D.Napolean v. State by: Inspector of Police C1, Flower Bazaar Police Station Chennai

For Respondent: Mr.Hasan Mohamed Zinna Additional PublicProsecutor(All Crl.Appeals)COMMON JUDGMENT(Judgment of the Court was delivered by M.CHOCKALINGAM, J.)This judgment shall govern these three criminal appeals namelyC.A.194/2008 by A-4, C.A.197/2008 by A-1 and A-2 and C.A.813/2008 byA-3. 2.All these three appeals challenge a judgment of the AdditionalSessions Division, Fast Track Court No.II, Chennai, whereby theappellants ranked as A-1 to A-4 respectively along with A-5 stoodcharged, and on trial, A-1 to A-4 were found guilty and awardedpunishment as follows:ACCUSEDCHARGESFINDINGPUNISHMENTA-1, A-2, A-3 &A-5120(B) IPC ---A-1 to A-5147 IPCNot guiltyA-1 to A-5148 IPCNot guiltyA-1 to A-5341 IPCA-1 to A-4guilty1 month SIA-1 to A-5353 IPCA-1 to A-4guilty1 year RIA-1 to A-5302 IPCA-1 to A-4guilty underSec.302 r/w 120(B) IPCLifeimprisonmentwith a fine ofRs.500/- anddefault sentenceA-1 to A-5506(2) IPCA-1 to A-4guilty3 years RIA-5 was acquitted of all the charges levelled against him.3.Short facts necessary for the disposal of these appeals can bestated as follows:(a) P.Ws.1 and 2 were the Head Constables attached to C2 ElephantGate Police Station. On 7.11.2006, they were on duty between 7.00A.M. and 2.00 P.M. at a place within the jurisdiction of C1 FlowerBazaar Police Station. P.W.7 is the father; P.W.8 is the sister; andP.W.9 is the brother-in-law of the deceased Dillibabu. One Veera, thebrother of A-1 and A-2, was murdered. They were under the impressionthat it was Dillibabu who murdered their brother. A-3 and A-4 are theassociates of A-1 and A-2. (b) On the date of occurrence namely 7.11.2006, at about 1.30P.M., Dillibabu went to the Central Prison to meet a few of hisfriends who were in custody, and he was coming back near the CentralRailway Station by walk. At that time, when he was just near the https://hcservices.ecourts.gov.in/hcservices/ Police Booth situated near the Central Railway Station, A-1 to A-4armed with deadly weapons chased him. On seeing this, he began to runand fell at a place in front of the police booth. At that time, A-3pointing towards the deceased uttered "It was he who murdered theirbrother Veera. Cut him". On his instigation, A-1 and A-2 cut him.The same was witnessed by P.W.1. When P.W.1 went to the rescue,immediately, A-3 and A-4 caught hold of him and were showing a knife.At that time, A-3 and A-4 leaving P.W.1 joined others in cutting thedeceased. The occurrence was witnessed by P.Ws.1, 3 to 6, 21, 23 and29. P.W.1 and others went nearby and found Dillibabu was breathingand alive. At that time, there was drizzling. The driving licensewas found in the pocket of Dillibabu. A photo was also pasted inthat. From that, they came to know that it was Dillibabu, and hisfather's name was one Mohanraj. P.W.2 was a duty constable in the busstop. He came nearby to whom P.W.1 informed about the occurrence. (c) P.W.30, the Sub Inspector of Police, attached to therespondent police station, was on patrol that day. On receipt of theinformation, he rushed to the spot and stopped a fish cart which wason the way, and the body of Dillibabu was taken by him along with oneRajendran to the Government General Hospital. P.W.22, the Doctor, whowas in the Hospital, on medical examination, declared him dead. Henoted the injuries found in the dead body, and the copy of theaccident register is marked as Ex.P10. (d) P.W.1 gave an intimation to P.W.31, the Inspector of Police,attached to C1 Flower Bazaar Police Station. He also came to thespot. P.W.1 accompanied P.W.31, and they went to the GovernmentGeneral Hospital. There they came to know that Dillibabu is alreadydead. Thereafter, they went to the respondent police station whereP.W.1 gave Ex.P1, the report, on the strength of which a case came tobe registered in Crime No.625 of 2006 under Sections 341, 302, 342,352 and 506(2) of IPC. The printed FIR, Ex.P32, was despatched to theCourt. (e) P.W.31 took up investigation, proceeded to the spot, made aninspection and prepared an observation mahazar, Ex.P33, and a roughsketch, Ex.P34. Then he conducted inquest on the dead body ofDillibabu in the presence of witnesses and panchayatdars and preparedan inquest report, Ex.P36. Photographs were taken through P.W.10, thephotographer. The photos and negatives are marked as M.O.15 series. (f) Pursuant to a requisition made, the dead body was subjectedto postmortem by P.W.15, the Tutor in Forensic Medicine, MadrasMedical College. The Doctor has issued a postmortem certificate,Ex.P5, with his opinion that the deceased would appear to have died ofhead injury (multiple chop wounds).(g) Pending investigation, the Investigator came to know that A-1to A-3 surrendered before the III Metropolitan Magistrate, Chennai, onthe next day i.e., 8.11.2006. Then police custody was sought for, andthe same was ordered. They were taken to police custody on 9.11.2006,and were interrogated. A-1 came forward to give a confessionalstatement voluntarily. The same was recorded. The admissible part ismarked as Ex.P38. He produced M.O.6, aruval, and M.O.7, shirt, whichwere recovered under a cover of mahazar. A-2 gave a confessionalstatement voluntarily, which was recorded. The admissible portion isEx.P40. He produced M.O.8, knife, and M.O.9 shirt, which wererecovered under a cover of mahazar. A-3 gave a confessional statement https://hcservices.ecourts.gov.in/hcservices/ which was recorded. The admissible part is Ex.P42. He producedM.O.10, aruval, and M.O.11, shirt, which were recovered under a coverof mahazar. The accused were sent for judicial remand.(h) P.W.32, the Inspector of Police, took up furtherinvestigation. A-5 was arrested on 13.11.2006. He volunteered to givea confessional statement which was recorded. The admissible part isEx.P44. Then he produced a knife which was recovered under a cover ofmahazar. The Investigator came to know that A-4 surrendered before theCourt on 11.12.2006, and police custody was taken. He gave aconfessional statement which was recorded. Ex.P48 is the admissiblepart. He produced a knife and a shirt which were recovered under acover of mahazar. A-4 and A-5 were sent for judicial remand. (i) The test identification parade was conducted by P.W.27, theXVI Metropolitan Magistrate, Chennai. The identification paradeproceedings are marked as Ex.P18. All the material objects weresubjected to chemical analysis, which resulted in Ex.P4, the ChemicalAnalyst's report, and Ex.P6, the Serologist's report. On completion ofinvestigation, the Investigator filed the final report.4.The case was committed to Court of Session, and necessarycharges were framed. In order to substantiate the charges, theprosecution examined 32 witnesses and also relied on 49 exhibits and15 material objects. On completion of the evidence on the side of theprosecution, the accused were questioned under Sec.313 of Cr.P.C. asto the incriminating circumstances found in the evidence of theprosecution witnesses, which they flatly denied as false. On the sideof the defence, one Vasan was examined, through whom one document wasmarked as Ex.D1. The trial Court heard the arguments advanced, lookedinto the materials available and took the view that the prosecutionhas proved the case beyond reasonable doubt and hence entered ajudgment of conviction and sentence. Insofar as A-5, the trial Courthas made an order of acquittal. Under the circumstances, theseappeals have arisen at the instance of A-1 to A-4 respectively. 5.Advancing arguments on behalf of A-1 and A-2, the learnedSenior Counsel Mr.V.Gopinath would submit that in the instant case,the occurrence, according to the prosecution, has taken place on7.11.2006 at 1.30 P.M.; that P.Ws.1, 3 to 6, 21, 23 and 29 wereshown as eyewitnesses out of whom P.Ws.5, 6, 21 and 23 have turnedhostile; that the evidence that was available for the prosecutionbefore the trial Court was that of P.Ws.1, 3, 4 and 29; that P.W.2 hasclaimed that he came to the place of occurrence after the incident wasover; and that out of these witnesses, P.Ws.1, 3 and 4 are PoliceConstables. 6.The learned Senior Counsel assailing the prosecution storywould submit that in the instant case, P.W.1 could not have been inthe place of occurrence; and that Ex.P1, the report, pursuant to whichthe case has been registered, could not have been the firstinformation at all. The learned Senior Counsel pointing to theevidence of P.W.22, the Doctor, and also the accident register copy,Ex.P10, would submit that it is mentioned therein that the deceasedwas an unknown person, and he was also attacked by four unknownpersons. He would further submit that according to P.W.1, he was on https://hcservices.ecourts.gov.in/hcservices/ duty, and he found that the deceased was actually walking and theaccused persons four in number were actually chasing him, and out ofthis four, one of the accused was a tall man, and he called A-1 and A-2 by names and pointing to the deceased uttered that it was he whomurdered their brother Veera, and thus he should be finished off; andthat Ex.P1 would contain the names of A-1 and A-2; but, the names ofA-3 and A-4 are not shown therein. 7.Added further the learned Counsel that the occurrence has takenplace at about 1.30 P.M.; that P.W.1 would claim that he was alsopresent at the place of occurrence; but he did not accompany thedeceased to the hospital, and he kept himself there, and he waswaiting for the arrival of P.W.31, the Inspector of Police; that thebody was actually taken, according to the prosecution case, by P.W.30,the Sub Inspector of Police, and one Rajendran; but the said Rajendranwas not examined by the prosecution; that from the evidence of P.W.1,it would be quite evident that the information before the Court namelyEx.P1, was not the first information as he has categorically admittedthat after he went to the Government General Hospital along withP.W.31, he was enquired, and he gave a statement, and the same wasrecorded by P.W.31, and thereafter he accompanied P.W.31 to the policestation where he gave another statement, and the said statement hasalso been recorded; that from the evidence of P.W.1, it would be quiteclear that that there were two statements recorded by P.W.31, one atthe Government General Hospital and the other at the police station;that now at this juncture, the FIR though claimed to be registered at3.30 P.M., has reached the Metropolitan Magistrate at about 10.30 P.M.after a lapse of seven hours; and that P.W.31 was cross-examined aboutthe delay; but he did not know how the delay was caused, and he wouldclaim that the FIR was handed over to the Head Constable to be takento the Court immediately; but for the reasons best known to theprosecution, when there was an inordinate delay, the Head Constable towhom the FIR has been handed over was not examined. 8.Now the learned Senior Counsel would submit that P.W.8 hascategorically stated that two persons A-1 and A-2 came to her houseand threatened that her brother Dillibabu would be murdered; thatP.W.8 has also claimed that she came to the hospital at about 4.00P.M.; that it would be quite clear that the names of these accusednamely A-1 and A-2, were actually known to P.W.8, and hence theirnames should have been taken from her and the second report, Ex.P1,what is now placed before the Court has been prepared; and that theearlier report which was originally recorded by P.W.31 from P.W.1 atthe hospital has been suppressed. 9.Added further the learned Senior Counsel that in the instantcase, P.W.7, the father of the deceased, would claim that his sonDillibabu came in a motorbike on the day; that P.W.9 the brother-in-law of the deceased, would also claim that the motorbike belonged tohim; that they have also given the registration number of themotorbike as TN 02 B 6823; that so far as this motorbike is concerned,on the day a photo was taken by a news reporter from Dhinamalar, andit also came in the newspaper as a news item on 8.11.2006; that D.W.1has been examined to that effect; that in that photograph, the https://hcservices.ecourts.gov.in/hcservices/ particular motorbike with the registration number is also exhibited,and thus it was a defence plea that on the date when the occurrencehad taken place, the deceased came in a motorbike which was actuallyfound in the place of occurrence; that under the circumstances, theevidence of P.W.1 and the other witnesses that he was coming by walkat that time was nothing but false; that it would be indicative of thefact that the witnesses could not have seen the occurrence at all; andthat the prosecution has failed to put forth any explanation how thesaid motorbike happened to be in the place of occurrence. 10.Added further the learned Counsel that as far as the otherwitnesses are concerned, it is not the case of the prosecution thatthey actually knew the accused already; that as far as theidentification parade was concerned, those witnesses were not taken tothe identification parade; that it was only P.W.1 who was taken; thatall these accused persons actually surrendered before the Court, andthey were taken to police custody on 11.11.2006 and were kept incustody till 14.11.2006; that they were in custody for a period offour days; and that it would be clearly indicative of the fact thatthere was all possibility for the police to show them to P.W.1 who wasthe Head Constable of the particular police station. 11.The learned Senior Counsel would further submit that P.W.27,the Metropolitan Magistrate, conducted the test identification parade;that at the earliest opportunity, the accused persons complained himthat they were shown to the witnesses, and apart from that,photographs were also shown to them, and thus the test identificationparade was of no consequence at all. 12.Added further the learned Senior Counsel that in the instantcase, the inquest report and the statement of P.W.1 reached the Courtonly on 11.11.2006, after a period of four days; that in the inquestreport which was claimed to have been prepared on the evening hours ofthe very day, the name of P.W.1 did not find place; that furtherColumn No.14 of the inquest report would clearly indicate that thedead body was handed over to the relatives of the deceased after thepostmortem was over, at about 2.30 P.M. on 8.11.2006; that when such afact of handing over of the dead body on the next day has beenincorporated in the inquest report, it would clearly indicate that theinquest report could not have been prepared on 7.11.2006, but at alater date; that the postmortem has taken place earlier; but theinquest report has been prepared according to the convenience of theInvestigator; that no inquest report as claimed by the prosecution wasprepared on 7.11.2006; and that it can be well stated that no inquestwas conducted at all. 13.Added further the learned Senior Counsel that as far as thealleged confessions and recovery of the material objects wereconcerned, the prosecution examined P.W.28 in respect of A-1 to A-3;but, he has turned hostile, and as far as A-5 was concerned, P.W.26was examined; but, he has turned hostile, and under the circumstances,no importance could be attached to the recovery also; that as far asthe other witnesses are concerned, except P.W.1 others were not takento identify the accused at the parade; that it is a case where they https://hcservices.ecourts.gov.in/hcservices/ claimed that in a public place the occurrence has taken place within afew minutes; that under the circumstances, the identification was amust; but not done so; that while the Investigator thought it fit thatidentification parade was to be conducted as far as P.W.1 wasconcerned, it was equally applicable to the other witnesses also, butnot done so, and this would affect the prosecution story; that as faras P.W.1 was concerned, from the materials available it would be quiteclear that P.W.1 could not have been in the place of occurrence atall; that under the circumstances, the trial Court has misdirecteditself since it was a murder in a public place and that too in a daylight and also in the city, and has taken an erroneous view, and hencethey are entitled for acquittal.14.Apart from adopting the contentions put forth by the otherCounsel, the learned Senior Counsel Mr.AR.L.Sundaresan putting forththe case on behalf of A-3 in CA 813/2008 would submit that Ex.P1placed before the trial Court, was not the first information andshould have been rejected by the trial Court since P.W.1 hascategorically admitted that he gave two statements; that as far as theidentification parade was concerned, three witnesses were taken forthat purpose; but, except P.W.1, two other witnesses could notidentify; that as far as P.W.1 was concerned, the identificationproceedings should have been completely rejected for the reasons thatboth A-3 and others were taken on police custody and were kept incustody for three days; that P.W.1 was a police constable; that underthe circumstances, there was all possibility for him to easilyidentify them; that apart from that, A-3 and other accused at the timeof identification parade made a complaint before the Magistrate thatthe photographs were taken, and they were already identified to thewitnesses, and thus the identification parade loses its significance. 15.Added further the learned Senior Counsel that the place ofoccurrence was also found to be different; that the deceased was alsocoming in a motorbike; but no explanation was tendered; that as far asP.W.29 was concerned, he was examined as a witness by the Investigatorafter a period of nearly one or two months; that no explanation wastendered; that even the address of P.W.29 was not known; that he was awitness who was actually brought before the Court to strengthen theprosecution case if possible; that the entire case rested upon theevidence of P.W.1; but P.W.1 could not have been in the place ofoccurrence at all; that under the circumstances, the prosecution hasmiserably failed to prove its case, and hence A-3 is entitled foracquittal since the trial Court has taken an erroneous view.16.Advancing arguments on behalf of A-4, the learned SeniorCounsel Mr.R.Shunmugasundaram would submit that the name of A-4 is notfound place in Ex.P1 or FIR; that he actually surrendered before theCourt on 11.11.2006; that he was taken to police custody; that he wasin police custody for four days i.e., till 14.11.2006; that he isalleged to have given a confessional statement, and the admissiblepart is marked as Ex.P48; that though the prosecution claimed that aknife and a shirt were recovered from him and two witnesses are shownin the list of witnesses, they have not been examined; that as far asA-4 was concerned, no identification parade was conducted; that as far https://hcservices.ecourts.gov.in/hcservices/ as the other witnesses are concerned, P.Ws.3 and 4 did not participatein the identification parade; that the statements of P.Ws.3, 4 and 29have reached the Court on 26.3.2007 after a long lapse of time; thatfurther A-4 has actually complained to the Magistrate at the time ofidentification parade that the photographs were taken, and he was alsoidentified already; that apart from that, the identifying witness wasa police constable who could easily identify the accused since theywere in police custody for number of days, and under thecircumstances, he is entitled for acquittal in the hands of thisCourt.17.The Court heard the learned Additional Public Prosecutor onall the above contentions and paid its anxious consideration on thesubmissions made. 18.It is not in controversy that following the incident that tookplace at about 1.30 P.M. On 7.11.2006, in front of the Central RailwayStation where a police booth is situated, one Dillibabu was done todeath. Immediately the body was taken to the Government GeneralHospital where he was declared dead by P.W.22, the Doctor. Theaccident register copy is marked as Ex.P10. Following the registrationof the case in Crime No.625 of 2006 and the inquest made by P.W.31,the Inspector of Police, attached to C1 Flower Bazaar Police Station,the dead body was subjected to postmortem by P.W.15, the Doctor, whohas given a categorical opinion that he died out of head injury(multiple chop wounds). The fact that Dillibabu died out of homicidalviolence was never disputed by the appellants before the trial Court.Hence the trial Court felt no impediment in recording so and rightlytoo.19.In order to substantiate that the appellants have attackedDillibabu and caused his death at the time of occurrence, theprosecution adduced evidence by marching P.Ws.1, 3 to 6, 21, 23 and 29as eyewitnesses, out of whom P.Ws.1, 3, 4 and 29 have supported theprosecution case, while others have turned hostile. As far as thesefour witnesses were concerned, P.W.1 was the Head Constable attachedto C2 Elephant Gate Police Station, and P.Ws.3 and 4 were HeadConstables attached to the respondent police station. Admittedly,they were on duty at the time when the occurrence has taken place.P.W.29 was an independent witness. 20.At the outset, it must be stated that it is not a case whereindependent witnesses were not examined; but, actually independentwitnesses were examined, out of whom number of witnesses have turnedhostile. However, the prosecution had to its benefit the evidence ofP.Ws.1, 3, 4 and 29. The occurrence has taken place at about 1.30P.M. on 7.11.2006. It is not in controversy that P.W.1 was actually onduty at the time when the occurrence has taken place. P.W.1 hascategorically deposed that he was on duty near the place; that at thattime, the deceased was found running; that four persons were chasinghim out of whom, a tall person called A-1 and A-2 by names and utteredthe words pointing to the deceased that he was the person whocommitted the murder of their brother Veera, and hence he should befinished off; that when that tall man pointed out so, A-1 and A-2 https://hcservices.ecourts.gov.in/hcservices/ began to cut the deceased on different parts of the body; that when hefell down, the tall person also joined others in cutting him; thatlooking at this, he (P.W.1) went tot he rescue; that at that time, thetall person and the other held him; that he tried his best, but couldnot relieve himself; that the tall person further told A-1 and A-2 tofinish him off till he dies; that accordingly they cut him; and thatwhen he (P.W.1) was relieved, all the four persons fled away from theplace of occurrence. All the Senior Counsel appearing for therespective appellants at the outset made a comment that P.W.1 couldnot have been in the place of occurrence. This contention has got tobe discountenanced for the simple reason that it was P.W.1 who was atthe place of occurrence and witnessed the same. He also made anattempt to rescue and that too as a Head Constable he was duty bound.He also narrated the way in which it has occurred. The very way inwhich he has given the narration in Ex.P1 and also evidence before thetrial Court, in the considered opinion of the Court, inspires theconfidence of the Court, and hence it has got to be believed. 21.So many comments and criticisms as recorded above, werelevelled against the prosecution case. According to the learnedSenior Counsel for the appellants, P.W.1 has given two statements, oneat the Government General Hospital and the other at C1 Flower BazaarPolice Station, and thus two statements have come into existence, andthe first statement has been suppressed, and now what was placedbefore the trial Court namely Ex.P1, was not the first information,but the second information which should have been rejected. Thiscontention cannot be countenanced for the simple reason that P.W.1 whowitnessed the occurrence has immediately given a message to P.W.30,the Sub Inspector of Police, who was on patrol duty. P.W.30immediately rushed to the spot. At that time, the deceased Dillibabuwas found breathing and alive. Then P.W.30 took the body along withone Rajendran and entered into the Government General Hospitalsituated nearby. Even according to the evidence of P.Ws.1 and 30,P.W.1 was at the place and gave an intimation to nearby C1 FlowerBazaar Police Station. P.W.31, the Inspector of Police, on dutyrushed to the spot and both of them later went inside the hospital,and they were informed that Dillibabu was declared dead. Thus itwould be quite clear that P.W.1 did not accompany the body ofDillibabu when it was taken to the hospital. 22.According to the learned Senior Counsel, a driving license wastaken from the pocket of Dillibabu wherein his name was noted asDillibabu, and thus the name of Dillibabu was actually known to P.W.1at that time itself, and when an enquiry was made by P.W.30, he shouldhave informed the name, and when P.W.30 along with Rajendran took thebody of Dillibabu to the hospital, P.W.30 informed to P.W.22, theDoctor, that the dead person was unknown person as found in Ex.P10,the accident register copy, and thus it would be quite clear that whenthe name of the deceased was actually known to P.W.1 and informed toP.W.22, then it should have been recorded in Ex.P10; but, the deadperson is shown as unknown person, and under the circumstances, itwould be quite evident that it was one later introduced. Further theywould add that all the four accused persons were shown as unknownpersons. At this juncture, these contentions have got to be rejected https://hcservices.ecourts.gov.in/hcservices/ outright for the simple reason that it is not the case of theprosecution that at the time of occurrence P.W.30 was present; but,immediately after the occurrence was over, on information of P.W.1,P.W.30 who was on patrol duty, rushed to the spot and took the body tothe hospital. At that time, Dillibabu was found breathing. In suchcircumstances, the anxiety of the Police Officer would have been totake him to the hospital in order to make him alive. But at the timewhen he was taken to the hospital, on the way he was found dead.Merely because P.W.30, who was not an eyewitness to the occurrence,has stated to the Medical Person that the deceased was an unknownperson and the name was not mentioned, the case of the prosecutioncannot be disbelieved. 23.The contention put forth that P.W.1 has given two statementscannot also be believed. P.W.31 was the Inspector of Police, attachedto the respondent police station, who came to the place and along withhim, P.W.1 entered into the hospital. P.W.31 has categoricallydeposed that he got only one statement from P.W.1 at the policestation, and on the strength of that statement, a case came to beregistered in Crime No.625 of 2006. A suggestion was also put contra;but, he has denied the same. As rightly pointed out by the learnedAdditional Public Prosecutor for the State, it is quite natural P.W.1should have been enquired by P.W.31 at the spot and also at thehospital. But, it did not mean that any statement could have beenrecorded. It is true that P.W.1 has stated that he was enquired, anda statement was also recorded. He has also further added that astatement was recorded at the police station within a short span oftime, and the case has been registered. If to be so, the evidence ofP.W.1 that a statement was recorded at the Government General Hospitalwas over enthusiastic or even it can be taken as truncated document,by which the Court is unable to agree with the contentions put forth. 24.In the case on hand, all the narrative of the incident byP.W.1 would clearly indicate that he has given the correct version asan eyewitness. The way in which P.W.1 has conducted himself at thetime of occurrence by going to the rescue in order to save the personwhen he was being brutally attacked by the other would be indicativeof the fact that he has actually been present at the place where theoccurrence has taken place. This evidence adduced by P.W.1 stoodcorroborated by the medical evidence. Now at this juncture, theearliest document which has come into existence in the case on hand isEx.P10, the accident register copy. The statement that four unknownpersons have attacked him is also made mention thereof. Thecontention put forth that a license has been recovered; that the namehas actually been known to the witness, and therefore it has not beenstated so, all these things have got to be rejected for the simplereason that the identify of the deceased Dillibabu was never disputedby the appellants at any point of time, and it is also not inquestion. Thus, the person who was attacked was Dillibabu, and hedied. The inquest has also been made on his dead body. Under thecircumstances the earliest statement given as unknown person, will notin any way affect the prosecution case. Further, four unknown personsand the time and date of occurrence are also made mention in thatdocument. https://hcservices.ecourts.gov.in/hcservices/

25.The further contention is that the motorbike that was actuallyfound in the place of occurrence is exhibited in Ex.D1, Dhinamalarnewspaper, and D.W.1 has been examined; that P.W.7 is the father, andP.W.9 is the brother-in-law and also the owner of the motorbike; thatall have deposed that he took the motorbike that day; that theprosecution was unable to explain how the motorbike was actually foundin the place of occurrence; that P.W.1 cannot also account for thesame, and thus the evidence of P.W.1 has got to be doubted. But thiscontention cannot be countenanced. P.Ws.7 and 9 have deposed thatDillibabu actually took the motorbike that day. The case of theprosecution was that he went to the Central Prison to meet hisfriends. Even assuming to be so that he went to the Central Prison inthe motorbike and he was coming back, the case of the prosecution wasthat he was actually waylaid, and all the four persons were chasinghim. Even according to the evidence of P.W.1, he witnessed thedeceased person running and four persons chasing him with deadlyweapons. From this it would be quite clear that at the place whereP.W.1 found so, the motorbike was actually not driven by him. At thisjuncture, it remains to be stated that the evidence of D.W.1 was of noavail to the defence. According to D.W.1, when and by whom thephotographs were taken was not known to him. Under the circumstances,no reliance could be placed on either the evidence of D.W.1 or thenewspaper what is now taken by the defence before the trial Court orbefore this Court. So long as there is nothing to indicate that themotorbike was actually driven upto the place where he was attacked,the Court cannot accept the contention put forth by the appellants.That apart, the non-explanation tendered by the prosecution as to theavailability of the motorbike in no way would affect the prosecutioncase.26.Much comment was made on the inquest made that according tothe Investigator, P.W.31, the inquest was made on the evening hours of7.11.2006; but, column No.14 would indicate that the dead body washanded over to the relations at about 2.30 P.M. on 8.11.2006; andthat by insertion of this clause, the inquest report could not havebeen prepared on the previous day. Now at this juncture, it could bemade clear that the inquest is actually conducted only to make thecause of death known. In the case on hand, the FIR is the earliestdocument wherein it is mentioned that four persons have attacked him,and cause of death was also made known. As could be seen from theavailable materials, there was a delay caused in the conduct ofinquest by which the prosecution case, in the considered opinion ofthis Court, cannot be rejected while other evidence is available tothe prosecution. 27.As far as the identification parade is concerned, this Courtis of the considered opinion that it was of no significance or legalconsequence in the present case. P.Ws.1, 3 and 29 were taken foridentification parade. But P.W.1 was the only person who was able toidentify, and others could not identify any one of the accused.Further at the time of identification parade, a complaint was made bythe accused that they were actually shown to the witnesses at thepolice station. It is a case where all the accused personssurrendered before the Court, and police custody was ordered. They https://hcservices.ecourts.gov.in/hcservices/ were kept in police custody for number of days. It is quite naturaland possible that these accused could have been shown to the witnesseseasily. Under the circumstances, it would be quite easier for P.W.1and that too a police witness, to identify them. In every caseidentification parade is not a must. In a case where identificationparade was conducted and the witnesses were unable to identify, thesubsequent evidence before the Court cannot get any evidentiary value.Apart from that, in the instant case, when they were in the policecustody and the witnesses were attached to the very same policestation, there is all possibility for them to identify quite easily atthe time of parade and also before the Court, and thus theidentification parade has got to be rejected since it was of noconsequence or legal value at all. 28.Apart from the above, the witnesses examined for the purposeof the confessional statements and recovery of the material objectsnamely P.Ws.26 and 28, have turned hostile. Thus the alleged recoveryhas got to be rejected, and they were of no legal consequence. 29.As could be seen from the available materials, the prosecutionhad to its benefit the evidence of P.W.1, who has immediately reportedthe matter, and then the case came to be registered, and investigationhas been done, and they were actually brought before the Court. Nowmarshaling the evidence available, this Court is of the consideredopinion that in the earliest document though it is mentioned as fourunknown persons, P.W.1 has clearly stated the names of two persons asidentified by the third tall man, and they were actually A-1 and A-2before the trial Court. As far as the third man is concerned, noother physical features are mentioned except calling him as a tallman. Apart from that, the names of A-3 and A-4 are not found. Insuch circumstances, identification parade should have been conducted,but not done so. As pointed out above, the identification parade wasof no avail to the prosecution case. 30.Added circumstance is the evidence of P.W.8. According toP.W.8, A-1 and A-2 came to her house and informed that it was herbrother Dillibabu who murdered their brother Veera already, and underthe circumstances, they would murder him. She has also deposed thatA-1 and A-2 came to her house and threatened her. Following thesame, the occurrence has taken place. The names of A-1 and A-2 areactually found in the FIR, and the way in which P.W.1 narrated theoccurrence would clearly indicate that A-1 and A-2 have role in thecommission of the offence. 31.Yet other circumstance is that it was A-1 and A-2 who haveactually cut the deceased Dillibabu on the direction of the tall manwho was by the side. As far as A-4 is concerned, the name of A-4 doesnot find place in the FIR, and in respect of the recovery, witness hasnot been examined before the trial Court. As far as the tall man andthe other are concerned, it cannot be made certain that they were A-3and A-4 who were present at the place of occurrence. 32.As regards A-1 and A-2, this Court is of the consideredopinion that their role is actually proved before the trial Court, and https://hcservices.ecourts.gov.in/hcservices/ the evidence available would indicate that A-1 and A-2 haveparticipated in and committed the crime. Under the circumstances, A-1and A-2 have got to be found guilty as one done by the trial Court,and the judgment of the trial Court in their regard has got to besustained. As regards A-3 and A-4, the judgment of the trial Courthas got to be set aside, and they are entitled for acquittal.33.In the result, C.A.Nos.194 and 813 of 2008 are allowed,setting aside the judgment of the trial Court in respect of A-3 and A-4. A-3 and A-4 are acquitted of the charges levelled against them.They are directed to be released forthwith unless their presence isrequired in connection with any other case. The fine amounts if anypaid by them will be refunded to them.34.In the result, C.A.No.197 of 2008 is dismissed confirming thejudgment of the trial Court in respect of A-1 and A-2.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarnsvTo:1.The Additional District and Sessions Judge,FTC No.II, Chennai.2.-do- Thro the Prl.Sessions Judge,Chennai.3.The VIII Metropolitan Magistrate,George Town, Chennai.4.-do- thro The Chief Metropolitan Magistrate,Egmore,Chennai.5.The Superintendent,Central Prison, Puzhal, Chennai.6.The District Collector,Chennai.7.The Director General of Police,Mylapore, Chennai-4.8.The Inspector of Police,C1 Flower Bazaar Police Station,Chennai. https://hcservices.ecourts.gov.in/hcservices/

9.The Public Prosecutor,High Court,Madras.10.The Section Officer,Crl.Section, High Court,Madras.+1cc to Mr.L.Mahendran, Advocate Sr 35519NJK (CO)km/27.8.C.A.Nos.194, 197 and 813 of 2008