Madras High Court
Muralisamy @ Muralidharan And Ors. vs State By Inspector Of Police on 21 December, 2006
Author: A.C. Arumugaperumal Adityan
Bench: A.C. Arumugaperumal Adityan
JUDGMENT R. Balasubramanian, J.
1. All the fourteen accused in S.C. No. 105 of 2001 on the file of Additional Court of Sessions (Fast Track Court No. II), Salem are before this Court in these multiple appeals questioning their conviction. The conviction includes offences under Sections 302 direct and 302 with the aid of 149 I.P.C. Heard Mr. V. Gopinath, learned Senior Counsel appearing for the appellantS in C.A. No. 1058 of 2002 and C.A. No. 1360 of 2002; Mr. S. Ashok Kumar, learned Senior Counsel appearing for A.2 in C.A. No. 1462 of 2002; other learned Counsel on record for the other appellants in these multiple appeals and Mr. C.T. Selvam, learned Additional Public Prosecutor for the State.
2. The occurrence is shown to have taken place on the intervening night of 25.10. and 26.10.2000 at about 01.30 hours, during which time two persons were done to death and P.W.1 came to be injured. The charges are as hereunder:
147 I.P.C. - A.1 148 I.P.C. - A.2 to A.14 342 I.P.C. - A.1 to A.14 307 I.P.C. - A.5, A.7 and A.14 342 and 307 r/w 149 I.P.C. - A.1 to A.14 302 I.P.C. - A.3, A.4, A.6 and A.14 302 r/w 149 I.P.C. - A.1 to A.14 302 I.P.C. - A.2, A.5, A.7, A.8, A.10 and A.11 302 r/w 149 I.P.C. - A.1 to A.14 506 (ii) r/w 149 I.P.C. - A.1 to A.14.
The conviction of the accused is under all the charges. To prove their case, the prosecution examined P.Ws.1 to 16 and marked Exs.P.1 to P.49 and M.Os.1 to 41. The defence neither let in any oral nor documentary evidence.
3. P.Ws.1 to 5 and 9 are examined as eye witnesses to the crime, out of whom, P.W.4 turned hostile. P.W.1 knows Punk Kanagaraj (deceased No. 1) and Sundaravelan (deceased No. 2). At the occurrence time, P.Ws.1,2,3, deceased No. 1 and deceased No. 2 were standing and talking in a public place and at that time a red colour Yamaha Motor-cycle came and stopped opposite to the saloon near Chinnappa Gounder colony at Kasakkaranur. P.W.5, who had been a convict prisoner was acquitted and a few days prior to the occurrence, he came out of jail. P.W.5 was received by P.W.4, deceased No. 1 and deceased No. 2. The first accused was not happy in the way P.W.5 was received by the above mentioned persons. This was conveyed by deceased No. 2 to others. A.3, A.6, A.4, A.8, A.11, A.14, A.13, A.5, A.7 and A.9 circled P.W.1, P.W.3, deceased No. 1 and deceased No. 2. Deceased No. 2 was attacked by A.3, A.6, A.4 and A.14 with various weapons; deceased No. 1 was attacked by A.2, A.10, A.11 and A.8 with various weapons and P.W.1 himself was attacked by A.5, A.7 and A.14 using various weapons. A.1 wielding a log of wood was intimidating the witnesses not to near them. A.2 and A.13 were similarly intimidating, each armed with a knife. The shop owners pulled down their shutters. Then proclaiming that the victims have died, the accused left. P.W.1 was taken to the Government Head Quarters Hospital at Salem. M.O.1 is the motor-cycle, in which the accused came. In the hospital, P.W.16 examined him and recorded his statement. The said statement was read over to P.W.1, in which he had signed. Ex.P.1 is the said complaint.
4. P.W.16 is the investigating officer. Early in the morning on 26.10.2000, he received information over telephone from the Government Head Quarters Hospital, Salem about the incident and he accordingly proceeded to the hospital, where he collected the medical intimation for P.W.1 and death intimation for deceased No. 2. Ex.P.35 is the death intimation. Then P.W.16 proceeded to the ward, where by examining P.W.1 recorded his statement. P.W.16 came back to the police station and registered that complaint in his police station Crime No. 1181 of 2000 under Sections 147, 148, 341, 307, 302 and 506 (ii) I.P.C. and prepared Ex.P.36, the printed First Information Report. He sent the express records to the Court as well as to the higher officials and then reached the crime scene at about 6.30 a.m. P.W.14 is the Head Constable in the investigating police station, who carried the Express Records to the Court as well as to the higher officials. In the presence of P.W.7 and P.W.8, P.W.16 prepared Ex.P.11, the Observation Mahazar and Ex.P.37 the rough sketch. At 7.30 a.m. in the presence of the same witnesses, from the crime scene, he recovered blood stained earth and sample earth under a Mahazar. At 8.00 a.m. in the spot itself in the presence of panchayatdars and witnesses, he conducted inquest over the dead body of Punk Kanagaraj (deceased No. 1) and prepared Ex.P.38, the inquest report. Then he sent the dead body to the Salem Government Head Quarters Hospital for post-mortem with a requisition through a police constable.
5. P.W.12 is the police constable, who accompanied the dead body of Punk Kanagaraj (deceased No. 1) along with Ex.P.31 to the Government Hospital for post-mortem. After post-mortem he removed M.Os.19 to 22 from the dead body and handed over the same to the investigating officer, who recovered it under form 95. P.W.15 is the Doctor, who did post-mortem on the dead body of deceased No. 1 at about 12.20 p.m. on 26.10.2000. During post-mortem, he found various symptoms as noted by him in Ex.P.33, the post-mortem report. The symptoms noted by him are as hereunder:
Injuries:
1) 6 gaping cut injuries presenting as a single injury present on the front of middle of neck 18 c.m. x 7 c.m. x bone deep. All the structures like hyoid bone, thyroid cartilage, trachea, muscles, blood vessels, cervical vertebra C3, 4, 5 are found cuts. The head is found almost cut except for a tag of skin and muscles on the back.
2) An oblique gaping cut injury on the right side of mouth 5 cm x 1 cm x 0.5 cm.
3) Two oblique gaping cut injuries on the lower jaw aspect on right side measuring 3 x 1 x 1/2 cm and 2 x 1 x 1/2 cm.
4) A gaping cut injury present on back of right index finger 2.5 cm x 1 cm x bone deep.
5) A gaping cut injury present on left clavicle x2 x 1 cm x bone deep.
6) A linear superficial incised wound over right shoulder 7 cm in length.
7) A linear superficial incised wound, over left shoulder 6 cm in length.
8) A gaping cut injury present above right knee 3 cm x 1 cm x 0.5 cm.
9) A gaping cut injury below right knee 2 x 1 cm x 0.5 cm. The above cut injuries are ante mortem in nature.
Other finding:
Pleural Peritoneal cavities empty.
Heart: Empty, Lungs, Liver, Spleen, Kidneys C/s.pale.
Stomach 50 gms. Partly digested greyish Chyme present.
No smell, mucosa pale.
The Doctor opined that death would have occurred 6 to 18 hours prior to autopsy, as a result of shock and haemorrhage due to multiple cut injuries. He also deposed that the weapons shown to him in court could have caused the injuries found on the dead body.
6. At 11.00 a.m. P.W.16 conducted inquest over the dead body of Sundaravelan (deceased No. 2) in the hospital in the presence of panchayatdars and witnesses. Ex.P.39 is the inquest report. Then he sent a requisition through P.W.13, the police constable to the hospital for conducting post-mortem on the dead body of deceased No. 2. P.W.13 accordingly took Ex.P.32, the requisition to the hospital for conducting post-mortem on the dead body of deceased No. 2. After post-mortem he removed M.O.23 from the dead body and handed over the same to the investigating officer. P.W.15 did post-mortem on the dead body of deceased No. 2 at 1.30 p.m. on 26.10.2000, during which time he found various symptoms as noted by him in Ex.P.34, the post-mortem report. The symptoms noted therein are as hereunder:
Injuries:
1) A gaping oblique cut injury present on left side of upper part of neck measuring 15 cm x 5 cm x bone deep. All the muscles blood vessels are found cut, cut fracture of C3-C4 vertebrae present.
2) A gaping cut injury present on lower 1/rd of right forearm measuring 8 cm x 3 cm x bone deep with cut fracture of radius and ulna present.
3) A gaping cut injury present on back of right hand 5 cm x 1 cm x 1/2 cm.
4) A gaping cut injury present on right index finger 3 x 1 x 1/2 cm.
5) A gaping cut injury present on left index finger 2 cm x 1 cm x 1/2 cm.
6) An abrasion over left big toe 3 cm x 1 cm.
The above injuries are ante mortem in nature.
Other findings:
Plueral peritoneal cavities empty. Heart empty, Lungs, Liver, Spleen, Kidneys, C/s. Pale, Stomach empty. No smell Mucosa, Pale intestines normal. Brain C/s. pale.
The Doctor opined that death would have occurred 6 to 18 hours prior to autopsy as a result of shock and haemorrhage due to multiple cut injuries. He had also deposed that the weapons shown to him in court could have caused the injuries found on the dead body. Injury No. 1 found on the dead body of deceased Nos.1 and 2 are on vital parts of the human body and the rest of the injuries are on the non-vital parts. Injuries on non-vital parts are not sufficient to cause death.
7. P.W.16 arrested A.1, A.5, A.6 in the bus stop in the bypass road of Thiruvakaudanur in the presence of P.W.7 and 8 and examined them. At that time A.1 gave a voluntary confession statement, the admissible portion of which is Ex.P.2, pursuant to which M.Os.1, 24, 2, 3, 5, 4, 25 and 6 came to be recovered under Ex.P.3 attested by the same witnesses. At 5.30 p.m. on the same day in Five Roads Junction at Salem P.W.16 arrested A.3, A.4, A.7 and A.9 in the presence of the same witnesses and examined them. At that time A.3 gave a voluntary confession statement, the admissible portion of which is Ex.P.4., pursuant to which M.Os.7, 18, 26, 27, 28, 9, 8, 29, 30 and 31 came to be recovered under Ex.P.5 attested by the same witnesses. Under Ex.P.6, M.O.10 came to be recovered at 8.00 p.m. on the same day, pursuant to the same admissible portion of the confession statement of A.3. The arrested accused and the case properties were brought to the police station. The accused were sent for judicial remand and the case properties were sent to the court. P.W.16 was searching for the remaining accused. On prior information P.W.16 arrested A.10, A.14, A.11 and A.13 in the presence of P.Ws.7 and 8 and examined them. At that time, A.10 gave a voluntary confession statement, the admissible portion of which is Ex.P.40, pursuant to which M.Os.30, 32, 33, 16, 17, 34, 35, 36, 37 and 38 came to be recovered under Ex.P.41.
8. P.W.16 continued his investigation by examining further witnesses and recording their statements. On 31.10.2000 P.W.16 gave a requisition to the court to subject the case properties to the laboratory for examination. On 4.11.2000 P.W.16 came to know that A.2 had already surrendered before Judicial Magistrate No. II, Dharmapuri on 30.10.2000 and A.8 had surrendered on 31.10.2000 before Judicial Magistrate No. I, Sangagiri. On 7.11.2000 P.W.16 gave an application Ex.P.42 to the court to take A.2 and A.8 in to police custody. On that, the Court passed an order on 7.11.2000/Ex.P.43 giving police custody of A.2 and A.8 and accordingly he took them into police custody. On 8.11.2000 when he examined A.2 in police custody in the presence of P.Ws.7 and 8, he confessed and the admissible portion of his confession statement is Ex.P.7. Pursuant to Ex.P.7, M.Os.11 and 12 came to be recovered under Ex.P.8. A.8 also gave a voluntary confession statement when he was examined in police custody in the presence of P.W.7 and P.W.8. Ex.P.44 is the admissible portion of the confession statement of A.8, pursuant to which M.O.38 came to be recovered under Ex.P.45. A2 and A.8 were re-surrendered in court for continuation of their judicial remand.
9. P.W.2 is another eye witness, whose evidence regarding the occurrence proper namely, causing injury to P.W.1 and attacking deceased Nos.1 and 2 is on the same lines as spoken to by P.W.1. So is the evidence of P.W.3. P.W.5's evidence is also more or less on the same lines as spoken to by P.Ws.1,2 and 3. P.W.9's evidence is also on the same lines. As noted earlier, P.W.4 examined as an eye witness to the occurrence turned hostile. P.W.6 is the wife of Punk Kanagaraj/deceased No. 1. She was examined to prove that she went to the hospital on coming to know about the crime. But however, since she did not support the version of the prosecution case, she was treated as hostile. P.W.7 is the Village Administrative Officer of Nayakkanpatti. He witnessed the arrest of various accused; their examination; recording their confession statements leading to the recovery; examination of A.2 and A.8 when they were in police custody and recording their confession statements leading to the recovery. P.W.8, the Village Administrative Officer of Zahir Ammalapalayam, who was examined for the same purpose turned hostile.
10. P.W.10 was the duty Medical Officer in the Government Head Quarters Hospital at Salem. At 3.50 a.m. on 26.10.2000, Kanagaraj - P.W.1 appeared before him along with his friend Srinivasan. P.W.10 examined Kanagaraj and at that time Kanagaraj told him that "unknown" assailants attacked him with sticks and unidentifiable other weapons at about 1.30 a.m. near Thiagaraja Polytechnic. P.W.10 found him to be conscious. On him P.W.10 found various symptoms as noted by him in Ex.P.17, the Accident Register. The symptoms noted therein are as hereunder:
Injuries:
1) Incised wound 3 cm x 1/2 cm x 1/2 cm over right axilla.
2) Incised wound 17 cm x 1 cm x 1/2 cm over medial aspect of left arm.
3) Incised wound 4 cm x 1/2 cm x 1/2 cm over left elbow.
4) Incised wound 4 cm x 1/2 cm x 1/2 cm over lateral aspect of left arm.
5) Incised wound 6 cm x 1 1/2 cm x 1/2 cm over left forearm.
P.W.10 admitted P.W.1 in the hospital and issued Ex.P.15 the intimation to the police. Ex.P.18 is the Radiologists report, which shows that at the lower end of left elbow, there was a chip fracture. At 1.55 a.m. on 26.10.2000 i.e. before examining P.W.1, Sundaravelan, since deceased (deceased No. 2) was admitted in the hospital by P.W.10. Ex.P.16 is the intimation given by P.W.10 to the police on the medico legal case of Sundaravelan (deceased No. 2). P.W.11 is the Magisterial Clerk, who speaks about the receipt of the case properties along with the requisition given by the investigating officer to subject the same for chemical examination; sending the case properties to the laboratory as an enclosure to Court's letter and receipt of Chemical Examiner's Report and Serologists Report. P.W.16 was continuing his investigation by examining further witnesses and recording their statements. P.W.16 came to know that A.12 had surrendered in court at 9.00 a.m. on 22.11.2000. Accordingly, he took A.12 into police custody and examined him in the presence of P.W.7 and P.W.8 and at that time A.12 gave a voluntary confession statement, the admissible portion of which is Ex.P.9. Pursuant to Ex.P.9, M.O.13 came to be recovered under Ex.P.10 attested by the same witnesses. Ex.P.48 is the certificate given by the Electricity Board to show that there was no power disruption at the time of occurrence in the crime scene. M.Os.40 and 41 are the shirt and blood stained trousers of P.W.1 recovered by P.W.16 under Ex.P.49. After completing the investigation, P.W.16 filed the final report in court against the accused on 31.12.2000 for the offences referred to earlier.
11. When the accused were questioned under Section 313 of the Code of Criminal Procedure on the basis of the incriminating materials made available against each one of them, they totally denied their involvement. As noted in the beginning, neither oral nor documentary evidence was brought before court at their instance. Mr. V. Gopinath, learned Senior Counsel arguing for two of the convicted accused would contend that though the prosecution had examined persons as eye witnesses to the crime, yet, if this Court finds any suspicion in the registering of the complaint - which is the foundation for the prosecution on which alone the entire credibility of the prosecution stands, then the evidence of the eye witnesses would fall to the ground. Learned Senior Counsel elaborated his argument by taking us through the corrections made in Ex.P.1, the complaint and P.36, the printed First Information Report. It is his further contention that long before Ex.P.1 had come to be registered there was another written complaint about the incident given by P.W.2 and that has been suppressed. Therefore there is a serious doubt as to whether the prosecution is holding back the very genesis of the prosecution case. Learned Senior Counsel then contended that the evidence of P.Ws.1 to 3, 5 and 9 by the very nature appears to be so very artificial which this Court can easily reject. There was no rhyme or reason for these witnesses to be present at a totally different place from their respective houses at such an odd hour that too, every one of the witnesses examined to prove the crime stating that all of them had gone to have a shave in the same Saloon. To P.W.10, learned Senior Counsel would contend, P.W.1 told that his assailants are "unknown". Likewise the assailants of Sundaravelan (deceased No. 2) are also stated to be "unknown" assailants to P.W.10. Therefore the cumulative effect of such shortcomings in the prosecution case would definitely enable this Court to consider acquitting all the accused. When there is no dispute that there is bitter enmity between the two groups and if the foundation of the prosecution is found to be a fabricated one or suspected to be a fabricated one, then it would not be possible to find out where exactly lies the truth. Mr. S. Ashok Kumar, learned Senior Counsel appearing for one of the convicted accused also advanced arguments, which is more or less on the same lines as referred to above. According to the learned Senior Counsel, from the mere fact that even at 3.55 a.m. when P.W.1 was examined by P.W.10, the information was that the assailants are "unknown", it is clear that the prosecution had no clue at all till that time about the actual culprits. If this conclusion is possible on the evidence available, then the corrections found in Ex.P.1 and Ex.P.36 would definitely lend enormous support to the defence case that the prosecution version is a concocted one. In support of his arguments that once the foundation of the prosecution is doubted, then the entire edifice of the prosecution case would collapse, learned Senior Counsel relied upon the judgment of the Supreme Court (Marudanal Augusti v. State of Kerala). In answering these points, learned Additional Public Prosecutor would primarily contend that the correction found in Ex.P.1 is so very obvious that no court can miss taking note of it. If the Police Inspector wants to make a correction and if he wants to fabricate a case, then he would have taken enough care to see that the correction is made in such a way that it goes unnoticed. Therefore from the mere correction in Ex.P.1, this Court may not be in a position to throw out the entire prosecution case since the contents of Ex.P.1 are consistently spoken to by P.Ws.1 to 3, 5 and 9 and therefore the correction may not have any role to play at all in deciding the prosecution case. Learned Additional Public Prosecutor would submit, in the context of various recoveries made at the instance of the accused, that in those recovered objects blood group of either deceased No. 1 or deceased No. 2 is found. As far as the points put forward before this Court that there was an earlier complaint prior to Ex.P.1, learned Additional Public Prosecutor argued that a reading of the evidence of P.Ws.2 and 9 together, it is possible to hold that the said statement of P.W.2 was only in the morning of 27.10.2000 and definitely not prior to recording of Ex.P.1. According to the learned Additional Public Prosecutor, P.W.2 had every reason to go in search of his brother Sundaravelan (deceased No. 2) since it was a festival day namely, Deepavali and there is nothing wrong in Sundaravelan's mother sending P.W.2 to fetch the other son to be at home to celebrate Deepavali. The evidence of P.Ws.1 to 3, 5 and 9, learned Additional Public Prosecutor would argue, is full of confidence and therefore there are no compelling reasons to reject their evidence.
12. In the light of the arguments advanced by the learned Counsel on either side, we went through the entire materials. Since the main attack by the defence is on the genuineness of Ex.P.1, we felt that it is desirable, we examine first the genuineness of Ex.P.1. It is needless to state that Ex.P.1/the complaint is the foundation for any prosecution case and when the prosecution case is before court, its truth or otherwise would have to be tested only in the light of the said complaint. Courts have been repeatedly holding that there cannot be any exception to the above said position. According to the prosecution, the occurrence took place at about 1.30 a.m. in the morning of 26.10.2000, i.e. on the intervening night of 25.10./26.10.2000. P.W.10 is the Doctor, who examined Sundaravelan, one of the deceased in this case at 1.55 a.m. on 26.10.2000. He then sends Ex.P.16 the intimation to the police. P.W.10 during the relevant time was working in the Government Mohan Kumaramangalam Medical College Hospital. At the reverse of Ex.P.16, we find that a police constable by name Balachander had made an endorsement that he received it at 2.10 a.m. on 26.10.2000 (during one of the earlier hearings in these batch of appeals, the police officer present in court informed us through Public Prosecutor that the person, who signed on the reverse of Ex.P.16 is a police constable by name Balachander attached to Medical College Police Outpost). Ex.P.35 is the death intimation and it shows that Sundaravelan admitted in the hospital at 02.05 a.m. on 26.10.2000 died at 2.10.a.m. on the same morning. Therefore it is clear Sundaravelan died within five minutes after his admission. At the foot of Ex.P.35 an endorsement is found made in Tamil signed by one Radhakrishnan stating that the duty Doctor informed him that his brother Sundaravelan died. Therefore it is clearly seen that the said Radhakrishnan might have been only in the hospital by the bed side of Sundaravelan. P.W.10 also examined P.W.1 at 3.50 a.m. on 26.10.2000 and issued Ex.P.15, the intimation to the police. On the reverse of Ex.P.15, we find an endorsement that by 4.25 a.m. on 26.10.2000, a police constable had received it. This police constable is informed to be attached to the police out post. Exs.P.15 and P.16 also contain a writing on the reverse of it as hereunder:
Soolamangalam Police Station, Grade I Police Constable 216.
The said constable had not been examined. We presume from the entries found in Exs.P.15 and P.16 that the intimation received by the police constable attached to the police out post from the hospital was handed over to Grade I Police Constable 216, belonging to the investigating police station. P.W.16 is the investigating officer. He would state in his evidence that he received information over telephone early in the morning of 26.10.2000 (he does not specify the exact time of receipt of such information) and proceeded to the Government Medical College Hospital, where he collected the intimations Exs.P.16, P.15 and death intimation Ex.P.35. We find on the reverse of Ex.P.35 also the same endorsement as found in Exs.P.15 and P.16 namely "Soolamangalam Police Station - Grade I P.C.216". Therefore the evidence of P.W.16 that he collected Exs.P.15, P.16 and P.35 from the hospital at the face of it appears to be incorrect. In other words, we have no doubt at all that Exs.P.15, P.16 and P.35 were received from the police out post only by Grade-I Police Constable 216 from the investigating Police Station and not by anybody else. P.W.16's evidence that he only collected Exs.P.15 and P.16 stands ruled out from the endorsement found made on the reverse of Exs.P.15 and P.16 namely, "Soolamangalam Police Station, Grade I Police Constable 216".
13. P.W.16 would state that he reached the hospital after he received information over telephone about the crime, where after collecting intimation for P.W.1, Ex.P.15 and death intimation Ex.P.35 for Sundaravelan (deceased No. 2) he examined P.W.1 in the ward by recording his statement. He would depose that thereafter he came back to the police station and registered that statement of P.W.1 as Ex.P.1 in Crime No. 1181 of 2000 for various offences. Ex.P.36 is the printed First Information Report. Since the very attack on the prosecution case centres around the genuineness of Ex.P.1, we examined with care and caution Ex.P.1 to find out whether it could have come to be recorded in the hospital at the time and in the manner alleged by P.W.16. At the end of page 3 in Ex.P.1 we find an endorsement that P.W.16 recorded the said statement in the hospital at 4.15 a.m. Regarding the time at which the said complaint had come to be recorded in the hospital, there is definitely a correction. When P.W.16 was pinpointedly cross examined drawing his attention that the complaint was actually recorded only at 5.30 a.m. but it stands corrected as 4.15 a.m., he denied there is any such correction. It is not disputed even by the State counsel that the correction on the line indicated above is visible to the naked eye. We do find on a cursory perusal that there is correction regarding the time at which the complaint had come tobe recorded in the Government Hospital at Salem. Still to be sure as to what exactly the correction means, we used a magnifying glass. Through the magnifying glass we see that the time at which the complaint is shown to have been recorded at the hospital is indicated as 5.30 hours. The numerical "30" representing the minutes has been painted with a white paint and on such white painted portion the numerical "15" had been written. Numerical "5" representing the hours had been overwritten as "4". In other words, P.W.16 wants the court to believe that the complaint was recorded in the hospital only at 4.15 hours and not at any later point of time. It may be noted earlier that the correction is so obvious on the face of it that no eye could miss it. P.W.16, as noted earlier, did not come out with any explanation at all regarding the correction made. In fact he had denied that there is any such correction. To find out whether the correction as noted above was made in the hospital itself by P.W.16 or later in the police station, we find that there is no material. Why a police officer should use a white paint in making the correction itself lead us to suspect the very bonafides of P.W.16. Normally white paint could be used on a written material to see that what was written earlier to the application of white paint is not readable by others. But in this case, in so using the white paint, the police officer had not taken care to see that the written material had been completely white painted. Ex.P.36 is the printed First Information Report. Column 3(a) of Ex.P.36 relates to the date and time of occurrence. We find from Ex.P.36 that the time of occurrence namely, 01.30 hours is definitely overwritten and using a magnifying glass we found that originally it was written there as "02.30" hours. We find that in the important records namely, Exs.P.1 and P.36 there are corrections and those corrections go to the root of the matter. As noted earlier, the police officer/P.W.16 had totally denied any such correction in Ex.P.1 at all. It may be true that the said complaint had reached the Magistrate at 7.00 a.m. itself. The shortcomings in the prosecution case namely, the recording of the complaint as indicated above are not the end of woes for the prosecution case and still there are many more. We now go back to the evidence of P.W.10. P.W.10 had stated that when he examined P.W.1 at 3.50 a.m. on 26.10.2000 he was conscious and P.W.1 told him that he was attacked by "unknown" persons by the use of sticks and other unidentifiable weapons. P.W.10 had issued the wound certificate. He had admitted when he was cross examined that he issued Ex.P.16 the intimation for Sundaravelan (Deceased No. 2) at 1.55 a.m. itself and there is every possibility of Sundaravelan being admitted in the hospital much earlier. He had also admitted when he was examined by the investigating officer that he gave details based on the contents of the accident register. When he was questioned as to whether Sundaravelan informed him that the assailants are shown to be "unknown", he answered that he did not remember. But however P.W.16, the investigating Officer had admitted when he was cross examined by A.1 to A.9, A.11 to A.14 that P.W.10 during investigation told him that when Sundaravelan was admitted in the hospital P.W.10 was informed that Sundaravelan was attacked by "unknown" assailants with unidentifiable objects. Therefore not only by the time when Sundaravelan came to be admitted in the hospital, which may be earlier to 1.55 a.m. on 26.10.2000 but also at 3.50 a.m., by which time P.W.1 appeared in the hospital, the assailants are "unknown". In this context, if we go back to our discussion on the genuineness of Ex.P.1 it is not possible to brush aside the argument of the learned Senior Counsel that till 3.50 a.m., on 26.10.2000 none of the prosecution party had any clue as to who the assailants are and then only after deliberation, the complaint by way of Ex.P.1 was brought into existence.
14. There is some more material in the prosecution evidence itself, which is in favour of the accused. P.W.2 knows not only the accused but also both the deceased. He is an Electrician by profession. According to him he had seen the occurrence. P.W.2 is also the elder brother of Sundaravelan, one of the deceased in this case. As noted earlier, he claims to be an eye witness to the occurrence. P.W.2's evidence is that he travelled along with his brother Sundaravelan to the hospital where his brother died at 2.10.a.m. This goes with the endorsement found in Ex.P.35, the death intimation that Sundaravelan's death was informed to the kith and kin in the hospital itself. When P.W.2 was cross examined at the instance of A.5, he had deposed as hereunder:
My mother and my elder brother were taken to Soolamangalam Police Station (the investigating police station); at 3.00 a.m. in the morning, the Assistant Commissioner of Police came to the hospital; along with the Assistant Commissioner of Police my mother and my elder brother also came; the Assistant Commissioner examined me and I told him what happened; the Constable present along with the Assistant Commissioner of Police reduced in to writing what I narrated; my statement was read over to me and I found it to be correct and then singed in it; the Assistant Commissioner of Police sent away the constable asking him to register a case.
This witness has not been re-examined at all by the State nor was he treated as hostile even at that stage. Therefore we have to take the above referred to evidence also into consideration. Before stating as to what would be our inference on the above noted material, we want to go through the evidence of P.W.9. P.W.9 is also examined as an eye witness to the crime. He knows both the deceased as well as the accused. His evidence is that his house is half a furlong away from the house of Sundaravelan and he knows Sundaravelan for the past three years. Then he deposed that after the occurrence he did not go to the police station but only to his house. He told everybody in the village that Sundaravelan had been cut and he went to the house of Sundaravelan also and informed the inmates about the crime. He would admit that when he reached the house of Sundaravelan it was exactly 2.30 a.m. and on hearing the news, Sundaravelan's mother and elder brother left the house stating that they are going to the crime scene. Therefore if the above referred to evidence of P.W.9 is read in the context of the evidence of P.W.2, which we have already referred to earlier, would definitely lead us to conclude that Sundaravelan's mother and elder brother would have reached the investigating police station and from there along with the Assistant Commissioner of Police they had reached the hospital by about 3.00 a.m. where by examining P.W.2 a statement had been recorded. That exactly is the effect of the evidence of P.W.2. If that is so, as rightly contended by the learned Senior Counsel, there is definitely an earlier complaint given by P.W.2 to the police and the Assistant Commissioner of Police had directed the police constable to go and register that complaint. That complaint is not forthcoming. We searched in vain to find out whether there could be any material from which we could conclude that the evidence of P.W.2 is only an inadvertent error or due to ignorance of things that existed on that night. But we found none. Therefore we hold, on the materials noted above, that prior to Ex.P.1 coming into existence, a complaint had already come to be lodged with the police at 3.00 a.m. on 26.10.2000. If that is the inescapable conclusion which could be arrived at, then we have no doubt at all that Ex.P.1 cannot be the foundation for the prosecution case as projected now. When admittedly there is bitter enmity between the two groups, the Court must be in a position to find out with confidence, where lies the truth. In the face of our conclusion that prior to Ex.P.1 another complaint had already been given and Ex.P.1 is not the true version but appears to be a fabricated version, it is not possible for us to find out from the present evidence based on Ex.P.1, where lies the truth. In other words, the possibility of falsely implicating persons belonging to the opposite camp, cannot be totally ruled out.
15. By way of abundant caution, we also applied our mind to the oral evidence of P.Ws.1,2,3,5 and 9, who undoubtedly speak in unison voice that they saw the occurrence and the accused participating in the crime. It is really too much to believe that all the eye witnesses examined in this case have gone at the same time to have a shave, that too in the odd hour at 1.30 a.m. almost in the middle of the night to the same place. A touch of artificiality is running through their evidence. P.W.1 is an injured eye witness. His evidence is that when he along with P.Ws.2 and 3 and both the deceased were talking, a red colour Yamaha Motorcycle came. He does not even say, who came in that motor-cycle. He does not speak about as to how the remaining accused arrived at the scene. His evidence is, a red colour motor-cycle came and stopped opposite to the saloon; all the accused surrounded them and the attack was perpetrated and it is his evidence that all the accused escaped in the motor-cycle. P.W.1 did not say that the accused came in any other vehicle. Therefore how is it possible to accept the evidence of P.W.1 especially when he is totally silent as to who came in the motor-cycle; that he saw all the accused perpetrating the crime and then fleeing away from the crime scene. As noted earlier, to P.W.10 he had stated in a fit and conscious state of mind that the assailants are "unknown". Therefore as held by the Supreme Court in the judgment (Marudanal Augusti v. State of Kerala) - we extract what their Lordships stated, The High Court seems to have overlooked the fact that the entire fabric of the prosecution case would collapse if the F.I.R. is held to be fabricated or brought into existence long after the occurrence and any number of witnesses could be added without there being anything to check the authenticity of their evidence.
the situation in the present case appears to be tailor-made to suit the prosecution case. In other words, they arrive at a definite conclusion as to how to bring about the complaint into existence namely, Ex.P.1; fix people to speak in accordance with the contents of Ex.P.1 and then wanted the court to believe that evidence. Without any hesitation we state that, had we not doubted Ex.P.1, we would have had no difficulty at all in accepting the evidence of P.Ws.1,2,3,5 and 9 as they on their apparent tenor establish the guilt of the accused. But once again we will have to state that since the foundation of the prosecution case had fallen to the ground, the entire prosecution case must collapse.
16. Since heavy reliance is placed on the recovery at the instance of some of the accused - we have already referred to it, we also applied our mind to the recoveries made. At the instance of A.1 weapons stated to have been used by A.5 and A.6 had come to be recovered. At the instance of A.3 besides the weapons stated to have been used by him, weapons stated to have been used by A.4, A.7 and A.9 came to be recovered. At the instance of A.10 weapons shown to have been used by A.11, A.13 and A.14 have come to be recovered. The recovery at the instance of A.2 and A.12 is with reference to the weapons stated to have been used by them. Surprisingly we find that P.Ws.7 and 8, out of whom P.W.8 turned hostile, were the only witnesses, who were present at all times along with the police officer whenever arrests were made leading to the recovery. Assuming the recoveries are made, yet, they are shown to have been made from the front of the respective houses of the accused. In other words, the recoveries are from different places just in front of the house of the respective accused. What credibility the Court could give to such recoveries - less said the better. We find that the materials taken into account by us in our discussion had escaped the attention of the learned Trial Judge and that is how the judgment stands vitiated. It is true that two persons were done to death in a brutal manner, but the number of deaths is not going to sway in favour of the prosecution, unless the prosecution places before court acceptable legal evidence, which is totally wanting in this case.
17. Accordingly C.A. Nos. 1058, 1074, 1315, 1360 and 1462 of 2002 are allowed and the accused are acquitted of the offences for which they were charged, tried and convicted. Fine amount, if any paid by them shall be refunded to the respective accused. Bail bonds if any executed by them shall stand terminated forthwith. This Court is informed by the learned Counsel appearing for A.10 (C.A. No. 1186 of 2002) and A.3 (C.A.1462 of 2002 & C.A. No. 1873 of 2003 - A.3 is the sole appellant in C.A. No. 1873 of 2003 and he is the second appellant in C.A. No. 1462 of 2002) that the respective appellants in each of the appeal died after the filing of the appeal. The State is not disputing this fact. Accordingly, C.A.Nos.1186 of 2002 so far as it relates to A.10 and 1873 of 2003 and C.A. No. 1462 of 2002 so far as it relates to A.3 stand dismissed as having abated.