over front of neck extends on both sides and situated 7 CM above the supra sternal notch and 7 CMs below mid chin and 3 CMs below the previous injury. There is severance of both sides of sternoid mastoid process and neck marks and right and right difr carotid artery and jugular vein severed.
8) An incised wound over upper 3rd of right arm measuring 8x2.5x1 CM and it lies 5 CMs below the acromilan prominance and 22 CMs above right below.
9) An incised wound over lower 3rd of outer aspect of right arm measuring 8x2.5xBone deep with underlying muscle and vessels severed and it is situated 20 CMs below the right side acromian process and 10 CMs above right below.
10) A chopped cut injury over dorsum of right hand measuring 9.5x3xbone deep with underlying bones cut fracture and it is situated 3 CMs below the right wrist.
11) An incised 3 CMs like laceration measuring 3 x 0.75 x bone deep and it is situated 1 CM below the previous injury.
12) A stab injury over lateral wall of right side chest measuring 2.5x2x3 CMs at the level of 6th intercostal space and it is lies 124 CMs above the right foot and 22 CMs below the acromian prominance.
13) A vertical stab injury over the lateral wall of right chest at the level of right side hypochondrial region measuring 6x3xcavity deep and it is situated 115 CMs above right foot and 30 CMs below the acromian prominance.
14) A stab injury over right side hypochrondrial region 6 x 3 x cavity deep and it is lies 1.5 CMs medial to the previous injury.
15) A incised cut injury over right axillary region measuring 4x3xbone deep.
16) A incised wound over the lateral aspect of back of right side chest M-6x2x1 CMs and 124 from above right foot and 16 CMs below the acromian prominance.
17) A chopped wound over right supra scapula region 6.5x2x0.5 CMs and it is situated 6 CMs below acromian process.
18) A incised wound over outer aspect of upper 3rd of right thigh M 4x1.75x1 CM and it is situated 90 CMs above right foot and 67 CMs below the right acromian process.
19) A incised wound over upper part of thigh M-4x1.75x1 CM and it is situated 3.5 CMs lateral to previous injury and it lies 90 CMs above right foot.
20) A incised stab wound over the lower aspect of right gulteal region M-4x3x2 CMs and it lies 5 CMs lateral to the previous injury and it is lies 80 CMs above right foot.
21) A incised wound over lower aspect of right gluteal region M-4x3x2 CMs and it lies 5 CMs lateral to the previous injury and it is lies 80 CMs above right foot.
22) A incised like laceration over the inner aspect of upper 3rd of right thigh 4x1x0.5 CM and it lies 6 CMs medial to previous injury and 77 CMs above right foot.
23) A incised wound over left supra scapula region 3x2x1 CMs.
24) A incised cut injury over right infra scapula region M-4x1x0.5 CMs and it lies 3 CMs below the previous injury.
25) A incised cut injury over inferior aspect of scapular region 4x1x0.5 CMs and it lies 7.5 CMs below the previous injury.
26) A stab injury over top of left shoulder M-4x2x1 CMs
27) A incised wound over outer aspect of middle 3rd of left arm M-4x2x1 CMs and it is situated 18 CMs below the acromian process and 14 CMs above the left elbow.
28) A incised wound over left axillary region M-3x1x1 CMs.
29) A incised cut injury over left front of chest and it is lies below the nipple M-4x2x1 CMs and 129 CMs above the left foot.
30) A stab injury over lateral wall of left side chest M-5.25x2.5xcavity deep and it lies 127 CMs above the left foot and 23 CMs below the acromian prominance.
31) A stab injury over left side stomach M-3x1xcavity deep and it lies 4 CMs lateral to the umbilicus and 105 CMs above the left foot.
32) A chopped wound over the palm of left thumb M-7x3xBone deep with
33) A chopped wound over the left thumb and index finger 7x2xbone deep with underlying carpus land metacarpal bone fracture and ligature severed.
34) A chopped wound over left palm extend from 1 CM below the right little finger to the base of right thumb M-10x2xbone deep with underlying bones and vessels and ligatures severed.
35) A incised wound over dorsum of left hand M-2.5x1x0.35 CMs.
36) A injured wound over dorsum of right hand M-3x2x1 CMs.
37) A incised wound over inner aspect upper part of right thigh M-3x2x0.5 CMs.
O/D HEAD: Scalp contusion over fronts parieto occipital region with Lt temprolise muscle contused cranial valut: Cut fracture of Rt temporal bone extends upto posterior parietal bone 3 in Nos. and it lies 1 CM below the each fracture, communitted fracture of posterior parietal region on Rt. Side 3x2 CMs. Brain: Defuse sub dural and sub arachnoid haemorrhage over both cerebral hemispheres of brain. Base of skull: Communitted fracture of posterior aspect of Rt. parietal bone and Rt. side posterior cranial fossa 7x6 CMs.
NECK: Trachea sevirence at the level of fringeo tracheal region with sevirence of Rt. carotid and jugular veins and Rt. side sterno mastoid and ribben muscles hyoid bone: Intact.
O/D OF THORAX: No Ribs fracture Heart-normal in size chambers empty. Myocardium-normal. Coronaries-patent. Lungs-Stab injury over at the level of 5th intercostel space and extends upto lower border of lower lobe of Rt. lung 3x2x2 Cms Lt. Lung C/s Pale.
O/D ABDOMEN: stomach-45 Gms of partly digested cooked rice food. No specific smell. Mucosa-pae. Liver-incised wound response to the Inj.No.23 measuring 6x0.75x5 Cms. Spleen and incised wound over TII spleen 1.5x2.25x0.25 Cm. Kidneys-Both C/S Pale. Pelvis and spinal column intact.
PW18, on completion of postmortem, opined that the deceased would appear to have died of shock and hemorrhage due to multiple injuries sustained and the death would have occurred 12 to 16 hours prior to autopsy and also issued the Postmortem Certificate under Ex.P15.
3.8. PW19, received the body of the deceased after postmortem from PW18 and seized M.Os.8 to 10-clothes worn by the deceased and submitted the same to PW23 and entrusted the body to the relatives for performing final rites. PW23 examined PW5, Sekar @ Chandrasekar, PW7, PW8, Kasthuri, Rajagopal and recorded their statements and on 06.08.2008, he went to the scene of occurrence and examined PW14, Sampathkumar, Paramasivam, PW9, Appaz, Saritha, Palanisamy, PW4, Jayalakshmi, Balakrishnan, Rajalakshmi, Azrap Ali, Valarmathi and Jothi and recorded their statements. On 07.08.2008, PW23 had examined PWs.1 to 3 and also one Dhandapani, recorded their statements, also examined the witnesses, namely Bendu @ Selvam, PW11, PW12 and recorded their statements. PW10 voluntarily appeared before PW23 and gave his statement and it was also recorded. PW23, having found that the accused 1 to 5 had surrendered before the Court and were lodged at Central Prison, Trichy, took out an application for their police custody, got an order for police custody for two days and brought them to the police station.
3.9. On 13.08.2008, PW23 sent the Viscera through PW19/Head Constable for chemical analysis. He summoned the services of PW20/Village Administrative Officer of Hasthampatty Village as well as his menial and in their presence, examined the first accused, who voluntarily came forward to give confession statement and so also the accused 2 to 3. As per the admissible portion of the confession statement of accused 1 to 5, marked as Exs.P16, 18, 20, 22, 24 and 25, M.Os.18, 19, 20, 21, 22, 23, 24 and 25 were recovered under cover of Mahazars, namely Exs.P17, 19, 20, 21, 23 and 25 respectively. At about 13.30 hours on the same day, PW23 went along with PW20 and Ramesh to Rasipuram Old Bus Stand and seized M.O.23 under Mahazar/P26 on the identification of the first accused and the second accused also identified the two wheeler/M.O.24, which was seized under Ex.P27. The third accused identified the two wheeler/M.O.25, which was seized under Mahazar/Ex.P28 in the presence of same witnesses. PW23 examined PW20/Village Administrative Officer and his menial and recorded their statements and thereafter, the accused 1 to 5 were brought to the police station and sent for judicial custody. On 14.08.2008 at about 11.00 a.m., PW23 effected the arrest of the accused 8 and 9 and they voluntarily came forward to give independent confession statements one after the other, which were recorded in the presence of PW13 and another. On the basis of admissible portion of their confession statements under Exs.P35 and P36, he recovered M.Os.5 and M.O.7 under Mahazar Exs.P37 and P38 respectively. Tenth accused was arrested at 16.30 hours on the same day and his confession was also recorded in the presence of PW13 and another. Accused 8 to 10 were remanded to judicial custody on 17.07.2008. Accused 6 and 7 surrendered before the Judicial Magistrate No.1 Sankari on 20.08.2008 and on 26.08.2008 they were taken into police custody and they voluntarily gave independent confession statements, which were recorded in the presence of PW20 and another and on the basis of their confession statements, M.O.7 and another weapon was recovered under Mahazar and they were also sent to judicial custody on 28.08.2008.
3.10. PW23, submitted a requisition to the Chief Judicial Magistrate Salem for conducting Test Identification Parade as regards the accused 5 to 7 and also gave another requisition for recording the statement of the witnesses PWs.1 to 3 as well as one Dhandapani and the said statements were recorded by the Judicial Magistrate No.VI, Salem on 17.09.2008. On 19.09.2008, the Judicial Magistrate No.VI, Salem conducted Test Identification Parade for the accused 5 to 7. The proceedings of the Test Identification Parade were marked as Ex.P9. The statement of the Judicial Magistrate No.VI, Salem was also recorded. PW23 submitted a requisition in Ex.P30 for sending the material objects for chemical analysis and Chemical Analysis Reports were marked as Exs.P32 and P33 respectively and Serology Report was marked as Ex.P34. PW23 examined the Constable who took the body for postmortem and after completion, filed the charge sheet against the accused on 03.10.2008 for the commission of offences under Sections 120-B, 147, 148, 341, 302 r/w. 149 and 109 IPC before the Court of Judicial Magistrate No.III (Full Additional In-charge), Salem, who took cognizance of the offences in P.R.C.No.31/2008 and issued summons to the accused and on their appearance, furnished to them copies of documents under Section 207 CrPC. The committal Court having found that the case was exclusively triable by the Sessions Court, committed the same to the Court of Principal Sessions Court, Salem and the said Court, in-turn made over the same to the I Additional Sessions Judge, Salem, who took it on file in S.C.No.39/2009.
3.11. The Trial Court, on appearance of the accused, framed charges against all the accused for the offences as stated above and questioned them and they pleaded not guilty to the charges framed against them. The prosecution, in order to prove their case, examined PWs.1 to 23, marked Exs.P1 to P41 and also marked M.Os.1 to 25. On behalf of the accused DW1 to DW8 were examined and Exs.D1 to D7 were marked. Ex.C1 dated 14.01.2011 Witness summons to DW3 was marked and Ex.X1- Xerox copy of the Dogs Maintenance Register of Dogs Squad Police, Salem City and Ex.X2-Xerox copy of the out patient register maintained by Saraswathi Nursing Home, Salem was also marked. All the accused were questioned under Section 313(1)(b) CrPC with regard to incriminating circumstances made out against them in the evidence rendered by the prosecution and they denied it as false.
3.12. The trial Court, on consideration of oral and documentary evidence and other materials, had found that the accused 1 to 4 were guilty for the commission of offences under Sections 341 and 302 r/w. 34 IPC and imposed the sentence of imprisonment and fine as stated as above and acquitted them for rest of the charges and totally acquitted the accused 5 to 10. The accused 1 to 4, aggrieved by the conviction and sentence awarded by the trial Court, vide impugned judgment, had filed this appeal.
4. The learned counsel appearing for the appellants in Crl.A.No.635 of 2012/accused 1 and 4 has made the following submissions:
(i) The origin and genesis of the complaint under Ex.P1 is highly doubtful for the reason that Ex.P1/complaint lodged by PW1, father of the deceased, to PW23, was received and a case was registered at 21.00 hours on 04.08.2008 in Crime No.386/2008 for the alleged commission of offences under Sections 147, 148, 341 and 302 IPC and even prior to the lodging of the said complaint, Dog Squad attached to Salem City Police has reached the scene of crime at about 19.00 hours on 04.08.2008 and completed/concluded the search at about 21.00 hours, as evidenced under Ex.X1 coupled with the testimony of DW6- Dog Handler and the prosecution has miserably failed to explain as to how 2 hours prior to lodging of the complaint, the Dog Squad came to the spot.
(ii) Presence of Dog Squad two hours prior to lodging of the complaint would lead to the only inference that a complaint has been given much earlier to Ex.P1 and the said complaint has been totally burked/concealed by the prosecution and no explanation at all has been offered by PW23/Investigating Officer.
(iii) PWs.1 to 3 are closely related to the deceased and they made very many improvements from that of their statements recorded during investigation and attention of this Court was drawn to the testimonies of PWs.1 and 2 and contended that it was doubtful whether PW1 alone went to Hasthampatti Police Station and lodged the complaint or whether he was accompanied by PW2 also. Since there are many inconsistencies and embellishments in the testimonies of the eye witnesses, namely PWs.1 to 3, it is wholly unsafe to rely on their oral evidence and though it was pointed out during the course of arguments, trial Court did not take note of the same and committed a grave error in arriving at a finding of guilt against the accused 1 and 4.
(iv) As per Ex.P1/complaint, the names of the accused 1 to 4, 8 and 9 have been stated and specific overt acts have been levelled against accused 1, 2, 4 and some other accused and whereas in the course of oral evidence, PW1 has given a graphic details with regard to the specific overt act on the part of each of the accused.
(v) Though according to the prosecution, the deceased was indiscriminately cut, the said portion of the testimony coupled with the fact that even prior to Ex.P1, the Dog Squad came to the spot for the purpose of search, would clearly reveal that some thought process had gone into before lodging the complaint and moreover, Ex.P39/F.I.R reached the jurisdictional Magistrate Court only at about 11.00 p.m. and thus Ex.P1/complaint as well as Ex.P39/F.I.R, which came to be registered based on the said complaint, are highly suspicious.
(vi) Blood stained clothes of PWs.1 and 2 were not seized and sent for chemical analysis and though PW1 would admit that he did lift the body of his son/deceased and therefore, sustained blood stains in his clothes, non-seizure of clothes worn by PW1 would also create doubt as to his presence.
(vii) The independent witness, namely Dhandapani, who said to have gone with PWs.1 to 3, was not examined and as per the version of PWs.1 to 3 and other witnesses, the eighth accused had previous enmity and he only hatched the conspiracy to do away with the life of Arun/son of PW1 and the trial Court, having acquitted the accused 5 to 10 on the same set of evidence, ought not to have convicted the accused 1 to 4 and sentenced them and prays for their acquittal.
5. The learned counsel appearing for the appellant in Crl.A.No.675 of 2012/third accused, apart from adopting the arguments of the learned counsel appearing for the appellants in Crl.A.No.635 of 12/accused 1 and 4 would submit that PWs.1 to 3 would not have seen the occurrence for the reason that according to PW1, his son left the house at 06.45 p.m. in M.O.27/bike and 15 minutes thereafter, he left along with PWs.2 and 3 and Dhandapani and there is also discrepancy as to the person who accompanied PWs.2 and 3 in the motorcycle and it is also fortified by the fact that blood stained cloth worn by PW1 have not been seized. It is the submission of the learned counsel appearing for the appellant/third accused that in the light of the testimony of DW6 coupled with Ex.X1 as well as the evidence of PW6 who have spoken about the presence of Dog Squad much earlier to registration of the F.I.R., the manner in which the criminal law was set in motion on account of the alleged complaint given by PW1, marked as Ex.P1, creates lot of doubts in the case projected by the prosecution. It is also contended by the learned counsel appearing for the appellant/third accused that the alleged eye witnesses would state that they witnessed the occurrence due to illumination of light located near the temple and the incident took place at about 200 feet away from from the temple and therefore, if the light illumination was not there, they would not have seen the occurrence. It is also the submission of the learned counsel appearing for the appellant/third accused that PW2 is an Advocate practicing mainly in criminal side and due to his influence, prevailed upon the prosecution to falsely implicate the accused and the name of the third accused is also wrongly stated in Ex.P1/complaint and though no weapon was recovered on the basis of admissible portion of confession of the third accused, the prosecution sought to explain by putting the plea that the third accused dropped the weapon on the spot itself and fled away. In sum and substance, it is the submission of the learned counsel appearing for the appellant/third accused that in the light of the infirmities pointed out, the case of the prosecution became highly doubtful and in any event, the trial Court ought to have ordered benefit of doubt and acquitted all the accused.
6. The learned counsel appearing for the appellant in Crl.A.No.583 of 2013/second accused apart from adopting the arguments of the respective learned counsel appearing for the appellants in Crl.A.Nos.635 and 675 of 2012/accused 1, 3 and 4 and would contend that no specific overt act as against the second accused has been spoken out and during the course of testimony, the alleged eye witnesses made improvements by leaps and bounds and therefore, it is not safe to rely on their testimony to record the conviction and sentence imposed on the said accused and prays for his acquittal.
7. Per contra, Mr.M.Maharaja, learned Additional Public Prosecutor would contend that the deceased is none other than the son of PW1 and he was in a shocked state of mind for the reason that his daughter-in-law, namely PW4 was in an advanced stage of pregnancy and with the said state of mind, one cannot expect to come to the police station immediately and lodge a complaint and without any loss of time, PW1 went to Hasthampatti Police Station and lodged the complaint/Ex.P1 giving out the details and his testimony was also amply corroborated by other eye witnesses, namely PWs.2 and 3. It is the further submission of the learned Additional Public Prosecutor that though PWs.1 to 3 are closely related to the deceased, it cannot be the reason to disbelieve their evidence for the reason that they would be interested in pointing out the role played by the real accused and not any stranger, who are unknown to them and their oral evidence was also corroborate in material particulars of other evidences, especially the scientific evidence. It is further contended by the learned Additional Public Prosecutor that F.I.R. is not a substantive piece of evidence and it need not contain any graphic details and the accused are known to the eyewitnesses and through the illumination emanated from street lights located near the temple and the eyewitnesses were able to witness the occurrence and identified the accused easily as they are already unknown to the eyewitnesses and had cogently spoken about the overt acts on the part of each of the accused and coupled with the fact that the weapons used for the commission of the crime have also been recovered as per the admissible portion of the confession of the respective accused coupled with Chemical Analysis Report and Serology Report, the prosecution has amply established the case beyond any pale of doubt that it was only the accused 1 to 4, who had committed the heinous offence of murder and butchering of the son of PW1, with as many as 37 injuries. The learned Additional Public Prosecutor has drawn the attention of this Court to the impugned judgment and would submit that the trial Court having found that the evidence against rest of the accused are lacking and as against the accused 1 to 4, some of the offences have not been proved by the prosecution and they were acquitted and thus the Trial Court, on a fair and proper consideration of oral and documentary evidence and other materials, had rightly convicted and sentenced the appellants herein and prays for dismissal of these appeals.
8. This Court has paid it's best attention and anxious consideration to the submission made by the respective learned counsel appearing for the appellant and the learned Additional Public Prosecutor and also perused, scrutinized and analyzed the oral and documentary evidence and other materials as well as original records.
9. The trial Court found that the motive aspect and the fact that accused 1 to 4 had indiscriminately cut the deceased/Arun by causing as many as 37 injuries and as a consequence, he died on the spot, have been proved beyond any reasonable doubt. The trial Court further found that from the evidence of PWs.1 to 3, the prosecution was able to prove that the accused 1 to 4 waylaid the deceased and the accused 1 to 3, armed with Veecharuval, repeatedly attacked the deceased and caused his death on the spot. The trial Court further found that insofar as charging the accused 1 to 4 for the commission of offences under Sections 120-B r/w. 302 IPC, 148 and 506(ii) IPC, not found them guilty and totally acquitted the rest of the accused. Insofar as the presence of sniffer dog in the scene of occurrence, the trial Court believed the testimonies of PW23/Investigating Officer and found that only on his requisition, the sniffer dog had reached the spot and having found that the testimonies of eye witnesses are trustworthy and believable, has reached the conclusion of guilt on the part of the accused 1 to 4 and sentenced them accordingly.
10. The moot question arise for consideration is whether the prosecution was able to prove the guilt on the part of accused 1 to 4 beyond any reasonable doubt and the conviction recorded and the sentence awarded by the trial Court is sustainable?
11. PW1, father of the deceased, lodged the complaint/Ex.P1 on the file of Hasthampatti Police Station, based on which, PW23/Inspector of Police, registered the F.I.R/Ex.P39 at about 21.00 hours on 04.08.2008 and in Ex.P1/complaint, PW1 has spoken about previous enmity between his son and eighth accused and their men, namely accused 1, 2, 3 and 4 and more particularly against the accused 8 and 4. Insofar as the overt act on the part of the accused are concerned, PW1 in Ex.P1/complaint would state that at about 07.15 hours near Pillayar temple, he witnessed the murder of his son through the illumination of street lights by accused 1, 2 and 4 and also some others, who were also armed with lethal weapons and they were chased by PWs.2 and 3. PW1 in the chief examination would depose that his son was riding motor cycle and he and others were following them and at that juncture, accused 1 to 4 restrained him and repeatedly attacked and at that time light was burning in the temple as well as in the nearby street. In the later portion of chief examination, he has given details of the overt acts on the part of accused 1 to 7 and in the cross examination, PW1 would state that the occurrence took place at about 10 minutes and except he, PWs.2,3 and Dhandapani, nobody was present and immediately after the occurrence, people started assembling there and he would further depose that while he lifted his son after the attack, he got blood stains in the cloth worn by him and written half of the complaint in the scene of occurrence itself and thereafter, written the other half near the entrance of the police station. PW1 also explained that his daughter-in-law was in advanced stage of pregnancy, she became unconscious and was admitted in Saraswathi Nursing Home, Salem and thereafter, he lodged the complaint and would also admit that as the accused 1 and 8 are distantly related to him. In the cross examination done on behalf of the accused 1 and 2, PW1 would depose that as the pillion rider, he saw the occurrence and the accused, armed with weapons, also threatened him with dire consequences and police has seized blood stained cloth worn by him in the scene of crime and he was not accompanied by PW2 at the time of giving complaint and it was also deposed by PW1 that sniffer dog came to the spot after the arrival of police and also deposed that he reached the police station at about 8.40 p.m. and met the Inspector of Police, who asked him to give a written complaint and therefore, he came outside and completed the remaining part of the complaint.
12. PW1 would further depose that so far as the third accused is concerned, he did not name him specifically and during the course of investigation, he did not state that the third accused cut his son on the head and dropping of the weapon in the scene of crime and would further depose that insofar as the seizure of blood stained cloths worn by him, no acknowledgment was given and it was denied by PW1 that even at about 8.30 p.m. the police along with Dog Squad came to the scene of occurrence and he went afterwards only. PW1, in the cross examination done on behalf of the accused 3 and 4, would depose that seven persons surrounded his son and indiscriminately cut him and he identified the accused 3 and 4 in the Test Identification Parade and denied the suggestion that he acted as per the instructions of PW2.
13. PW2 is the another eye witness and he is the co-brother of the deceased and in the chief examination, he deposed that at about 7.00 p.m. on 04.08.2008, his co-brother (deceased) went out in a motorcycle. Thereafter, in his two wheeler, PW1 sat as a pillion and in the two wheeler of Dhandapani, his father-in-law/PW3 sat and when they were near the temple, he saw the accused 2, 3, 4 and 6 indiscriminately cut Arun/son of PW1 and he and PW1 asked them not to attack and they threatened them with dire consequences and for the purpose of lodging the complaint, he went along with PW1 and PW1 lodged the complaint. In the cross examination done on behalf of the fifth accused, PW2 would depose that the complaint was written in the scene of occurrence itself and PW1 alone went to the police station and lodged the complaint and it was also informed by PW1 to him telephonically and he was not aware as to the time of arrival of the police. PW2 would further depose that the cloth worn by PW4 as well as by him got blood stained and he had washed it and was not aware whether the blood stained clothes of PW1 were seized or not and he had seen the occurrence at about 7.25 p.m. PW2 denied the suggestion that the complaint prepared by him was signed by PW1. In the cross examination done on behalf of the accused 8 and 9, PW2 denied the suggestion that there is no such occurrence as alleged by them and after due and proper consultation only, appropriate complaint was prepared and given and also denied the suggestion that he, PW3 and Dhandapani were not at all present at the scene of occurrence. In the cross examination done on behalf of accused 1 to 10, PW2 would depose that apart from PWs.1 to 3 and Dhandapani, nobody was present at the time of commission of crime and on seeing them, the accused attempted to flee away and he was present in the scene of occurrence at about 7.45 p.m. and that that time, police have not come and he did not note the covering of the incident by visual media. When PW2 was questioned that though he is a lawyer, he did not lodge the complaint, he answered by saying that in the scene of crime, he was present not as a lawyer, but as an ordinary man and was nursing the grievance due to the murder of his co-brother. PW2 was also questioned as to the presence of police and Dog Squad at 8.45 p.m. and he answered by saying that he was not aware of the same. PW2 would further admit that during the course of recording statement under Section 164 CrPC, he did not state specifically as to the overt acts on the part of each of the accused and also the specific overt act on the part of the first accused. It was further deposed by PW1 that he has seen the occurrence at a distance of 100 feet and denied the suggestion that the deceased was also having some other enemies.
14. PW3 is the father-in-law of PW2 and also an eye-witness and in the chief examination, has corroborated the testimonies of PWs.1 and 2 and would further depose that at 7.15 p.m., deceased was proceeding in a motorcycle and at that time, accused 1, 2 and 3, one Subburaj and Madesh armed with deadly weapons, repeatedly cut him and the handle of the weapon held by the third accused has fallen down and the eighth accused, utilizing the services of the accused 1 and 2, committed the murder and he alone was instrumental and he was aware of the identification of the accused, but was not aware of some of the names. In the cross examination done on behalf of accused 1 and 2, he would depose that from a distance of 100 feet, he had seen the occurrence and from the house of PW1, the scene of occurrence can be reached within 5 minutes and from the place in which he saw the occurrence, within a distance of 45 foot, there was illumination of light from the streetlight and also through the light emanated from the headlight of the bike, he had witnessed the occurrence. In the cross examination done on behalf of accused 3 and 4, PW3 would depose that accused 1, 3 and 4 belong to Udayar community and he is an illiterate and denied the suggestion that he was having poor eye sight and therefore, could not have witnessed the occurrence. PW3 would further depose that he had not noted the presence of police and was not aware as to who has written Ex.P1/complaint and deposed that he along with Dhandapani followed Arun/deceased in a motorcycle.
15. PWs.4 and 5 are the relatives of PW1 and deceased and they have spoken about the motive aspect. PW6 is the witness to the recovery of articles in the scene of occurrence and PW7 is the relative of PW1 and he has spoken about the motive aspect against the accused 1, 2, 4, 5, 9 and 10. PW8 is also an eye witness and he has turned hostile and so also PW9.
16. PW11 would depose that he was a painter by profession and at about 7.30 p.m. on 04.8.2008, they were waiting near MTS Nagar junction near a light post and at that time, from the direction of MTS Nagar, 3 motorcycles came and one of the motorcycle was driven by the first accused and the person sitting on the middle was holding a patta knife and the person sitting on the last was holding Veecharuval and blood stain was found in the Veecharuval. In the cross examination, PW11 denied the suggestion that he did not saw the first accused and others coming in a motorcycle and holding lethal weapons.
17.PW17/Judicial Magistrate, who conducted Test Identification Parade and also recorded statements under Section 164 CrPC, would depose that PWs.1, 2, 3 and Dhandapani participated in the Test Identification Parade. In the cross examination, PW17 would depose that when she questioned the accused, all the three accused, namely the accused 1, 6 and 7 told her that their photographs appeared in the newspaper and the accused were already shown to the witnesses, who participated in the Test Identification Parade. The contradiction as to the statements recorded under Section 164 CrPC were also elicited on PW17 and she would depose that PW1, in his statement, has stated that he along with PW2 went and lodged the police complaint and did not specifically state about the overt acts on the part of each of the accused.
18. PW18/Doctor would depose that the deceased had sustained 37 injuries and the cause of death was due to shock and hemorrhage. PW19/Head Constable and PW20/Village Administrative Officer were examined for the arrest and recovery of incriminating articles from the accused 1 to 5. In the cross examination, PW19 did not made any entry in the general diary as to the summons issued by PW23/Investigating Officer. PW21/Doctor had spoken about the simple injury sustained by the third accused.
19. PW23 is the Investigating officer, who had registered the F.I.R. on the basis of the complaint/Ex.P1 given by PW1. In the cross examination done on behalf of the fifth accused, PW23 denied the suggestion that the first accused handed over the blood stained cloth and his presence in the scene of occurrence between 07.30 to 08.00 p.m. and would further depose that after receipt of the complaint, he came to the scene of occurrence at about 21.40 hours. In the cross examination, PW23 would depose that PW1, during the course of examination, did not state that accused 1 to 5 were henchmen of the eight accused and either in the complaint or in the F.I.R., name of the third accused was found. In the cross examination done on behalf of the accused 1, 2, 6 & 10, PW23 would depose that the complaint was lodged at about 21.00 hours on 04.08.2008 and PW2 during the course of investigation has stated that he took PW1 to the police station. When Ex.P1/complaint was shown to him, PW23 deposed that the complaint was continuously written and not by para by para and prior to 9.00 p.m. on 04.08.2008, he was not aware of the occurrence and the distance between the scene of occurrence and police station is 1 km. PW23 would further depose in the cross examination that at about 9.40 p.m. sniffer dog came to the spot and DW6, in the statement recorded during the course of investigation, has stated that he came to the spot at about 22.00 hours and denied the suggestion that time was indicated in the statement and further denied the suggestion that even at 08.30 p.m., services of Dog Squad were summoned and was not aware of entry made in the Register maintained by Dog Squad as to their presence at 8.30 p.m. PW23 further deposed that PWs.1 and 2 did not state in their statements recorded during the course of investigation as to the specific overt acts on the part of the accused. PW23 denied the suggestion that photographs of the accused were published in newspapers even prior to Test Identification Parade and their identity were known to the witnesses and further denied the suggestion that even at 7.30 p.m., he became aware of the commission of crime and in consultation with PW1, the case was foisted against the accused.
20. It is a well settled proposition that while appreciating the evidence of witness, minor discrepancies on trivial matters, which do not affect the core of the prosecution's case, may not prompt the Court to reject the evidence in its entirety. Irrelevant details which do not in any way corrode the credibility of a witness cannot be labelled as omissions or contradictions. The Court, after exercising care and caution and sifting through the evidence to separate truth from untruth, exaggeration and improvements, can come to a conclusion as to whether the residuary evidence is sufficient to convict the accused and an undue importance should not be attached to omissions, contradictions and discrepancies which do not go to the heart of the matter and shake the basic version of the prosecution witness for the reason that mental capabilities of a human being cannot be expected to be attuned to absorb all the details, minor discrepancies are bound to occur in the statements of witnesses. [See State of U.P. v. M.K.Anthony (1985) 1 SCC 505, State of Rajasthan v. Om Prakash- (2007) 12 SCC 381, State of Saravanan -(2008) 17 SCC 587 and Prithu v. State of H.P. - (2009) 11 SCC 588].
21. It is also a well settled position of law that FIR itself is not the proof of a crime, but is a piece of evidence which could be used for corroborating the case of the prosecution and it need not be an encyclopaedia of all the facts and circumstances on which the prosecution relies and it only has to state the basic case. An accused who has not been named in the FIR, but to whom a definite role has been attributed in the commission of the crime and when such role is established by cogent and reliable evidence and the prosecution is also able to prove its case beyond reasonable doubt, such an accused can be punished in accordance with law, if found guilty. Every omission in the FIR may not be so material as to unexceptionally be fatal to the case of the prosecution and various factors are required to be examined by the Court, including the physical and mental condition of the informant, the normal behaviour of a man of reasonable prudence and the possibility of an attempt on the part of the informant to falsely implicate an accused and the Court has to examine these aspects with caution and required to examine such challenges in the light of the settled principles while keeping in mind as to whether the name of the accused was brought to light as an afterthought or on the very first possible opportunity. [See Jitendra Kumar v. State of Haryana (2012) 6 SCC 204].
22. In Meharaj Singh v. State of U.P. [(1994) 5 SCC 188], it was observed in para 12 that with a view to determine whether the FIR was lodged at the time it is alleged to have been recorded, the Courts generally look for certain external checks. One of the checks is the receipt of the copy of the FIR, called a special report in a murder case, by the local Magistrate. If this report is received by the Magistrate late, it can give rise to an inference that the FIR was not lodged at the time it is alleged to have been recorded, unless, of-course, the prosecution can offer a satisfactory explanation for the delay in dispatching a receipt of the copy of the FIR by the local Magistrate.... The second external check equally important is the sending of the copy of the FIR along with the dead body and its reference in the inquest report.
23. The Hon'ble Supreme Court of India in Anil Rai v. State of Bihar [(2001) 7 SCC 318] in para 20 observed that where the FIR is shown to have actually been recorded without delay and investigation started on the basis of the FIR, the delay in sending the copy of the report to the Magistrate cannot by itself justify the conclusion that the investigation was tainted and the prosecution unsupportable.
24. In Animireddy Venkata Ramana and Others v. Public Prosecutor, High Court of Andhra Pradesh [(2008) 2 SCC (Cri) 600], in paras 13 to 14, it is observed that in the first information report all the accused persons were named and overt acts on their part were also stated at some length and each and every detail of the incident was not necessary to be stated and the first information report is not meant to be encyclopaedic and while considering the effect of some omissions in the first information report on the part of the informant, a Court cannot fail to take into consideration the probable physical and mental condition of the first informant and one of the important facts which may weigh with the Court is as to whether there was a possibility of false implication of the appellants..... Once, however, a first information report is found to be truthful, only because names of some accused persons have been mentioned, against whom the prosecution was not able to establish its case, the entire prosecution case would not be thrown away only on the basis thereof. In para 32 of the said decision it is observed that a Court in the process of its job of appreciation of evidence may rely on a statement of a witness or may not. It may even accept the evidence of a witness in part. But, without taking recourse to the right methodology of appreciation of evidence, no Court of law should jump to the conclusion that a prosecution witness is wholly untrustworthy only because his evidence has not been corroborated by other witnesses and further observed in para 39 that non-production of the general diary by itself cannot be a ground for disbelieving the entire prosecution case particularly when apart from a solitary statement made by a witness in his note, no other evidence has been brought on record to show that statement of any witness had been recorded under Section 161 CrPC.
25. In Sukhdev Yadav and Others v. State of Bihar [2001 SCC (Cri) 1416], it has been held as follows:
It is now well settled that the Court can sift the chaff from the grain and find out the truth from the testimony of the witnesses. The evidence is to be considered from the point of view of trustworthiness and once the same stands satisfied, it ought to inspire confidence in the mind of the Court to accept the stated evidence There would hardly be a witness whose evidence does not contain some amount of exaggeration and embellishment. Sometimes there is a deliberate attempt to offer the exaggerated evidence and sometimes the witnesses in their over anxiety to do better from the witness box detail out an exaggerated account.
26. This Court, keeping in mind the principles/ratios laid down by the Hon'ble Supreme Court of India in the above cited decisions, has carefully scanned and analyzed the oral and documentary evidence.
27. Incidental question arises for consideration is as to whether there was an earlier information apart from Ex.P1/complaint given by PW1 to PW23, based on which, case was registered on 21.00 hours on 04.08.2008 ?
28. DW6 was the Handler of Sniffer Dog -Jeena and in the chief examination, he would depose that on 04.08.2008 at about 19.05 hours, he received the information and took the sniffer dog to the scene of occurrence and it was also entered in the Register maintained by him, marked as Exs.X1 and at about 19.10 hours, he cleaned the dog and boarded in the vehicle at about 19.15 hours and the dog, after sniffing the patta knife, handle of the knife and the blood stained cloth put on the knife and the blood, ran up to Thendral Nagar, Adaikala Nagar, TVS Lakshmi Sundaram Nagar and thereafter went to Arun Nagar junction and stopped and the dog ran for about 100 meters from the scene of occurrence and at about 21.00 hours, they returned to the office. In the cross examination done by Mr.P.Dhanasekaran, learned Additional Public Prosecutor, DW6 would depose that before lodging the dog in the kennel, it will be bathed and it may take about one hour and he told PW23/Investigating Officer about the said time and further deposed that the sniffer dog ran up to Thendral Nagar, Adaikal Nagar, TVS Lakshmi Sundaram Nagar and Arun Nagar junction and as to the lodging of the sniffer dog in the kennel.
29. PW1, in the cross examination, deposed that the sniffer dog came to the scene of occurrence after the arrival of the police. PW23/Investigating Officer, in the cross examination, has denied the suggestion that he came to the scene of occurrence between 7.30 and 8.00 p.m. and deposed that after receipt of the complaint and registration of the case, came there at about 21.40 hours. In the cross examination done on behalf of the accused 1, 2, 6 and 10, PW23 would depose that at about 9.40 p.m., sniffer dog came to the scene of occurrence and DW6, during the course of investigation had stated that he came to the spot at about 22.00 hours and denied the suggestion that in the statement recorded from DW6 under Section 161 CrPC, time was answered. PW23 further denied the suggestion that the sniffer dog came to the spot even at about 8.30 p.m. and further that he was not aware as to the entries made in the relevant register as to the utilization of the services of the sniffer dog even at about 8.30 p.m. and once again denied the suggestion that he was present in the scene of occurrence at about 8.00 p.m.
30. It is the submission of the learned counsel appearing for the appellants in Crl.A.No.635/2012 that in the light of the testimony of DW6 coupled with Ex.X1, sniffer dog was present much anterior to the registration of the FIR at 21.00 hours on 04.08.2008 and the said information has been deliberately burked by the prosecution and after discussion and consultation with PW2, complaint was preferred and lodged on the file of Hasthampatti Police Station and case was registered at about 21.00 hours and that is why, FIR was belatedly dispatched to the jurisdictional Magistrate and he also pointed out improvements made by the eye witnesses during the course of their evidence and would urge that on account of the above said serious lapse and the non-explanation of PW23/Investigating Officer as to the presence of sniffer dog even prior to the registration of the case, the genesis of the occurrence became highly doubtful and the very foundation laid by the prosecution got weakened and the trial Court having acquitted rest of the accused, ought to have acquitted the first accused also.
31. The respective learned counsel appearing for the other accused, apart from adopting the said arguments, would further urge that tainted investigation has been done at the behest of PW2, an Advocate and the discrepancies pointed out in the form of answers elicited in the cross examination of PWs.1 to 3 and PW23, had amply sustained their defence that the accused were falsely implicated and therefore, they deserve to be acquitted honourably.
32. A perusal of Ex.P1 would disclose that the Magistrate had signed the receipt of the said complaint by dating it as 04.08.2008, but did not note the time. However, in the FIR, marked as Ex.P39, time was noted at about 11.00 p.m. As per the FIR, occurrence took place at about 19.15 hours on 04.08.2008 and complaint was registered at 21.00 hours on the same day (9.00 p.m.) and F.I.R has reached the jurisdictional Magistrate within 2 hours. Therefore, it cannot be said that after due deliberation and discussion, FIR came into being, falsely implicating the accused.
33. No doubt, the testimony of DW6 coupled with Ex.X1 would show that services of sniffer dog were summoned at about 19.00 hours and DW6 returned at 21.00 hours. Unfortunately, the learned Additional Public Prosecutor have not effectively cross examined DW6. PW23, in his cross examination, was very categorical that only at 9.40 p.m. on 04.08.2008, sniffer dog came to the scene of occurrence and DW6, in the statement recorded under investigation, had stated that he came to the spot at 22.00 hours on that day and denied the suggestion that the said time was answered in the said statement. It is very pertinent to point out at this juncture that attention of PW23 was not drawn to Ex.X1 and no answer as to the said document had been elicited and so also the contradiction between his statement recorded during investigation and his oral evidence.
34. In the light of the reasons assigned above, this Court is of the opinion that the testimony of DW6 coupled with Ex.X1 cannot be believed. Lapses on the part of learned Additional Public Prosecutor in not effectively cross examining DW6 have not affected the core of the prosecution case for the reason that the testimonies of eyewitnesses are cogent and trustworthy and corroborate with each other on all material particulars and also supported by recovery of incriminating articles and scientific evidence.
35. The murder of the deceased took place at about 7.15 p.m. on 04.08.2008 in a gruesome manner and within a span of two hours, one of the eyewitnesses namely, father of the deceased promptly lodged the complaint at 21.00 hours at 04.08.2008 and FIR has reached the jurisdictional Magistrate Court without any loss of time and in the complaint, the names of the accused 1, 2 and 4 finds place.
36. PW1 in the course of testimony, no doubt, made certain improvements and as observed by the Hon'ble Supreme Court of India in the decision in Sukhdev Yadav and Others v. State of Bihar [2001 SCC (Cri) 1416] there would hardly be a witness whose evidence does not contain some amount of exaggeration and embellishment and sometimes there is a deliberate attempt to offer the exaggerated evidence and sometimes the witnesses in their over anxiety to do better from the witness box detail out an exaggerated account and the Court can sift the chaff from the grain and find out the truth from the testimony of the witnesses. Therefore, leaving out the exaggerated version of eye witnesses coupled with the fact that identification of the appellants/accused in the Test Identification Parade as well as PW11, who saw the first accused riding motor cycle with two persons armed with blood stained weapons, this Court is of the view that the prosecution had sustained it's case insofar as the appellants are concerned.
37. No doubt, there are discrepancies as to whether PW2 accompanied PW1 or not, but they have not discredited the testimonies of the eye witnesses especially PW2. Motive aspect has been amply proved through PWs.1 to 5 and 7 and even otherwise, the case of the prosecution rests upon the eye witnesses account and thereby, motive would pale into significance as against the accused 1 to 4 and their role has also been spelt out in Ex.P1/complaint coupled with the testimonies of the eye witnesses and though they are closely related to the deceased, their evidence is trustworthy and believable and discrepancies pointed out are trivial in nature. Scientific evidence adduced by the prosecution would also amply establish the fact that it was a homicidal violence and pursuant to the admissible portion of the confession statement given by the appellants/accused, weapons were recovered and subjected to chemical analysis and blood stains found to be of human blood.
38. The trial Court, on a careful appreciation of oral and documentary evidence and other materials, had acquitted rest of the accused and the State did not prefer any appeal against their acquittal. The lapses/infirmities/omissions pointed out by the respective learned counsel appearing for the appellants did not affect the core of the prosecution case. The infirmities pointed out on behalf of the appellants did not weaken the foundation laid by the prosecution for the reason that the complaint was promptly lodged without any loss of time and also reached the jurisdictional Magistrate Court within two hours from the time of registration of the FIR, coupled with other evidence.
39. This Court, on an independent application of mind and careful scrutiny of the entire materials, is of the considered view that there is no error apparent, irregularity or illegality in the reasons assigned by the trial Court for convicting accused 1 to 4.
40. In the result, these criminal appeals are dismissed confirming the judgment of conviction and sentence passed against the appellants/accused 1 to 4 dated 17.08.2012 made in S.C.No.39 of 2009 by the Court of I Additional Sessions Judge, Salem. The sentences imposed on the appellants were suspended, pending disposal of these appeals and therefore, bail bonds executed by them shall stand cancelled/terminated. The respondent/Investigating Officer as well as the trial Court are directed to take expeditious steps to secure the custody of the appellants/accused for the purpose of undergoing the remaining period of sentence.
(S.N.J.,) (M.S.N., J.)
30.03.2016
Index : Yes / No
Internet : Yes / No
jvm
To
1.The Court of I Additional Sessions Judge,
Salem.
2.The Court of Judicial Magistrate No.III,
Salem.
3.The Court of Chief Judicial Magistrate,
Salem.
4.The Inspector of Police,
Hasthampatti Police Station,
Salem District.
5.The Public Prosecutor,
Madras High Court, Chennai.
S.NAGAMUTHU, J.,
and
M.SATHYANARAYANAN, J.
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Common Judgment in
Criminal Appeal Nos.635 of 2012, 675 of 2012
and 583 of 2013
30.03.2016