Muthuprakash @ Prakash v. State represented by The Inspector of Police Sholavaram Police Station Crime No.141 of 2003

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 22-12-2009CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALILNGAMANDTHE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAHCRL.A.No.587 of 20091.Muthuprakash @ Prakash2.Muruganandham3.Kumaravel4.Ramesh5.Suresh.. Appellants(Accused to 2 to 6) vsState represented byThe Inspector of PoliceSholavaram Police StationCrime No.141 of 2003.. Respondent (Complainant)Criminal appeal preferred under Sec.374 of the Code of CriminalProcedure against the judgment of the Principal Sessions Judge,Thiruvallur, made in S.C.No.107 of 2006 dated 28.8.2009.For Appellants: Mr.N.Doraisamy Amicus Curiae for Appellant A-2 Mr.P.Prince Premkumarfor Appellants 2,4 & 5 A-3, A-5 & A-6 Mr.V.Krishnamurthy for 3rd Appellant A-4For Respondent: Mr.Babu Muthu Meeran Additional PublicProsecurorJUDGMENT(Judgment of the Court was delivered by M.CHOCKALILNGAM, J.)This appeal challenges a judgment of the Principal SessionsDivision, Thiruvallur, made in S.C.No.107 of 2006 whereby theappellants five in number, along with another arrayed as A-1, stoodcharged under Sections 148, 341 and 302 read with 149 IPC, tried,found guilty as per the charges and awarded one year RigorousImprisonment under Sec.148 read with 149 IPC, three months Rigorous https://hcservices.ecourts.gov.in/hcservices/ Imprisonment under Sec.341 read with 149 IPC and life imprisonmentalong with a fine of Rs.1000/- and default sentence under Sec.302read with 149 IPC.2.Short facts necessary for the disposal of this appeal can bestated as follows:(a) The appellants/A-2 to A-6, A-1 who died pending trial, andalso the deceased Ponmani belonged to Gandhi Nagar, Chennai. P.W.1is the sister's son of the deceased. P.W.2 is the wife and P.Ws.3, 5and 7 are the sisters of the deceased, while P.W.4 is the daughter,and P.W.9 is the mother of the deceased. They were all residents ofthe same place. A few days prior to the occurrence, there was awordy altercation between A-1 and the deceased, and a complaint wasgiven by A-1 to the respondent police station, and the same wastreated as a petition and was pending enquiry. (b) On the date of occurrence that was 8.3.2003, at about 8.15P.M., the deceased was sitting in a chair in front of the house. Atthat time, P.W.1 reached the house from work. P.Ws.1 to 5, 7 and 9were all present. At that time, all the accused persons came inthree motorbikes, marked as M.Os.3, 4 and 5 respectively, and theywere all armed with deadly weapons. It was A-2 who pushed Ponmanidown, and when the deceased fell down, all of them surrounded him.It was A-3 who attacked him with an aruval on the shoulder, and A-4attacked him on the left side of the neck. A-5 and A-6 cut him ondifferent parts of the body. The same was witnessed by all theseeyewitnesses. When there was a distressing cry, all the accusedpersons left in the respective motorbikes in which they came.(c) P.W.18, the brother of the deceased, took the severelyinjured Ponmani to the Government General Hospital where P.W.28 wasthe Doctor, who on medical examination, declared him dead. Theaccident register copy is marked as Ex.P15. On receiving the messagethat Ponmani died, P.W.1 immediately rushed to the respondent policestation and gave Ex.P1, the complaint, on the strength of whichP.W.33, the Sub Inspector of Police, who was on duty at that time,registered a case in Crime No.141 of 2003 under Sections 147, 148 and302 of IPC. The printed FIR, Ex.P21, was despatched to the Court. (d) P.W.35, the Inspector of Police of that Circle, on receiptof the copy of the FIR, took up investigation in the morning hours of9.3.2003, proceeded to the scene of occurrence, made an inspectionand prepared an observation mahazar, Ex.P3, and also a rough sketch,Ex.P24. He recovered material objects from the place of occurrence.Then he went to the mortuary, conducted inquest on the dead body ofPonmani in the presence of witnesses and panchayatdars and preparedan inquest report, Ex.P25. Thereafter, he gave a requisition to thehospital authorities for conduct of autopsy.(e) P.W.34, the Tutor in Forensic Medicine, Madras MedicalCollege, on receipt of the said requisition, conducted autopsy on thedead body of Ponmani and has noticed the following external injuries:"1)Raddish brown abrasion 7x0.5cm over front of leftshoulder. https://hcservices.ecourts.gov.in/hcservices/ 2)Incised wound 13x0.3cm x skin deep 2cm above injury No.1.3)Oblique incised 4x1x0.3cm situated below the neck 1cmaway from supra sternal notch on left side.4)Oblique incised wound 15x0.5cm x skin deep over left sideof face cutting the cartilage of ear at the level of upperone-third and lower one-third of left ear exposing theunderlying cartilage.5)Oblique chop wound 16x1cm x bone deep involving leftfrontal, parietal region of scalp with anterior end 3cmfrom midline and posterior end in the midline.On opening the scalp, there is underlying cut in the bone16cm long with depressed fracture in the center 2x0.5cminvolving the left frontal and left parietal bone. Durashows cut 8cm long in the left parietal region. On openingthe dura there is a corresponding cut in the brain in theparietal lobe 6x0.5x1cm.6)Oblique chop wound 11cm long in back of left shoulder11x1cm x bone deep. On dissection there is a cut in theunderlying muscles.7)Oblique chop wound 12x1cm x bone deep seen over top ofleft shoulder 5cm from the tip of left shoulder with theprevious injury bisecting left posteriorly at the distanceof 4cm from the posterior end.8)Oblique incised wound 10x1cm x muscle deep over front ofleft shoulder joint with the tailing of downwards andinwards touching the previous injury at its anterior end.9)Oblique incised wound 6x1x1.5cm over the back of rightshoulder joint 12cm from the midline with the tailing of6cm directed outwards and downwards.10)Oblique incised wound 10cm long bevelling of skin xmuscle deep seen over back of neck on left side.11)Laceration 3x2cm x skin deep above the injury No.10.12)Oblique chop wound 11x5cm x bone deep over outer aspectof left knee joint with tailing of upwards and inwards.13)Reddish brown abrasion 11x0.5cm over outer aspect ofleft buttock.14)Reddish brown abrasion 11x0.5cm over left side ofabdomen extending from umbilicus upwards.15)Oblique incised wound 8x0.5cm x bone deep over left sideof front of neck 6cm above supra sternal notch, 10cm fromleft mastoid process. On dissection the underlying musclesare found severed. On further dissection, carotid sheet isfound cut with the severance of carotid artery, jugular https://hcservices.ecourts.gov.in/hcservices/ vein and phrenic nerve. On further dissection, trachea isfound severed at the level of thyroid cartilage. Onfurther dissection, there is a nick in the body of 4thCervical Vertebra.16)Incised wound 3x0.5cm x skin deep over outer aspect ofleft elbow joint.17)Incised wound 3x0.5cm x skin deep on the inner aspect ofright elbow joint."The Doctor has issued a postmortem certificate, Ex.P23, with hisopinion that the deceased would appear to have died of shock andhaemorrhage due to multiple injuries.(f) Pending investigation, the Investigator arrested A-1, A-2,A-3, A-4 and A-6 on 9.3.2003, in the presence of P.Ws.22 and 23.They volunteered to give confessional statements. The admissibleparts of the confessional statements are marked as Exs.P26, P28, P30,P32, P33 and P34 respectively. Pursuant to the same, they producedM.Os.9, 10, 11, 12 and 13, aruval and vettukathi respectively, whichwere recovered under respective mahazars. They were sent forjudicial remand. (g) A-5 was arrested on 23.3.2003, when he came forward to givea confessional statement. The same was recorded, and the admissiblepart is marked as Ex.P19, pursuant to which he produced M.Os.3, 4 and5, motorcycles, which were recovered under a cover of mahazar. Healso produced a knife, M.O.6, which was recovered under a cover ofmahazar.(h) Pursuant to the requisition made, all the material objectsrecovered from the place of occurrence and from the dead body, andthe weapons of crime recovered from the accused on productionpursuant to the confessional statements, were actually subjected tochemical analysis by the Forensic Sciences Department, which broughtforth Ex.P43, the chemical analyst's report, and Exs.P42 and P44, theserologist's reports. P.W.36, the Inspector of Police, took upfurther investigation and on completion of the same, filed the finalreport.3.The case was committed to Court of Sessions, and necessarycharges were framed. In order to substantiate the charges, theprosecution examined 36 witnesses and also relied on 44 exhibits and18 material objects. On completion of 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. No defencewitness was examined. The trial Court heard the arguments advancedon either side and took the view that the prosecution has proved thecase beyond reasonable doubt and hence found the appellants guiltyand awarded punishments as referred to above. The charges stoodabated as against A-1 since he died pending trial. Hence this appealat the instance of the appellants. https://hcservices.ecourts.gov.in/hcservices/

4.Advancing arguments on behalf of A-2, the learned CounselMr.N.Doraisamy would submit that in the instant case, the prosecutionmarched P.Ws.1 to 5, 7 and 9 as eyewitnesses; that admittedly, theyare all closely related to the deceased and hence they are allrelated witnesses; and that if the careful scrutiny test is applied,in view of the inconsistencies among the evidence and also self-inconsistency within the evidence, their evidence should have beendiscarded. 5.Added further the learned Counsel that even as per theprosecution case, there was a wordy altercation a few days prior tothe occurrence, between A-1 and the deceased, and A-1 gave acomplaint before the respondent police, and the same was also pendingenquiry; that under the circumstances, the motive even as per theprosecution was only attributed to A-1 as against the deceased; thatall other accused had no motive at all; and that it would be quiteclear that they have been added as per the desire of the prosecutionwitnesses. 6.The learned Counsel would further submit that it was P.W.18,the brother of the deceased, who took the deceased to the hospital,and he was examined by P.W.28, the Doctor, who has issued Ex.P15, theaccident register copy; that a perusal of the same would clearlyindicate that only three known persons participated in the crime;that now the prosecution came forward with a case that six personswere involved in the ofence; that the explanation that was tenderedby the prosecution was that P.W.18 at the time of occurrence was notavailable at all; and that this contention of the prosecution shouldnot be accepted by the Court for the simple reason that according tothe evidence of P.W.3, P.W.18 was also present at the time ofoccurrence. 7.Added further the learned Counsel that in the instant case, asper the evidence of the witnesses, the deceased was actually sittingin a chair in front of the house; but, neither the chair wasrecovered, nor it finds place in the observation mahazar or the roughsketch; that it would be quite clear that the same was also fatal tothe prosecution case; that apart from that, there was a huge andinordinate delay in FIR reaching the Court; that even as per theaccident register copy, Ex.P15, the occurrence has taken place atabout 7.40 P.M.; that according to the FIR, the time of occurrence isshown as 8.15 P.M.; that according to P.W.33, the Sub Inspector ofPolice, who registered the case, the FIR was handed over to theConstable immediately, and he went over to the Judicial Magistrate tohand over the same, and he returned that night itself; that theendorsement made by the Judicial Magistrate in the FIR, wouldindicate that it has reached the Court only at 9.30 A.M. on the nextday i.e., 9.3.2003; that the prosecution had no explanation to offer;that this would clearly indicate that the FIR could not have comeinto existence as put forth by the prosecution at about 9.45 P.M. on8.3.2003; that there are lot of discrepancies in the evidence of theso-called eyewitnesses; that all would clearly indicate that theycould not have seen the occurrence at all, and hence the prosecutionhas miserably failed to prove its case and he is entitled foracquittal. https://hcservices.ecourts.gov.in/hcservices/

8.Advancing arguments on behalf of A-4, the learned CounselMr.V.Krishnamoorthy would submit that in the instant case, number ofpersons who are actually involved in the crime is found to bediscrepant; that the accident register copy would indicate only threepersons; but, the prosecution case is six persons; and that in such asituation, it would cast a doubt on the entire prosecution story. Hewould further state that his contention is supported by a decision ofthe Division Bench of this Court reported in 2005-2-L.W. (CRL.) 787(SUBRAMANI @ MANIAN V. SUBRAMANIAN). 9.Added further the learned Counsel that as far as the scene ofoccurrence is concerned, it is highly doubtful; that the name of A-4is actually Kumaravel; that in the FIR his name is shown asKumaravel; but, P.Ws.1 and 3 who were claimed to be the eyewitnesses,have given evidence before the trial Court that A-4 is only Kumar;that under the circumstances, the name of A-4 is found to bediscrepant; that it would also be indicative of the fact that it wasnot he who was involved in the crime; that P.W.9, the mother of thedeceased, would claim that she was an eyewitness; but, on thecontrary, P.W.12, the son-in-law of P.W.9, has categorically statedthat at the time of occurrence, P.W.9 was well available in hishouse, and thus she could not have been in the place of occurrence atall; and that in such circumstances, the evidence of P.W.9 shouldhave been discarded by the trial Court. 10.Added further the learned Counsel that as far as P.W.16 wasconcerned, he has turned hostile; that as far as the other witnessesare concerned, the evidence of the Investigating Officer regardingthe registration of the case, commencement of investigation,preparation of the observation mahazar and sketch and recording ofstatements all are found to be thoroughly discrepant and alsoinconsistent with the other part of the evidence put forth by theprosecution; that as far as the recovery of motorbikes is concerned,the prosecution examined P.Ws.22 and 23; that both have turnedhostile and they have not supported the prosecution case; that oncethe recovery of the motorbikes could not be proved by theprosecution, it would also cast a reasonable doubt on the story ofthe prosecution that all the accused came in three motorbikes andreturned by the same; that all would go to show that the prosecutionhas miserably failed to prove its case, and hence A-4 is entitled foracquittal.11.The learned Counsel appearing for A-3, A-5 and A-6 adoptedthe above arguments. Further he would add that the evidence wasinconsistent not suiting with the prosecution story, and hence theywere all entitled for acquittal in the hands of this Court.12.The Court heard the learned Additional Public Prosecutor onall the above contentions and paid its anxious consideration on thesubmissions made.13.It is not in controversy that one Ponmani, in an incidentthat had taken place at about 8.15 P.M. On 8.3.2003, was done todeath, and he was taken to the hospital by P.W.18 one of therelatives namely brother. He was declared dead by P.W.28, the https://hcservices.ecourts.gov.in/hcservices/ Doctor. The accident register copy is Ex.P15. As far as the time ofoccurrence and also the cause of death as put forth by theprosecution are concerned, they were questioned before this Court bythe learned Counsel for the appellants, and they have not even raisedany little finger before the trial Court. Following the inquest madeon the dead body by P.W.35, the Inspector of Police, it was subjectedto postmortem by P.W.34, the Doctor, who has given a categoricalopinion before the Court as a witness and also through the contentsof the postmortem certificate that Ponmani died out of shock andhaemorrhage due to multiple injuries. Hence, it would be quite clearthat the prosecution has brought forth sufficient evidence to recorda finding that Ponmani died out of homicidal violence.14.In order to establish that all the accused persons namely theappellants herein along with the other ranked as A-1, came in threemotorbikes and attacked Ponmani at the time and place of occurrence,the prosecution examined P.Ws.1 to 5, 7 and 9 as eyewitnesses. It isalso true that as narrated above, they are all closely related to thedeceased. This Court is not unmindful of the caution made by theApex Court and also by the settled principles of law that beforeaccepting the evidence of a witness who is related to the deceased,the Court must apply the careful scrutiny test. The Court must alsopoint out that to accept the evidence of the relations, there is nobar or ban in law. But the Court must apply the above test. In thecase on hand, among the witnesses marched, as rightly pointed out bythe appellants' Counsel, the presence of only one witness namelyP.W.9, the mother of the deceased, at the time of occurrence isdoubtful in view of the evidence of P.W.12 that she was present inhis house at that time. Except P.W.9, all other witnesses areinmates of the house, and naturally they should have been present andthat too at about 8.00 or 8.30 P.M. when the occurrence has takenplace. All these witnesses have clearly spoken not only about thetime of occurrence, but also about the fact that the deceased wasactually sitting in a hair in front of the house, and P.W.2, the wifeof the deceased, got inside to get a cup of water for him, and beforeher arrival, all the persons were found surrounding him, and theyhave all attacked him indiscriminately. 15.The learned Counsel for the appellants made much comment onthe contents of the accident register copy, Ex.P15, that only threeknown persons are involved. But, at this juncture, it is pertinentto point out that the evidence of P.W.18 would clearly indicate thathe was not an eyewitness, and he was only informed about theoccurrence. In such circumstances, as far as the contents of theaccident register copy are concerned, this Court is of the consideredopinion that it cannot be given any weight in the face of theevidence of the eyewitnesses who were present and witnessed theoccurrence. Apart from this, the ocular testimony projected throughthese witnesses stood fully corroborated by the medical opinioncanvassed. The postmortem certificate would clearly indicate thatthere were number of external cut injuries throughout the body, andhe actually succumbed to those injuries immediately. 16.Apart from the above, A-1, A-2, A-3, A-4 and A-6 werearrested the next day, and they came forward to give confessionalstatements. They were all recorded in the presence of witnesses, and https://hcservices.ecourts.gov.in/hcservices/ the admissible parts are also marked as Exs.P26, P28, P30, P32, P33and P34 respectively. They have produced M.Os.9, 10, 11, 12 and 13,aruval and knife respectively, which were the weapons of crime.M.O.6, knife, was also recovered on production by A-5. Thus, therecovery of weapons of crime from the accused on production pursuantto the confessional statements and that too as spoken to by thewitnesses would clearly be indicative of the nexus of the crime withthe accused. Now a comment was made by the learned Counsel that asfar as the recovery of the motorbikes, M.Os.3, 4 and 5, is concerned,P.Ws.22 and 23 have turned hostile. Even after barring that evidence,the prosecution has sufficient evidence in its hand pointing to theguilt of the accused. 17.As far as the comment made by the learned Counsel that thereis discrepancy as to the time of occurrence since it is found in theaccident register copy as 7.40 P.M. and as per the FIR it is 8.15P.M., is concerned, it cannot make much of the matter. Even P.W.33,the Sub Inspector of Police, has categorically stated that it was hewho received Ex.P1, the complaint, and registered the case at aparticular point of time wherein the entire incident is narrated.Now, this Court is able to see delay in the FIR reaching the Court.At this juncture, the learned Counsel for the appellants pointed tothe evidence of P.W.33, the Sub Inspector of Police, stating that theConstable who took the FIR to the Judicial Magistrate, returned thatnight itself at about 11.00 P.M. This Court is of the view that theevidence of the Sub Inspector of Police is found to be so carelessfor the simple reason that when the FIR is looked into, the JudicialMagistrate has initialed at about 9.30 A.M. on the next day namely9.3.2003. It is true that there is a delay. But, this delay in FIRreaching the Court by itself cannot be a reason to doubt or rejectthe prosecution story or its case. 18.It is also true that there are discrepancies brought to thenotice of the Court among the witnesses. But, it is settledproposition of law that once they are found to be minor most, noimportance could be attached or it will not tilt the balance or takeaway the rigor of the prosecution case. 19.Another point that was raised by the learned Counsel was thata few days prior to the occurrence, following the wordy altercation,A-1 went to the respondent police station and gave a complaint, andthe same was pending enquiry, and hence A-1 alone had got motiveagainst the deceased. This Court is of the view that once all theother accused persons have followed A-1, what made the other accusedpersons to follow A-1 at the time of occurrence should be well withinthe knowledge of those accused persons, and it cannot be or need notbe explained by the prosecution. Under the circumstances, all thecontentions put forth by the learned Counsel for the appellants asnarrated above do not carry any merit or merit acceptance by theCourt, and the prosecution had sufficient evidence pointing to theguilt of the appellants/accused that all of them pursuant to thecommon object, proceeded to the spot, and they have actually attackedhim and caused his death. 20.As far as A-2 is concerned, the learned Counsel would submitthat no overt act is attributed to him, and what are all attributed https://hcservices.ecourts.gov.in/hcservices/ by the prosecution against him was that he pushed the deceased downfrom the chair. But the prosecution case that they formed an unlawfulassembly, and in furtherance of the common object, all of them armedwith deadly weapons have gone to the house of the deceased and thattoo during night hours and attacked him indiscriminately and causedinstantaneous death would clearly indicate that they have acted infurtherance of the common object. The prosecution was successfulenough in bringing them under Sec.302 read with 149 IPC. The trialCourt has marshaled the evidence proper, considered the same andfound them guilty as per the charges and rightly too. Nothing isavailable for the appellants to disturb the judgment either factuallyor legally. 21.In the result, this criminal appeal fails and the same isdismissed confirming the judgment of the trial Court. Mr.N.Doraisamy, Advocate, appointed as Amicus Curiae to arguethe appeal on behalf of A-2, is entitled to get remuneration from theLegal Aid, Madras. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarnsvTo:1.The Principal Sessions Judge, Thiruvallur2.The Inspector of Police Sholavaram Police Station Crime No.141 of 20033.The Public Prosecutor, High Court, Madras.4. The District Collector, Thiruvallur,5. The Director General of Police, Mylapore, Chennai6. The Superintendent, Central Prison, Puzhal, Chennai7. The Secretary, Legal Aid, High Court, Madras.+ One cc to Mr.N.Doraisamy, Advocate, SR 70710+ Two ccs to Mr.P.Prince Premkumar, Advocate, SR 70734CRL.A.No.587 of 2009JRG (CO)RH (12.1.10)