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SUBRAMANIAN versus THE STATE REPRESENTED BY

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Subramanian v. The State represented by - Criminal Appeal No.208 of 2004 [2007] RD-TN 437 (2 February 2007)

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 02/02/2007

CORAM:

THE HONOURABLE MR.JUSTICE D.MURUGESAN

AND

THE HONOURABLE MR.JUSTICE G.RAJASURIA

Criminal Appeal No.208 of 2004

1.Subramanian

2.Bala alias Balasubramanian

3.Sakthi alias Sakthivel ... Appellants Vs

The State represented by

The Inspector of Police,

Sankarankoil Town Police Station,

Tirunelveli District.

Crime No.307 of 2003 ... Respondent Prayer

Appeal filed under Section 374 of the Code of Criminal Procedure, against the judgment passed by the learned Principal Sessions Judge, Tirunelveli, Tirunelveli District, in S.C.No.200 of 2003, dated 29.12.2003 in convicting the appellants 1 to 3 for the offence punishable under Section 302 I.P.C read with Section 34 I.P.C and sentencing them to undergo life imprisonment and in further ordering the appellants 1 and 2 each to pay a fine of Rs.2,000/- and in default to undergo six months rigorous imprisonment.

For Appellants ... Mr.S.Nagamuthu for

Mr.C.Mayilvahana Rajendran For Respondent ... Mr.Senthoorpandian

Additional Public Prosecutor :JUDGMENT



G.RAJASURIA, J

This appeal is directed as against the judgment dated 29.12.2003 in S.C.No.200 of 2003 passed by the learned Principal Sessions Judge, Tirunelveli, Tirunelveli District, whereby the appellants 1 to 3 were convicted and sentenced to undergo life imprisonment under Section 302 I.P.C read with Section 34 I.P.C and to pay a fine of Rs.2,000/- each by the appellants 1 and 2 and in default to undergo six months rigorous imprisonment. No fine imposed on the appellant No.3.

2. The facts giving rise to the filing of this appeal as stood exposited from the records could be portrayed thus:

(i) One Lakshmi was living with her son Mani and her daughter in a house at 3rd Street, Lakshmipuram, Sankarankoil. Whereas one Poomari, the daughter of Ramarajan had also lived in the same area. Mani and Poomari loved each other to the disgust of the family members of Poomari which resulted in Poomari consuming poison and dying the death ignobly. The family members of Poomari who were proceeded against by the police for having they secretly disposed of her dead body, were of the opinion that the police did so only at the instigation of Mani. Inasmuch as the family members of the deceased Poomari, including her brother A.1 herein harboured enmity as against Mani on the ground that it was Mani who was responsible for the death of Poomari's suicide and that he was also responsible for the police having proceeded as against them. While so, A.1 and his friends namely A.2 and A.3, in cahoot with one another, having the common intention to murder Mani, at about 07.45 a.m., followed the deceased Mani and P.W.1 Kumar, who were proceeding on their separate cycles together from the house of the deceased so as to attend the calls of nature on the mud road near Kalugumalai bus stand abetting Thiruvengadam Road in the same village. (ii) At that time, A.1, A.2 and A.3 armed with billhooks dealt blows on the deceased Mani and caused fatal injuries to him and fled away from the scene of occurrence. P.W.1 rushed to Mani's house and informed his mother Lakshmi P.W.4 about the occurrence. He then proceeded to the Police Station and lodged the oral complaint with the Sub Inspector of Police P.W.16 Balasubramanian, who reduced it into writing as per Ex.P.19 and obtained Ex.P.1, the signature of P.W.1 thereon. Whereupon, the case was registered as per Ex.P.20 the printed F.I.R under Cr.No.307 of 2003 for the offence of Section 307 I.P.C as against A.1 to A.3 and he also obtained the signature of P.W.1 thereon also. Meanwhile, P.W.4 Lakshmi, the mother of the deceased rushed to the spot and there P.W.5 who is the relative of the deceased also came and took the fatally injured Mani to the Government Hospital, Sankarankoil for treatment. However, around 10.45 p.m., itself on the same day, the deceased Mani succumbed to his injuries. The police also altered the penal offence into one under Section 302 I.P.C. P.W.17, the Investigating Officer took up the investigation and conducted inquests as per Exs.P.23 to P.25 and sent the dead body for post-mortem. The police visited the scene of occurrence and prepared observation mahazar Ex.P.2 and recovered M.O.1 and M.O.4 to M.O.6 under cover of mahazar Ex.P.3. The Doctor conducted the post-mortem on the dead body of the deceased Mani as per the requisition Ex.P.11 given by the Investigating Officer and furnished Ex.P.12 the post-mortem report. The police arrested A.1 and A.2 at Sankarankoil - Kalugumalai main road on 27.03.2003 at about 05.30 a.m., near a temple and in pursuance of the admissible portion of the confession statement of A.1 recorded as per Ex.P.4 dated 27.03.2003, the Investigating Officer recovered M.O.9 to M.O.11, billhooks. The police also arrested A.3 subsequently. The Investigating Officer sent the material objects to the experts through Court for obtaining opinion. After completing the investigation, the police laid the police report as against A.1 to A.3 before the Magistrate concerned, who committed the case to the Court of Sessions which framed the charges as against all accused under Section 302 I.P.C read with Section 34 I.P.C. Total denial was the defence.

3. During trial, by way of unfolding the prosecution case, P.W.1 to P.W.17 were examined and Exs.P.1 to P.26 were marked along with M.O.1 to M.O.6. Neither oral nor documentary evidence was let in on the side of the defence.

4. The trial Court ultimately found all the three accused guilty of the offence under section 302 I.P.C read with Section 34 I.P.C and sentenced them to undergo life imprisonment and imposed fine on A.1 and A.2 only.

5. Being aggrieved by the judgment of the trial Court, the appellants preferred this appeal on the following main grounds among others:

(i) Despite P.W.1 the person who was alleged to be the author of the F.I.R, turned hostile, the trial Court convicted the accused. (ii) P.W.1 in his deposition, even though narrated to the effect that some four persons committed the offence, the police arrayed only three persons as accused.

(iii) The conduct of prosecution witnesses 1 to 4 were abnormal and based on that, the trial Court had no justification to record conviction as against the accused.

(iv) The absence of the Test Identification Parade is fatal to the case of the prosecution. P.W.2 has wrongly identified A.2 for A.3 and vice versa. The witnesses also did not speak about the motive for the crime convincingly. (v) P.W.2 and P.W.3 were not uniform in narrating the overt acts committed by the accused. Despite P.W.3 having admitted that he was a stock witness, the trial Court relied upon his evidence.

(vi) There were contradictions in the versions of the witnesses. The communication between P.W.4 and P.W.5 has not been proved satisfactorily. (vii) P.W.8 the Village Administrative Officer and P.W.9 the village assistant, did not support the prosecution case relating to the recovery of the weapons and P.W.6 also turned hostile. (viii) There were prevaricative versions relating to the time of occurrence. The Doctor P.W.11 opined that the life of the deceased could have been saved if he had been treated immediately and the trial Court ought to have held that the injuries sustained by the deceased Mani were not serious. The natural injuries were not co-related with the weapon. (ix) Accordingly, the appellants prayed for setting aside the judgment of the trial Court.

6. Points for consideration are: (i) Whether the motive for the crime was established by the prosecution? (ii) Whether the conduct of the defacto complainant P.W.1 in having turned partly hostile, is fatal to the case of the prosecution? (iii) Whether the evidence of the eyewitnesses P.W.2 and P.W.3 coupled with the evidence of other witnesses including the medical evidence failed to establish the guilt of the accused as contended by the appellants/accused?

(iv) Whether there is any infirmity in the judgment of the trial Court? Point No:(i)

7. Right at the outset, we may highlight that Lakshmi P.W.4, the mother of the deceased clearly and cogently narrated about the motive part of the crime by expatiating that the deceased Mani had love affair with A.1's sister Poomari; Poomari asked Mani to marry her for which Mani asked her to wait till the marriage of his sister was solemnised; after knowing about the love affair between the deceased Mani and Poomari, the family members of Poomari including A.1 took exception for her proposal to marry Mani, thereupon Poomari committed suicide; consequently, A.1 intimidated Mani and that Mani during his life time, informed his mother P.W.4 about all those facts. As such the evidence of P.W.4 is quite admissible relating to the motive part of the crime as she being the mother of the deceased was competent to speak about it and there is nothing strange about it. She was informed about all those facts by Mani himself.

8. P.W.5 the close relative of the deceased Mani also corroborated the evidence of P.W.4 relating to the motive part of the crime. In Ex.P.19 F.I.R itself, the motive part of the crime is found set out. However, on the defence side, the admissibility of Ex.P.19 has been challenged in view of P.W.1, the author of it, having turned partly turtle while deposing before the Court. For the reasons that would be adhered to in discussing Exs.P.19 and P.20 infra, at this stage, we hold that the versions in Ex.P.19 relating to the motive part of the crime as informed by P.W.1 himself to the police and found written as per Ex.P.19 are admissible and they further buttress and fortify the versions of P.W.4 and P.W.5.

9. P.W.15 Sivakumar, the Sub Inspector of Police, would speak about the factum of the registration of the case on 21.03.2002 relating to the suicidal death of the said Poomari consequent upon the frustration in her life and also about her relatives including A.1 herein in having disposed of her dead body without informing the police and that case ultimately ended in conviction as against A.1 and others. This fact also fortifies the prosecution case relating to the motive part of the crime.

10. Accordingly, under this point, we hold that the prosecution proved the motive part of the crime beyond all reasonable doubts. Point Nos:(ii) to (iv)

11. These points are inter-linked and interwoven with one another and hence taken up for discussion together.

12. Curiously enough, P.W.1 Kumar, the defacto complainant who lodged the F.I.R as per Ex.P.19 turned turtle. His signature alone was marked as Ex.P.1 in Ex.P.19. In Ex.P.20 also, the printed F.I.R, he signed at the relevant column. It is a trait proposition of law that the witnesses might lie, but the circumstances would not lie. P.W.1 has deliberately became hostile for the reason adverted to infra. Admittedly, P.W.1 is the close friend of the deceased Mani and known to the family of Lakshmi P.W.4, the mother of the deceased. The occurrence took place in day time and indubitably as per P.W.1's own version, he witnessed the attack also. But, A.1 was not a stranger to the family of Lakshmi and the deceased Mani. P.W.1 furnished the name of the accused in the F.I.R. Despite all these salient features of this case, P.W.1 would artificially state as though he witnessed the crime, but he did not know who inflicted the injuries despite the occurrence took place in broad day light.

13. During chief examination, after specifying the names of the accused, he would also paradoxically add that he told the police as though some four persons had levelled the attack and that was only written by the Sub Inspector of Police. However, during the one line cross-examination by the defence, it was elicited out from him as though the names of the accused were informed to P.W.1 by the deceased Mani's mother P.W.4 Lakshmi. It is at once glaringly and palpably clear that during chief examination, he simply stated as though he informed the police that some four persons were the assailants and that too in a prevaricative manner, whereas during cross-examination, he would state that he specifically informed the names of the accused to the police, because P.W.4 informed him to say so. On balance, there cannot be any cloud of doubt that P.W.1 deliberately turned hostile after clearly giving a go bye to his versions in the complaint as contained in Ex.P.19. Throughout in his deposition, P.W.1 has not uttered out anything to show that he was compelled to say as contained in Ex.P.19 against his wish and will. At this juncture, the decision of the Honourable Apex Court in State of Gujarat v. Anirudhsing and another reported in (1997) 6 Supreme Court Cases 514, could rightly be recollected for the proposition that merely because some of the witnesses have turned hostile, their ocular evidence recorded by the Court cannot be held to have been washed off or unavailable to the prosecution. It is the duty of the Court to carefully analyse the evidence and reach at a conclusion.

14. It is also a trait proposition of law that when P.W.1, the defacto complainant himself turned partly hostile, the police officer's evidence regarding the recording of the oral version given to him by such deliberately turned hostile witness i.e., adverse witness could be taken into consideration and there is no embargo under the law.

15. The learned Counsel for the appellants would argue that during cross- examination of P.W.1, there was no suggestion put to P.W.1 denying his versions during chief examination that he could not identify the assailants. Such an argument is neither here nor there for the reason that during cross-examination, the learned Public Prosecutor had put to P.W.1 what are all the participations of each accused as per P.W.1's version before the Investigating Officer and in Ex.P.19.

16. One other argument put forth by the learned Counsel for the appellants is that P.W.1 would say that he did not inform the names of the assailants to P.W.4, Lakshmi, whereas P.W.4 Lakshmi would state that P.W.1 informed the names of the assailants. To make the matters worse and to expose himself that he deliberately resailed from his former statement in his non-hostile portion of chief examination, he would state that after the occurrence, it was he who ran to the house of P.W.4 and informed her about the incident. No more elaboration is required to highlight that P.W.1 has deliberately turned hostile and became adverse to the prosecution case and in such a case, the evidence of P.W.16 Balasubramanian, the Sub Inspector of Police, is quite admissible to prove the complaint. The decision in Tahir vs. State (Delhi) reported in 1996 Supreme Court Cases (Cri) 515, would posit the proposition that the conviction can be recorded on the testimony of the police officials if found reliable.

17. P.W.2 and P.W.3 are also the two eyewitnesses relied on by the prosecution to prove the occurrence. P.W.2 Sankaravelu would narrate in detail about the occurrence. However, he would state that he knew A.1 anterior to the occurrence itself and that he did not know A.2 and A.3 earlier. No identification parade was conducted. Even before the Court, P.W.2 wrongly identified A.2 for A.3 and vice versa and as such, there is considerable force in the argument of the learned Counsel for the appellants that even if the plea of the defence as a whole for acquittal of all may not be found favour with this Court, yet A.2 and A.3 might be exonerated.

18. Before taking a firm view on that plea, it is better to refer to the evidence of P.W.3 Murugan also in this aspect, who would corroborate the evidence of P.W.2 as well as the narrative portion of the occurrence in Ex.P.19. However, P.W.3 happened to be the one who was in the habit of helping the police as a witness, even though he could not at once be dubbed as a stock witness. Relating to A.2 and A.3, we are of the opinion that it would be quite unsafe to rely upon his testimony, when P.W.2's testimony relating to A.2 and A.3 was shabby. Furthermore, there are no confessions by A.2 and A.3 which led to the discovery of material objects as per Section 27 of the Indian Evidence Act. Hence, in such a case, the argument of the learned Counsel for the appellants has to be accepted for giving benefit of doubt in favour of A.2 and A.3. The maxim "falsus in uno falsus in omnibus" cannot be applied in Indian situation, as posited by the Honourable Apex Court in catena of precedents.

19. The Investigating Officer, P.W.17 in his deposition would convincingly depose without leaving scope for any doubt that it was he who recorded the admissible portion of A.1's confession Ex.P.4, and also the consequent recovery of the billhooks M.O.9, M.O.10 and M.O.11. The Honourable Apex Court in H.P.Administration v. Om Prakash reported in AIR 1972 SC 975 elucidated that the recovery mahazar witnesses turning hostile cannot be taken as insuperable or insurmountable obstacle for the prosecution to prove the confession and recovery through the Investigating Officer, when the evidence of the Investigating Officer is otherwise free from embellishment. The dictum in G.L.Gupta v. Asst. Collector, Customs reported in AIR 1971 SUPREME COURT 28 would exemplify that the evidence of the Investigating Officer without corroboration relating to even in the case of search is admissible.

20. The circumstances highlighted above would show as to how P.W.1 was clearly won over by the defence side and for that matter, some other witnesses also turned hostile. In fact, catena of decisions of the Honourable Apex Court depicted the proposition that in such a case, the evidence of the Investigating Officer could be relied on relating to such admissible portion of confession and recoveries and such other steps taken by him in the course of investigation and no more elaboration is required in this regard.

21. The medical evidence as put forth through the Doctor P.W.11 Soundara Pandian, would support the prosecution case. As per Ex.P.9, P.W.10, the Doctor Krishnaveni exemplified the injuries and those injuries alone ultimately as revealed by the evidence of P.W.11 the Doctor Soundara Pandian who conducted the post-mortem and issued Ex.P.12 post-mortem certificate, led to the death of the deceased Mani. P.W.11 set out the injuries found on the dead body of the deceased Mani as per Ex.P.12 as under:

"Internal appearance: All internal organs are pale. Heart, Stomach, Bladder empty. Hyoid intact.

fhaq;fs; ' 1) ,lJ if kzpf;fl;Lf;F 8 cm nkny clypypUe;J if Jz;of;fg;gl;Ls;sJ. Jz;of;fg;gl;l if g[wq;if gFjpapy; 5 cm X 5 cm X vYk;g[ bjhpa[k; MHj;jpy; btl;Lf;fhak;.

2) ,lJ g[j;Jf;F 8 cm fPnH if btspg;g[wk; 5 cm X 3 cm X 3 cm mstpy; btl;Lf;fhak;.

3) fGj;jpd; Kd;gFjpapy; fPH;j;jhilia xl;o FWf;fhf 15 cm X 6 cm X Fuy;tis bjhpa[k; MHj;jpy; btl;Lf;fhak;. uj;jehsq;fSk; btl;lg;gl;Ls;sd. 4) fPH;jhilapd; kj;jpapy; Fwf;fhf 5 cm X 3 cm X vYk;g[ btl;lg;gl;l MHj;jpy; btl;Lf;fhak;.

5) bew;wpapy; FWf;fhf 15 cm X 2 cm X vYk;g[ btl;lg;gl;l MHj;jpy; btl;Lf;fhak;.

6) fhak; vz; 5 f;F 5 cm nkny jiyapd; kj;jpapy; Muk;gpj;J btspg;g[wkhf 12 cm X 2 cm X vYk;g[ btl;lg;gl;l MHj;jpy; btl;Lf;fhak;. 7) fhak; vz; 6f;F gpd;g[wk; 10 cm X 2 cm X vYk;g[ btl;lg;gl;l MHj;jpy; btl;Lf;fhak; (FWf;fhf) .

8) ,lJ g[j;jpd; nky; gFjpapy; fGj;ij xl;o 5 cm X 3 cm X 3 cm mstpy; btl;Lf;fhak;.

9) fGj;J gpd;g[wk; nky; ,lJ gf;fk; 5 cm X 3 cm X 3 cm mstpy; btl;Lf;fhak;.

10) fhak; vz; 9f;F 4 cm fPnH 6 cm X 3 cm X vYk;g[ bjhpa[k; MHj;jpy; btl;Lf;fhak;.

11) ,lJ tpyht[f;F 6 cm nkny KJfpd; fPH; gFjpapy; 10 cm X 3 cm X vYk;g[ bjhpa[k; MHj;jpy; btl;Lf;fhak;.

12) KJFj; jz;od; fPH;g[wj;jpy; 8 cm X 3 cm X vYk;g[ bjhpa[k; MHj;jpy; btl;Lf;fhak;.

13) tyJ Kl;of;iff;F 6 cm fPnH cl;g[wk; 5 cm X 3 cm X 3 cm mstpy; btl;Lf;fhak;.

14) tyJ g[l;lj;jpy; 5 cm X 1 cm X 1 cm mstpy; btl;Lf;fhak;. 15) ,lJ Kl;of;fhYf;F gpd;g[wk; 5 cm fPnH 6 cm X . cm X . cm mstpy; btl;Lf;fhak;.

16) fhak; vz; 2f;F 2 cm X 1 cm X . cm cs;ns mstpy; btl;Lf;fhak;."

22. The opinion of the Doctor that had the deceased been brought to the Hospital earlier, there would have been chances of saving him, is hypothetical and here, the evidence on record does not demonstrate that there was undue or avoidable delay in taking the injured deceased to the Government Hospital. Medical evidence shows that the injuries were fatal injuries and it is elucidated from the above delineations.

23. It is therefore clear that the medical evidence is in support of the prosecution case.

24. The learned Counsel for the appellant would argue that Ex.P.9 prepared by P.W.10 the Doctor would refer the history furnished by P.W.5 that on 25.03.2003 at about 08.30 a.m., near Sankarankoil new bus stand, the injured was found lying with cut injuries. P.W.5 admittedly is not an eyewitness to the occurrence, even though he is the relative of the deceased and in such a case, he was right in furnishing such a history to the Doctor. One more argument also has been advanced on the defence side that the mother P.W.4 might have informed P.W.5, if true, the names of the assailants. Such an argument is oblivious of the fact that P.W.4 herself was not an eyewitness and the defence cannot indulge in assumptions and presumptions and thereby tried to construct castle in the air.

25. Ex.P.17 would reveal the following facts: "Item 1. A billhook with horn handle and rusty metal guard continuous with the blade, measuring about 43 cm., in length on which were dark brown stains. Item 2. A billhook with horn handle and measuring about 47 cm, in length on which were dark brown stains.

Item 3. A billhook with horn handle and measuring about 49 cm, in length on which were dark brown stains.

Item 4. Earth mixed with stones and vegetable matter on which were dark brown stains.

Item 5. Earth mixed with stones and vegetable matter. Item 6. A torn white lungi with blue and grey cross stripes on which were dark brown stains.

Item 7. A ragged white silken full sleeved shirt on which were profuse dark brown stains.

Item 8. A ragged blue sleeveless banian on which were profuse dark brown stains.

Item 9. Pieces of black silken cord knotted together on which were dark brown stains.

Report:

Detected blood on each of items 1 to 4 (both inclusive) and 6 to 9 (both inclusive) but not on item 5."

26. Ex.P.18, the Serologist Report could be extracted hereunder for ready reference:

Item No.

Description of articles

Origin

Group

Remarks

1

Billhook

Human

B

....

2

Billhook

Human

B

,....

3

Billhook

Human

....

Result of grouping test inconclusive

4

Earth etc

Human

B

...

6

Lungi

Human

B

....

7

Shirt

Human

B

....

8

Banian

Human

B

,,..

9

Cord pieces

Human

...

Result of grouping test inconclusive

27. On M.O.9, M.O.10 and M.O.11, billhooks, the human blood stains were found and out of which two billhooks bore stains of 'B' group blood and the clothes of the deceased also contained 'B' group blood stains and it is quite obvious that this piece of evidence also is in support of the prosecution.

28. The learned Counsel for the appellants would put forth the argument to the effect that P.W.1 in his chief examination stated that some four persons levelled the attack, but only three persons were arrayed as accused. In Ex.P.19, the names of four persons are not found and nowhere in the police records, it is found detailed so. But, P.W.1 deliberately in a tactful manner interpolated such a theory during his chief-examination and based on which the argument advanced, should end in a fiasco and as such it failed to carry conviction with this Court.

29. P.W.6, Mariappan, whose evidence to the effect that it was he who took the injured in the vehicle to the Government Hospital, Sankarankoil, P.W.7 Muppidathi, whose evidence for preparation of mahazar Ex.P.2 and recovery of M.O.4 to M.O.6 as per Ex.P.5, are in support of the prosecution case, over which there is no doubt.

30. P.W.8 the Village Administrative Officer and P.W.9 the village assistant, who were expected to be the responsible officers turned hostile. Had really the police cooked up the evidence, it is not known as to why such Government Servants should sign the mahazars concerned and thereafter during trial, become hostile. Absolutely there is no explanation as to what made them to allegedly collude with the police for fabricating such evidence. It is therefore clear that the conduct of P.W.8 and P.W.9 are totally unworthy of their posts which they occupied. If really, the police compels the Village Administrative Officer and the village assistant to be a party in fabricating evidence, they should refuse and report to the higher officials immediately and they should not become hostile like any other witness at the time of trial after committing themselves voluntarily and volitionally in black and white at the time of investigation.

31. P.W.12, the Head Constable's evidence would show that on 25.03.2003 at 11.30 a.m., he reached the Magistrate Court concerned for handing over the Express F.I.R. But, the endorsement in the printed format Ex.P.20, would reveal that the Magistrate received it at 01.50 p.m., on 25.03.2003. The police on the one side and the Court officials on the other side, generally do have their own explanations which we need not detail here and such explanations on either side are very many and varied, all because of uncertainty looming large on that issue for want of clear instructions. Hence, in such a case, we deem it fit to give certain instructions to the Police as well as the Court officials including the Magistrate concerned as under:

When Express F.I.R is brought to the Court by the police official concerned, the Clerk in-charge of F.I.Rs or the Head Clerk, should without any delay leaving all other works if any, on priority basis put the Court seal and also his initial on it, in addition to specifying thereon the time and date and immediately, thereafter, it should be taken to the Magistrate concerned, even if he happened to be on the Dais in the open Court dealing with cases and get his initial with time and date. It shall be adhered to scrupulously in the interest of justice and we need not stress more as its relevancy is quite obvious.

32. In this case, the police official would say that at 11.30 a.m., presumably during Court sitting hours, he reached the Court with the Express F.I.R, and the Magistrate after sitting hours put his signature and also the timing. However, so far this case is concerned, we see no delay as tried to be highlighted by the defence side. The occurrence took place at 07.45 a.m., and the police registered the case at 08.30 hours initially under Section 307 I.P.C as at that time, the injured was alive and after his death, the penal section was altered into one under Section 302 I.P.C, as revealed by Ex.P.22 the alteration report which was also sent to the Court and the alteration report is stated to have been received by the Magistrate as per his endorsement at 02.00 p.m., on 25.03.2003. In short, the printed F.I.R with complaint, under Section 307 I.P.C was received by him on 25.03.2003 at 01.50 p.m, and the alteration report was received at 02.00 p.m, so to say with ten minutes difference. There is no such evidence to the effect that two police officials handed over two reports to the Court. Virtually, it amounts to Exs.P.19, P.20 and P.22 having been handed over to the Magistrate together. But, the Magistrate has chosen to put two different timings.

33. The Investigating Officer would state that even by 11.30 a.m., he despatched those papers including Ex.P.22 the alteration report. As such both the police as well as the Court officials including the Magistrate relating to Express F.I.R matters should conduct themselves properly without giving any room for unnecessary contentious issues cropping up during trial. These facts virtually are warranting us to lay down the directions/guidelines as above.

34. P.W.13 one other Head Constable Tamil Selvan, spoke about the dead body having been sent for post-mortem and also relating to the recovery of M.O.2, M.O.3, M.O.7 and M.O.8 from the dead body and it is a formal piece of evidence.

35. P.W.14 would speak about the fact of the material objects having been sent through the Court for obtaining the opinion of the experts on those material objects, over which there is no controversy.

36. Inasmuch as the evidence on record and our discussion supra, would clearly fasten A.1 with the offence of murder punishable under Section 302 I.P.C and the benefit of doubt is given in favour of A.2 and A.3.

37. In the result, the appeal is partly allowed confirming the conviction recorded and the sentence passed by the trial Court as against A.1 and reversing the convictions recorded and the sentences passed as against A.2 and A.3 and thereby acquitting A.2 and A.3 of the charges framed against them. A.2 and A.3 are ordered to be released forthwith if in custody unless their detention is required in any other case. The trial Court is ordered to issue non-bailable warrant for the first accused, if not in custody and on securing him, let him be sent to jail to undergo the sentence.

rsb

To

1.The Inspector of Police,

Sankarankoil Town Police Station,

Tirunelveli District.

2. The Additional Public Prosecutor,

Madurai Bench of Madras High Court,

Madurai.




Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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