Killer Thiayagu @ Thiyagu, Samiyar @ Ramu and Mosses Muthumari vs State

M. Chockalingam, J.—This appeal challenges the judgment dated 7.10.2010 passed by the learned Additional Sessions Judge, Fast Track

Court No. II, Poonamallee, Thiruvallur District in S.C. No. 76 of 2010, whereby accused 1 to 4 stood charged, tried for the offences under

Sections 341 and 302 read with 34 of the Indian Penal Code and found guilty for the offence u/s 302 read with 34 of the Indian Penal Code and

awarded life imprisonment and to pay a fine of Rs. 1,000/-in default to undergo Rigorous Imprisonment for one year.

The short facts necessary for the disposal of the case can be stated thus:

(i) P.W.1 is the younger brother of the deceased. He was doing Real Estate Broker business at Ambattur within the jurisdiction of the

Respondent-police. The deceased was also running a Bar. He used to collect money for the festival of Perumal temple. The accused/Appellants

are unauthorisedly collecting money and appropriated the same and the deceased questioned the same. Apart from this, the accused were

collecting money from all and also asked the deceased to give mamool and often giving him trouble. The deceased, though cautioned them, shifted

his shop since he could not tolerate the trouble given by them. When one Pandian took a TASMAC shop and running the same, the first accused

has suspected that the deceased helped the said Pandian in getting the TASMAC shop on auction and thus, the first accused was in inimical terms

with the deceased.

(ii) On 4.3.2010 at about 8.30 p.m., on the request of the deceased, both the deceased and P.W.1 went in a Two wheeler bearing registration

No. TN20-BZ-6826 to see one Joseph Samuel. After seeing him, they returned. When them came near Kalaivanar Main Road, the first accused,

who was standing on the side of the road, called the deceased and immediately, the deceased asked his brother to stop the vehicle and got down

and went nearby. Immediately, the first accused, who not only instigated others to attack the deceased, but also attacked the deceased. The first

accused cut the deceased first with patta knife on his left leg, while second accused on his head and accused 3 and 4 attacked him on his face and

neck respectively. P.W.1 went nearby his brother, raising the cry. When one of the accused Moses Raj was about to attack him, P.W.1 ran away

from the place of occurrence and on hearing the distressing cry, the crowd gathered. The Appellants fled away from the place of occurrence. All

family members were present and came to the place of occurrence.

(iii) P.W.1 proceeded to the Respondent-police and gave Ex.P1 report. P.W.15 Inspector of Police, on the strength of Ex.P1 report, registered a

case in Crime No. 93 of 2010 for the offences under Sections 341, 302 of the Indian Penal Code. Express First Information Report Ex.P17 was

despatched to the Court. P.W.15 took up investigation, went to the place of occurrence, made an inspection and prepared Ex.P2 Observation

mahazar and Rough sketch Ex.P18. Photos were taken at the place of occurrence. P.W.15 also recovered M.O.8 blood stained mud, M.O.9

ordinary mud, M.O.6 four blood stained covers and M.O.7 one pen from the place of occurrence under the cover of mahazar.

(iv) Thereafter, P.W.15 conducted inquest on the dead body in the presence of panchayatars and inquest report is marked as Ex.P19. Thereafter,

the dead body was subjected to autopsy. P.W.14 Doctor conducted autopsy and issued post-mortem Certificate Ex.P15 wherein he has opined

that the deceased would appear to have died of shock and hemorrhage and due to cut throat injury and multiple injuries.

(v) Pending investigation, all the accused surrendered before the Metropolitan Magistrate Court, George Town, Chennai. P.W.15 made a

requisition for police custody and the same was ordered on 9.3.2010. The accused were taken to police custody. Thereafter, they came forward

to give their confession statements voluntarily and the same were recorded in the presence of witnesses. The admissible portion of the same are

marked as Ex. Ps.6 to 9. Following the same, they produced M. Os.1 to 4 patta knives, four in numbers and the same were recovered under the

cover of mahazar Ex.P10. Thereafter, the accused were sent for judicial remand and the case was converted from 341 and 302 of the Indian

Penal Code to one under Sections 341 and 302 read with 34 of the Indian Penal Code. All the material objects were sent for chemical analysis.

Chemical analysis report Ex.P21, Serology report Ex.P22 and Toxicology report Ex.P23 were received. All the witnesses were examined and

their statements have been recorded. On completion of investigation, final report is filed. The case was committed to the Court of Sessions.

Necessary charges were framed against the accused.

In order to substantiate its case, the prosecution examined 15 witnesses and relied on 23 documents and also relied on M. Os.1 to 11. On

completion of examination of witnesses on the side of the prosecution, when the accused were questioned u/s 313 of the Criminal Procedure

Code, they denied them as false. No witness was examined on the side of the accused.

The Trial Court, after hearing the arguments advanced by either side and scrutinising the materials available on record, found the accused guilty

u/s 302 read with 34 of the Indian Penal Code and awarded punishment as referred to above. Hence this appeal is filed at the instance of the

Appellants.

Advancing arguments on behalf of the Appellants, learned Senior counsel would submit that in the instant case, the prosecution has miserably

failed to prove its case. According to the prosecution, the occurrence has taken place at 8.30 p.m. and P.W.1 has given Ex.P1 report at 9.30 p.m.

to P.W.15 Inspector of Police and the case was registered under Sections 341 and 302 of the Indian Penal Code and the First Information Report

has reached the Judicial Magistrate Court, Ambattur on 5.3.2010 at 1.00 a.m. It is an admitted position that the distance between the police

station and the Magistrate''s Court is only two k.ms. But, there was a delay in sending the First Information Report.

Learned Senior counsel added further that a reading of the First Information Report would clearly indicate that there is only one named person,

who is the first accused and four or five persons, whose names are not mentioned, but P.W.1 would claim in his evidence at the time of trial that he

knew all the persons. If to be so, there is no impediment for him to mention the said names. Learned Counsel added further that at the time of

inquest also, the names of the accused were not actually found, only mentioned four or five persons. According to P.W.15, it was clear that only

after the accused surrendered before the Court and arrest was made, their involvement came to the knowledge of the Investigating Officer and the

case was altered to one under Sections 302 read with 34 of the Indian Penal Code. Thus, it is quite clear that it was the subsequent development

of the prosecution case in order to rope all other three accused.

Learned Senior counsel would urge that if really P.W.1 knew all the four accused, he would have mentioned the names of accused 2 to 4 also.

Hence, non mentioning of the names of accused 2 to 4 and also the documentary evidence would indicate the fact that P.W.1 was not present at

the time of occurrence. If really more persons were there, an identification parade has to be conducted, but not done either way. Insofar as

accused 2 to 4 are concerned, they are entitled for acquittal.

Learned Senior counsel would further add that insofar as the charge levelled against the first accused is concerned, it thoroughly rests on the

solitary eye witness of P.W.1. Learned Senior counsel also cautioned the Court that in a given case like this, once it is a sole testimony, the Court,

before acceptance, has to scrutinise the said evidence with full care and caution. P.W.1 is the younger brother of the deceased. He claimed that he

accompanied the deceased and they went to the house of one Joseph Samuel in a motor bike. When they were coming near Kalaivanar Main

Road, they were intercepted by the first accused. When the deceased went nearby, it was the first accused, who, not only instigated others but

also gave the first cut and all the other three persons joined him.

If the evidence of P.W.1 is viewed from the evidence of P.W.4, it is quite clear that P.W.1 could not have been the eye witness. According to

P.W.4, when he was standing nearby his father, his father asked him to go home, but he did not go to the home and he was telephoning somebody

and when he was proceeding nearby, he found the dead body of his father along with bike. Learned Senior counsel, pointing to the evidence of

P.W.4 in chief and cross-examination, would urge that P.W.4 has never stated the presence of P.W.1.

Learned Senior counsel added further that P.W.4 has categorically stated that after he went to his house, he found P.W.1. Thereafter, P.w.4

came to know about the occurrence. Hence, it is doubtful as to whether P.W.1 could have been present at the time of occurrence. Hence, the

evidence of P.W.1 has got to be rejected. According to the learned Senior counsel, barring the evidence of P.W.1, insofar as recovery is

concerned, the recovery of weapon of crime i.e. patta knives following the confession statements were subsequently inserted to strengthen the

prosecution case. If the Court cannot accept the evidence of P.W.1, mere recovery of weapon of crime, even assuming to be true, cannot form

basis to sustain the conviction. Hence, the prosecution has miserably failed to prove its case and the judgment of the Trial Court has got to be set

aside and the accused are entitled for acquittal in the hands of the Court.

This Court heard the learned Additional Public Prosecutor on the above contentions.

This Court paid its anxious considerations on the above contentions. It is not in controversy that one Johnson, brother of P.W.1 and father of

P.W.4 was done to death in an incident that had taken place on 4.3.2010 at about 8.30 p.m. Following the registration of the case by P.W.15

Inspector of Police on the strength of Ex.P1 report and following the procedural formalities, inquest was conducted and thereafter, dead body was

subjected to autopsy and P.W.14 Doctor, who has conducted autopsy, has given evidence as a witness before the Court and through post-

mortem Certificate that the deceased died out of shock and hemorrhage and due to cut throat injury and multiple injuries. Hence, the cause of

death is due to homicidal violence, as put forth by the prosecution, was never the subject matter of controversy before the Trial Court. Hence, no

impediment is felt by the Trial Court in recording so and rightly too.

In order to substantiate the charge levelled against the Appellants, the prosecution rests its entire case on the direct evidence adduced before

the Trial Court by marching only one witness viz. P.W.1. At the outset, the Court has to declare that the prosecution has miserably failed to prove

its case insofar as accused 2 to 4 are concerned. P.W.1 has deposed that he knew all the accused persons and it was he, who gave Ex.P1 report

within a short span of time. A perusal of Ex.P1 report would reveal that the name of first accused alone is mentioned and the names of other

accused were not found. If really he knew the other accused, there was no impediment for him to mention the names of those persons.

It is pertinent to point out that P.W.15 Inspector of Police has candidly admitted that after surrender of the accused before the Metropolitan

Magistrate''s Court, George Town, the case, which was originally registered under Secions 341 and 302 of the Indian Penal Code, was altered to

one under Sections 341 and 302 read with 34 of the Indian Penal Code that too after number of days. This would clearly indicate the fact that

merely because of the surrender of the accused, the case was altered to one under Sections 341 and 302 read with 34 of the Indian Penal code.

Yet another circumstance to disbelieve the case of the prosecution in respect of accused 2 to 4 is that none of the names of accused 2 to 4

was mentioned in the inquest report. Hence, the Court is of the considered opinion that the prosecution has failed to prove its case insofar as the

charge levelled against accused 2 to 4 and that part of the judgment has got to be set aside.

Insofar as the charge levelled against the first accused is concerned, the Court is of the considered opinion that the prosecution has brought

home the guilt of the first accused. Admittedly, P.W.1 and his brother were doing real estate broker business. P.W.1 has categorically stated that

when his brother was conducting the Bar, the first accused and his associates were making attempt to collect mamool, to which he was not

amenable. In view of the trouble created by the first accused and others, he shifted his shop. When TASMAC shop was taken by his friend, the

first accused and his associates were in inimical terms with the deceased.

On the date of occurrence i.e. on 4.3.2010 the deceased went to see his friend along with P.W.1 and thereafter, on his coming back near

Kalaivanar Main Road, the motor bike was stopped by the first accused, who called the elder brother of P.W.1 and his elder brother asked him to

stop the vehicle and he got down. At that time, the first accused, who, not only instigated others to attack the deceased, but also attacked him with

patta knife on his left leg, following the same, the other persons attacked the deceased.

At this juncture, it is pertinent to point out that the evidence of P.W.1, despite cross-examination in full in respect of this part of evidence that it

was the first accused, who was standing nearby, cut the deceased, remained unshaken. The contention of the learned Senior counsel for the

Appellants that the evidence of P.W.1 has got to be disbelieved in view of the evidence of P.W.4 cannot be countenanced.

According to P.W.4, he was actually standing nearby his father. His father asked him to go to home, but he did not go. After some time, when

he reached the father, he found the dead body of his father. Learned Senior counsel, pointing to the evidence of P.W.4, submitted that nowhere,

P.W.4 has stated that he saw P.W.1 at the spot either at the time of occurrence or immediately after the occurrence and hence, P.W.1 could not

have been present at all. This contention cannot be countenanced. From the evidence of P.W.1, it is clear that at the place of occurrence, when his

brother was attacked by the first accused and others, he raised a distressing cry and at that time, one of the accused chased him and hence he ran

away from the place of occurrence immediately. However, when the occurrence was going on, he found that his brother was attacked by the first

accused and others. As per the evidence of P.W.4, when he came to the place of occurrence after some time, he found only the dead body of his

father.

Hence, the evidence of P.W.4 would in no way affect the evidence of P.W.1, which was in clinching terms. P.W.1 has clearly narratted the

incident in his evidence and made mention of the name of the first accused only in the First Information Report. Insofar as other persons, who were

present at the time of occurrence, are concerned, they were actually not known to P.W.1. Since their names were not mentioned, it is highly

doubtful as to whether accused 2 to 4 were the persons involved in the commission of crime or not.

Insofar as first accused is concerned, the Court is of the considered opinion that the evidence of P.W.1 has got to be accepted since it is a

trustworthy. The criminal jurisprudence does not require quantity of evidence, but only quality of evidence. The evidence of single witness can be

accepted by the Court to sustain the conviction, provided it inspires the confidence of the Court. Equally, though number of eye witnesses were

examined by the prosecution, if they do not inspite confidence of the Court, the Court may reject the case of the prosecution. In the instant case, it

is true, there is only one eye witness viz. P.W.1. But, his evidence is trustworthy and inspires confidence of the Court, Apart from this, the other

piece of evidence is the medical evidence and the recovery, which stood fully corroborated with ocular testimony. Hence, the first accused is found

guilty u/s 302 read with 34 of the Indian Penal Code and judgment of the Trial Court has got to be sustained and in respect of accused 2 to 4, the

judgment of the Trial Court has got to be set aside.

Accordingly, the above criminal appeal is allowed in respect of accused 2 to 4 are concerned, setting aside the judgment dated 7.10.2010

passed by the learned Additional Sessions Judge, Fast Track Court No. II, Poonamallee, Thiruvallur District in S.C. No. 76 of 2010 and the

criminal appeal is dismissed in respect of first accused is concerned. Accused 2 to 4 viz. Samiyar @ Ramu, Mosses and Muthumari are acquitted

of all the charges levelled against them and they are directed to be set at liberty forthwith unless their presence is required in connection with any

other case. Fine amount, if any, paid by them, shall be refunded to them.