Pichaipillai and Soundararajan vs The State by The Inspector of Police

V. Periya Karuppiah, J.—This appeal is directed by the appellants/accused 1 & 2 against the judgment of conviction and sentence passed

by the lower Court viz., Sessions Judge, Perambalur in S.C. No. 79 of 2004 dated 27.4.2005.

The charge against the accused is that due to previous enmity with one Manivel and his family, on 24.7.2002 at about 6.30 a.m. at

Keelavarappankuruchi, accused 1 & 2 wrongfully restrained the said Manivel and his two sons Senthilvel and Elephant Raj; that in furtherance of

the common intention to commit murder of Manivel and his two sons, on the same day at the same place and time, A1 brought Sulukki from his

house and stabbed on the abdomen of the deceased, knowingly that it would likely to cause death and caused grievous hurt as a result of which his

intestine protruded out and in spite of the best treatment given to the said Manivel, he succumbed to the injuries on 28.7.2002 at 4.00 p.m. and

that when the act of the accused was questioned by Senthilvel and Elephant Raj, A2 cut Senthilvel on his back of the head with an Aruval and then

cut on the left knee and left leg of Elephant Raj, with the common intention to commit murder, thereby Al had committed the offence punishable

under Sections 341, 387 r/w 34 (2 counts) and 382 I.P.C. and A2 had committed the offence punishable under Sections 341, 307 (two counts)

and 382 r/w 34 I.P.C.

To prove the above charges against the accused, the prosecution has examined P.Ws.l to 15 and marked exhibits P.1 to P.18 and material

objects 1 to 7.

The case of the prosecution is as follows:

(a) P.Ws. 1 to 3 are the sons of Manivel, the deceased in this case. The accused are the father and son. The deceased and the 1st accused were

the village heads. There was prior enmity between the 1st accused and the deceased with regard to management and administration of funds of the

village.

(b) Apart from the above, P.W. 2 has borrowed 3 sovereigns of jewels from one Sait @ Govindasamy and pledged the same. When the said Sait

demanded the jewels, P.W.2 could not return the same. Therefore, he lodged a complaint against P.W. 2. When the police enquired P.W. 2, he

agreed to return the jewels. But the 1st accused interfered and obtained a pronote for Rs. 12,000/- in his favour. Therefore, the deceased and

P.Ws.l to 3 went to the house of the 1st accused on 23.7.2002 to question him. But he was not available. Therefore, they informed to his wife that

they came to take back the pronote and returned.

(c) On the next day, i.e. on 24.7.2002, at about 6.30 a.m. the 1st and 2nd accused restrained the deceased at Keelvarappankurichi Main Road

and indulged in a quarrel. In the meantime, A1 went to the house of one Lakshmi and brought M.O. 1 Sulukki and stabbed on the abdomen of the

deceased as a result of which his intestine protruded out and he had fallen down on the tar road. On hearing the shouting of the deceased, P.Ws. 1

to 3 who were residing opposite to the house of the deceased i.e. on the southern side of the Main Road, came to the spot and questioned the act

of the accused. At that time, the 2nd accused attacked P.W. 1 with Aruval-M.O. 2 on the back of his head and also attacked P.W. 2 on his left

knee and left leg. P.Ws. 4 to 6, 8 & 9 also came to the spot. Thereafter, the 1st & 2nd accused left the place with the weapons. Immediately,

P.Ws.3 & 9 took Manivel and P.W. 2 to Thanjavur Medical College and Hospital for treatment in a car. Manivel was admitted unconscious.

P.W. 2 was treated by P.W. 14, Dr. Balasundaram and he issued Ex.P.10 - Accident Register for the injuries sustained by P.W. 2 and Ex.P.11

Medico Legal Opinion Form. P.W. 1 went to Thuthur Police Station and gave complaint-Ex.P1 at 8.00 am and then he went to Ariyalur

Government Hospital for treatment, where he was treated by P.W. 13, who issued Ex.P.9 -Accident Register for the injuries sustained by P.W. 1.

(d) P.W. 11 registered a case in Cr. No. 209 of 2002 for the offences punishable under Sections 341, 324 and 307 I.P.C. and sent the F.I.R

along with the complaint to the Judicial Magistrate, Jayankondam and he also forwarded the copies of the complaint and the F.I.R to higher

officials, and to the Inspector of Police, P.W. 15.

(e) P.W. 15 on receipt of the complaint and F.I.R. copies took up the investigation of the case and went to the scene of occurrence at 12.30 p.m.

He prepared Exs.P.2-Observation Mahazar and Ex. P.12-Rough Sketch in the presence of P.W. 7 and one Palaniappan. He recovered blood

stained portion of tar road ""M.0.4 and sample portion of tar road"" M.O.5 under Mahazar Ex.P.3. Thereafter, P.W. 15 went to Thanjavur Medical

College and Hospital where the said Manivel was admitted and since he was found unconscious, P.W. 15 enquired P.W. 3 and recovered the

blood stained dothi of Manivel (M.O. 6) under the mahazar Ex.P.4 in the presence of P.W. 7 and Palaniappan. Then he went to Ariyalur

Government Hospital and examined P.W.I, who was taking treatment there and recovered his blood stained dothi-M.O.3. On the same day, he

examined P.Ws. 1 to 7 & 9 and recorded their statements. On 25.7.2002, he examined P.W.8 and other witnesses and recorded their statements.

On 28.7.2002, he received an intimation that Manivel died in the hospital at 4.00 p.m. Therefore, he altered the offence under Sections 341, 324,

307 and 302 I.P.C and sent the altered express report ""Ex.P.13 to court. On 29.7.2002, he went to the Mortuary of Thanjavur Government

Hospital and held inquest from 8.00 a.m. to 10.30 a.m. in the presence of panchayatdars and others. The inquest report is Ex.P.14. He gave

requisition to conduct autopsy on the body of the deceased Manivel.

(f) P.W. 12, Dr. S. Vijayalakshmi, Police Surgeon, attached to Thanjavur Medical College, on receipt of the requisition, conducted autopsy on

29.7.2002 at 12.20 p.m. and she found the following injuries on the body of the deceased Manivel:

A midline surgically made sutured wound with intact silk sutures noted over the front of abdomen found extending from the ziphisternum upto 4

cm below the umblicus made for laprotomy purpose.

A surgically made drainage wound with rubber drainage tube is situated over the middle of right side flank of abdomen made for treatment

purpose.

A surgically made IV cut down wound noted over the front and medial aspect of right ankle region made for treatment purpose.

Grossly affected sutured stab wound Entry wound noted over the middle of right side lateral abdominal wall situated just below the costal

margin measuring 4 cm x 1 cm x abdominal cavity deep with intact silk sutures.

Grossly infected obliquely placed sutured stab wound with few intact silk sutures ""Exit wound"" noted over the left side of epigastric region of

front of upper abdomen situated 2 cm lateral to the midline measuring 7 cm x 2 cm x abdominal cavity deep upper half of this wound was found to

be superficial. Fowl smelling greenish yellow coloured thick pus found coming out through this wound.

On exploration of the above said wounds No. 1,4 and 5 on dissection of abdomen abdominal cavity contained about 800 ml of purulent fowl

smelling greenish yellow coloured pus mixed turbid fluid. Surgically made reperative sutures noted over the middle of body of anterior wall of

stomach, right lateral end of lesser curvature and both surfaces of left lobe of liver. The coils of small intestine, greater omentum; mesentery and

stomach were found matted together with greenish yellow coloured flakes of thick pus found sticking on to them. Cut fracture of the lateral half of

lower border of 11th rib also noted. Another laceration over the inferior surface of right lobe of liver measuring 4 x 1 cm x � cm. Where Gel

foam packing was kept. The above said reperative sutures were made for treatment purpose for the closure of stab injuries over lessor curvature

of stomach, body of stomach and through and through stab injury of left lobe of liver.

All the above mentioned injuries were of antemortem in nature. Injuries No. 1, 2 and 3 were surgically made wounds for treatment purpose. The

direction of the stab wound would have been from right side forwards, upwards and medially and tot he left.

She further opined in the postmortem certificate that the deceased would appear to have died due to the effect and complications of stab injury

abdomen involving many of the vital organs peritonitis,

(g) P.W. 15 in continuation of the investigation, arrested the 1st accused on 2.8.2002 at 5.00 a.m. at Azhagiyamanavalam Mariamman Koil Bus

Stop in the presence of P.W. 10 and one Chandran and recorded the confession statement of the 1st accused and the admissible portion of his

confession regarding the concealment of the weapon is marked as Ex.P.5. He also arrested the 2nd accused, on the same day at the same place

and time in the presence of the same witnesses and recorded his confession statement. Pursuant to above said statements, P.W. 15 recovered

M.Os. 1, 2 & 7 under the cover of mahazar Ex.P.6, which were handed over by A1 from the pump set room. Thereafter, he sent both the

accused and the recovered case properties to the court. On 7.8.2002, he examined the doctors P.Ws. 12 to 14 who conducted postmortem and

treated P.Ws. 1 & 2. He gave requisition Ex.P.5 to the Judicial Magistrate for sending the case properties for chemical examination, which was

complied with under Ex.P.16 and the Biology Report and Serology Report are marked as Exs.P.17 & 18. After completing the investigation by

adopting all the formalities, he filed a charge sheet against the accused on 21.11.2002 for the offences under Sections 341, 302, 307, 324 r/w 34

I.P.C.

When the accused were questioned u/s 313 Cr.P.C. with regard to the incriminating materials available in evidence, both the accused denied the

same as false.

The learned Sessions Judge at the culmination of the trial came to the conclusion that the oral evidence adduced by eye witnesses and others

proved not only the enmity between the accused and the deceased family, but also the actual incident. Thus, believing the oral evidence of the

prosecution witnesses and the supporting materials, he found Al guilty under Sections 341 and 302 I.P.C. and sentenced him to pay a fine of Rs.

500/-, in default to suffer S.I. for one week and to undergo life imprisonment, in addition to pay a fine of Rs. 2000/- in default to suffer two months

simple imprisonment respectively and he found A2 guilty under Sections 341, 302 r/w 34 and 324 (2 counts) I.P.C and sentenced him to pay a

fine of Rs.500/-, in default to suffer S.I. for one week and to undergo Life Imprisonment, in addition to pay a fine of Rs. 2,000/- in default to

undergo S.I. for two months and one year R.I. (two counts) respectively, which conviction and sentence are challenged before us in this appeal.

Heard the learned counsel for the appellants Mr. Sirajudeen and the learned Additional Public Prosecutor, Mr. V.R. Balasubramanian.

The learned counsel for the appellant, Mr. Sirajuddin would submit in his argument,

(i) that the lower Court had miserably failed to appreciate the evidence of the witnesses in its proper perspective, inasmuch as the evidence of the

eye witnesses are contrary to each other with regard to the place of occurrence and the recovery of pieces of tar road and the blood stained

pieces of tar road would go to show that the occurrence had taken place only at the tar road and not in front of the house of A1 as spoken to by

some of the prosecution witnesses, who are not sure about the exact place where the occurrence had taken place and on that score itself, the

accused 1 & 2 are entitled for an acquittal;

(ii) that there is an unexplained and inordinate delay in forwarding the F.I.R. to the Magistrate Court, which would create reasonable doubt in the

version of the prosecution witnesses;

(iii) that the evidence adduced on the side of the prosecution are interested and some of the witnesses are closely related and therefore, the actual

happening in the occurrence was not spoken to by the witnesses; and the prosecution proceeded the investigation with the object of fixing the guilt

on the accused for which the lower Court had also affixed its seal of approval by ignoring the discrepancies end contradictions found even during

the investigation;

(iv) that the weapon said to have been used by A1 to stab the deceased Manivelu was described as ''Sulukki'', whereas the actual weapon

recovered was only a ''Vel'', that is having more differences in appearance as well as performance, which recovery of the weapon viz., ''Vel'' was

not spoken to by the prosecution witness and in view of the same, the reliance made upon the alleged recovery is not sustainable in law; and

(v) that the 1st accused was actually defending the aggressive attack made by the deceased and P.Ws. 1 and 2 and the 2nd accused was not at all

present at the scene of occurrence and therefore, the lower Court should have found that the accused 1 & 2 were not guilty of committing the

offence as charged against them.

In support of the above contention, the learned counsel has drawn the attention of this Court to the following judgments of our Hon''ble Supreme

Court as well as our High Court, which would be discussed in detail later.

Marudanal Augusti Vs. State of Kerala, ;

Meharaj Singh (L/Nk.) Vs. State of U.P., ;

Bijoy Singh and Another Vs. State of Bihar,

In Re: Karunakaran and Another,

In Re: Gabriel,

Thus, the learned counsel for the appellants stressing his arguments on the above points and placing much reliance on the above decisions, prayed

for the acquittal of the accused.

On the other hand, the learned Addl. Public Prosecutor Mr. V.R. Balasubramaniam would submit in his reply argument;

(i) that the prosecution witnesses have cogently and consistently spoken about the incident occurred in front of the house of one Lakshmi,

concubine of A1 and the deceased falling subsequently on the northern end of the tar road and therefore, it cannot be presumed that the entire

occurrence had taken place in a single place, but a part of the incident had taken place at the tar road and it is a continuous occurrence, and

therefore, the evidence of prosecution witnesses to the effect that the occurrence had taken place at tar road cannot be taken otherwise; as in the

complaint lodged immediately by P.W. 1, the above fact has been clearly mentioned and the investigation also commenced soon after and the

documents were prepared immediately.

(ii) that the delay in sending the F.I.R. to the Court has been satisfactorily explained by the prosecution and the said delay was only due to the

gravity of the offence in view of the death caused to Manivel and the subsequent alteration of the offence would also account for the delay, which

would not in any way affect the case of the prosecution nor prejudice the accused nor it can be said that there was concoction of the F.I.R. or its

ingredients, when the F.I.R. has been lodged immediately after the occurrence.

(iii) that though some of the prosecution witnesses are interested, they happened to be present in the scene of occurrence and they have spoken to

the effect what they have witnessed in the place of occurrence and therefore, their evidence cannot be rejected merely because they are related to

the deceased family.

(iv) that the recovery of the weapons M.Os. 1 & 2 at the pump set room of the accused 1 & 2, pursuant to Ex.P.5 would categorically show the

involvement of the accused 1 & 2 in the occurrence and the wrong description of M.O. 1 as ''Sulukki'', which is actually a ''Vel'' will not affect the

case of the prosecution, as it has been identified correctly by the prosecution witnesses.

(v) Moreover, the accused who were putting a case of private defence had indirectly admitted the incident which took place on 24.7.2002 at

about 6.30 am at the place of occurrence by stating that A1 had taken the wooden log and hit against P.Ws. 1 & 2 in order to escape from the

attack made against them by the deceased and P.Ws. 1 & 2, which case has not been established and therefore, the crime against the accused has

been proved by the prosecution witnesses supported by circumstantial evidence viz., the recovery of weapon.

Further, the learned Addl. Public Prosecutor would further submit in his argument that the enmity prevailed in between the accused and the victims

would further strengthen the case of the prosecution and the occurrence in which A1 and A2 had caused lethal injuries to the deceased and the

victims - P.Ws. 1 & 2 and therefore, the judgment of conviction and sentence passed against the accused A1 & A2 is proper, which need not be

set aside and it should be confirmed. In support of his contentions, he had also placed reliance on the following judgments:

2007 (2) SCC (Crl.) 382 (Rotash v. State of Rajasthan)

Sarwan Singh and Others Vs. State of Punjab, .

AIR 1987 SC 1328 (Dalbir Singh v. State of Punjab)

AIR 2007 (2) SCC (Crl) 390 (State of M.P. v. Mansingh)

We have given our anxious thought to the arguments advanced by both sides in respect of their case and perused the oral and documentary

evidence and the citations produced.

The case of the prosecution is that .on 24.7.2002 at about 6.30 a.m. in front of the house of Lakshmi, the concubine of A1, the said A1 and

the deceased Manivel were picking up quarrel with each other. On hearing the shouting, the sons of the deceased Manivel viz., P.Ws. 1 & 2, who

were residing opposite to the house of the said Manivel had rushed to the place of occurrence and in the meanwhile, A1 had gone inside the house

of Lakshmi, brought M.O. 1 Sulukki and stabbed on the abdomen of Manivel due to which his intestine protruded out and had fallen at the tar

road which is lying on the southern side running east west. When P.Ws. 1 & 2 questioned about the stabbing of their father, the 1st accused also

attempted to attack with M.O. 1 and therefore, P.Ws. 1 & 2 ran towards west and they were prevented by A2 and A2 attacked on P.Ws. 1 & 2

Aruval-M.O.2 in his hand. In the mean time, the other witnesses viz., P.Ws. 3 to 7 to had come to the spot on seeing the incident. Immediately,

A1 and A2 had fled away from the scene of occurrence with the weapons M.O. 1 & 2 in their hands.

P.Ws. 1 to 7 had spoken about the occurrence. Ex.P.2 observation mahazar was prepared immediately after the registration of the case and it

would show that the place of occurrence was in front of the house of Lakshmi and at the edge of the northern road where the deceased Manivel

fell down after being attacked by A1. Apart from that in the rough sketch, the investigating officer has noted two places of occurrence i.e. one in

front of the house of Lakshmi and in the tar road where the deceased fell down. Though there are two places of occurrence, the later occurrence is

the continuance of the first occurrence and therefore, the discrepancies or contradictions as pointed out by the learned counsel for the appellants

will not loom large. Because the occurrence had taken place in both the places, which has been correctly explained in Ex.P.2 observation mahazar,

prepared immediately with out delay. Therefore, the contention of the learned counsel that the place of occurrence is not properly proved by the

prosecution is not sustainable.

The case suggested by the defence during the course of the cross examination of the prosecution witnesses was that there were several

disputes between the accused and the deceased Manivel. The dispute erupted between the accused and the deceased family immediately prior to

the occurrence was that P.W. 2-Elephant Rajan had borrowed three sovereigns of jewels from one Salt @ Govindasamy and pledged the same.

When the Sait gave complaint against P.W. 2, by the intervention of Al, P.W.2 had executed a promissory note in favour of Al for a sum of Rs.

12,000/- in lieu of the jewels borrowed from the Sait 8 Govindasamy, which erupted grudge in the minds of the deceased Manivelu and other

family members. On 23.7.2002, when the deceased and his sons went to the house of Al to question his highhandedness and to return back the

pronote, A1 was not available in the house and therefore they returned back after informing the wife of Al about their visit. On 24.7.2002 in the

morning, the said Manivel and other family members had rushed to the house of Al, where he was staying with Lakshmi and had picked up a

quarrel for the return of the said promissory note and in the attempt to thwart the attack made by Elephant Rajan-P.W. 2 with Sulukki M.O. 1

against Al, Al had just deviated from his upright position and therefore, the stab fallen on the deceased Manivel. When again P.W. 2 attempted to

attack A1 and others with the said Sulukki, Al had taken a wooden log and hit against P.Ws. 1 & 2 by virtue of right of private defence in order to

escape from the place of occurrence said to have taken place on 24.7.2002 at about 6.30 a.m. in front of the house of one Lakshmi as described

in the prosecution case and A2 was not at all present at the scene of occurrence.

The case of the prosecution is that Al had taken Sulukki-M.O. 1 from the house of Lakshmi and had stabbed against the said Manivel.

Whereas the defence cape put forth is that P.W. 2 had taken the Sulukki and made an attempt to attack A1 and on the deviation by A1, the attack

landed on the abdomen of his father Manivel and caused his death. At this stage, we have to see whether the wrong description of the weapon as

''Sulukki'' when the actual weapon recovered was only a ''Vel'', would affect the case of the prosecution. No doubt the prosecution witnesses had

identified and spoken about M.O. 1 as ''Sulukki''. Whereas the description as put forth to the prosecution witnesses would show that it is only a

''Vel'' and not a ''Sulukki'', which would be different from a Vel. The case of the defence is also to the effect that with the weapon M.O. 1

(whether it is ''sulukki'' or ''vel''), P.W. 2 had attacked A1 and on the deviation only, it had landed on Manivel and therefore, the question of

identity is not in dispute and the wrong description of the weapon M.0.1 as ''Sulukki'' will not in any way affect the prosecution case.

Under the above facts and circumstances of the case, now the point to be considered is whether the weapon M.O.1 belongs to A1 or P.W. 2.

On a careful perusal of the evidence of the prosecution, we could see from the evidence of P.W. 10 that accused 1 & 2 had given their confession

statements when their arrest was made and only on admissible portion of confession of A1 viz., Ex.P.5, M.O.1, M.O.2 and M.O.7 (''Sulukki'' or

''Vel'', Aruval and promissory note executed by P.W.2 in favour of A1) were recovered from the pump set room under Ex.P.6, in which P.W. 10

had also signed. Therefore, Ex.P.5 coupled with the evidence of P.W. 10 would go a long way to show that M.0.1 Sulukki (actually a ''Vel'') was

seized from the pump set room belonging to A1 as identified by him. The important document viz., the promissory note executed by P.W. 2 in

favour of A1 (M.O. 7) was also seized from the said place which would show the enmity prevailed in between the accused and the victim family

and the cause for the occurrence was the execution of pronote in favour of A1 for the consideration of three sovereigns of gold chain obtained

from one Sait @ Govindasamy. The said M.Os.1, 2 & 7 seized from the premises belonging to A1 did not probabalize the case of the defence as

put forth during the course of examination of prosecution witnesses. Whereas, the said seizure of M.O. 1, M.O. 2 and M.O. 7 from the place of

A1 would support the evidence of P.Ws.l to 7 as reliable since they were present at the scene of occurrence and on spoke on the prosecution

case.

Apart from that P.Ws. 1 & 2 had sustained injuries in the occurrence on the assault made by A2 with weapon M.O. 2. The accident register

of F.W. 1 was produced as Ex.P.9 and the accident register of P.W. 2 was produced as Ex.P.10, which would show that P.Ws. 1 & 2 had

sustained cut injuries and the evidence of Doctors P.Ws. 13 and 14 who examined P.Ws. 1 & 2 would go to show that P.Ws. 1 & 2 were treated

for the injuries sustained by them in the incident taken place on 24.7.2002 at 7.30 a.m. at the place of occurrence.

Let us now advert to the arguments advanced by the learned counsel for the appellants that the delay in dispatching the F.I.R. is fatal to the

case of the prosecution. The occurrence had taken place on 24.7.2002 at 6.30 a.m. Immediately after the occurrence, the complaint was lodged

and the F.I.R. was prepared without delay. But admittedly, it had reached the Court only on 26.7.2002. The learned counsel for the appellants has

cited an authority reported in Marudanal Augusti Vs. State of Kerala, to the effect that the delay caused in despatching the F.I.R. to the Court

would amount -to failure on the side of the prosecution to prove its case from all reasonable doubts. The relevant portion of the said judgment

reads as follows:

The most serious infirmity which appears in the case is that although the F.I.R. was lodged on the midnight of 23/24.6.1971 it was despatched to

the Sub-Magistrate and received by him at 5.30 a.m. on the 25th June, 1971 that is to say there was a delay of as many as 29 hours in the receipt

of the F.I.R. by the Sub Magistrate. The Investigating Officer in spite of being questioned on this matter, does not appear to have given any

explanation whatsoever for this delay. On the other hand, he admits that the F.I.R. was despatched through express delivery. Indeed, if that was

so, the F.I.R. should have reached the Magistrate much earlier. That apart, there are intrinsic circumstances which through serious doubt on the

prosecution case.

He would also submit two other authorities reported in In Re: Karunakaran and Another, and In Re: Gabriel, of our High Court to the effect that

the receipt of the F.I.R. should have been acknowledged by the Magistrate by putting time and date without fail and on failure to do so, it would

be amounting to dereliction of duty.

The learned counsel for the appellant had also cited an another authority reported in Bijoy Singh and Another Vs. State of Bihar, failure to

explain the delay would require the court to minutely examine the prosecution version for ensuring itself as to whether any innocent person has been

implicated in the crime or not. The relevant passage reads as follows:

The delay in sending the copy of the FIR may by itself not render the whole of the case of the prosecution as doubtful but shall put the court on

guard to find out as to whether the version as stated in the Court was the same version as earlier reported in the F.I.R. or was the result of

deliberations involving some other persons who were actually not involved in the commission of the crime. Immediate sending of the report

mentioned in Section 157 Cr.P.C. is the mandate of law. Delay wherever found is required to be explained by the prosecution. If the delay is

reasonably explained, no adverse inference can be drawn, but failure to explain the delay would require the court to minutely examine the

prosecution version for ensuring itself as to whether any innocent person has been implicated in the crime or not.

The learned counsel for the appellant has also cited an

authority reported in Dr. M. Mohan Babu Vs. State of Andhra Pradesh, Commissioner of Police, Hyderabad City and another, . The relevant

passage reads as follows:

The trial Court, after appreciating the evidence on the record, opined that the first information report was ante-timed and that the ocular testimony

was contradicted by medical evidence. The trial Court also found the evidence of the alleged eyewitnesses P.Ws.2,3, 4 and 5 as unreliable not

only on account of the fact that they were all interested in the prosecution but also because their conduct was found to be unnatural. The trial Court

found merit in the case up by Neelu, deceased and Babu, the acquitted accused. Their case was that it was a blind murder and since none of the

alleged eyewitnesses had actually seen the occurrence, they had roped in the accused persons only qn account of the previous enmity on mere

suspicion.

On the contrary, the learned Additional Public Prosecutor would submit that the delay in reaching the F.I.R. would not affect the prosecution

case as the documents are prepared immediately without delay in the presence of the witnesses and therefore the authorities cited by the learned

counsel for the appellant would not be relevant to the facts of this case. He would also cite an authority reported in Sarwan Singh and Others Vs.

State of Punjab, to the effect that the delay in despatching the F.I.R. is not fatal to the prosecution case when the evidence of the prosecution is

cogent and clear to warrant the proof against the accused. The relevant head-note runs as follows:

Delay in despatch of the First Information Report is not a circumstance which can throw out the prosecution case in its entirety. - The High Court

was correct in holding that the trial Court was not justified in rejecting prosecution case on the ground of delay in the peculiar circumstances of the

case

He would cite yet another authority to the same principle reported in AIR 1987 SC 1328 (Dalbir Singh v. State of Punjab) which would show that

the alteration of offence from Section 307 I.P.C. to 302 I.P.C. due to the change of circumstances, may also help the prosecution, to explain the

delay on the part of the prosecution, which is not fatal. The relevant passage reads as follows:

So far as the case in hand is concerned it is not in dispute that the report was recorded at 3.25 p.m. on 30th May 1974 and it was sent to the

Magistrate on 31st May 1974 at 8.00 a.m. It is apparent that if the report itself was recorded at 3.25 p.m. and the police officer was investigating

the offence, next morning the report had been despatched to the Magistrate. It is also significant that initially as the report was recorded on the

basis of dying declaration of Makhan Singh an offence u/s 307 read with Sections 148 and 149 only was registered. It therefore could not be said

that there was any delay in sending the report to the Magistrate.

On a careful perusal of the aforesaid judgments of our Supreme Court cited by the learned counsel for the appellants and the learned

Additional Public Prosecutor in support of their case, we have to see whether the delay in dispatching the F.I.R. or the ante dated F.I.R. would

certainly affect the case of the prosecution despite the evidence adduced on the side of the prosecution are reliable, especially when their evidence

have established the case of the prosecution.

So far as the judgments cited by the learned Additional Public Prosecutor are concerned, we could see that the delay in dispatching the F.I.R.

to the Magistrate could have been explained and it depends upon the facts and circumstances of each case. It is also found that the change of

offence due to alteration of the offence could also make the delay in dispatching the F.I.R. Therefore, it does not matter in such cases.

From the judgments cited on either side, we should also see that normally the delay in dispatching the F.I.R. is pending the investigation

provided the delay has been satisfactorily explained by the prosecution by adducing cogent evidence and if the circumstances culled out from the

evidence of the prosecution would go to show that the registration of the F.I.R. was not doubted and the evidence adduced by the prosecution had

clinchingly proved the prosecution case, the delay in dispatching the F.I.R. may by itself not render the whole of the case of the prosecution

doubtful. It is just cautioning the courts to find out as to whether version stated before the Court was the same version as earlier reported in the

F.I.R. and whether any innocent person has been wrongly implicated in the crime or not. In such circumstances, the delay in F.I.R. will not damage

the case of the prosecution.

The learned'' counsel for the appellants would also submit that the evidence adduced on the side of the prosecution are interested and some of

the witnesses are closely related and therefore, the actual happening in the occurrence was not spoken to by the prosecution witnesses and

therefore, no reliance can be placed upon the witnesses who are related with each other. He would cite an authority reported in Bijoy Singh and

Another Vs. State of Bihar, . The head note run as follows:

No reliance can be placed upon the witnesses who are related with each other. Prosecution has apparently failed to explain the delay in sending the

copy of the F.I.R. To the Magistrate No reasonable explanation has been assigned for not recording the vital important statement of witness who

has conceitedly injured in the occurrence.

On the contrary, the learned Additional Public Prosecutor has produced a judgment of our Supreme Court reported in 2007 (2) SCC (Crl.)

390 (State of M.P. v. Mansingh) where the Supreme Court has laid down a dictum to the effect that the evidence of injured witnesses has greater

evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly and also to the effect that the discrepancies or

omissions on the part of the investigation or non mentioning of weapon or name of the accused in the F.I.R. is not fatal to the case of the

prosecution.

Now we should also see whether the present facts and circumstances of the case would attract the guidelines given by the Apex Court of India

in the aforesaid judgments. No doubt, the complaint was said to have been given immediately on 24.7.2802 by P.W. 1 and he was given a memo

referred to the Government Hospital for treatment. Similarly, the accident register copy of. P.W. 1 produced as Ex.P.9 would show that P.W.I

was admitted in the hospital for treatment on 24.7.2002 at 11.50 a.m. and he was alleged to have assaulted by three known male persons on

24.7.2002 at 7.30 a.m. with Aruval and ''Sulukki'' at main Road, Keelavarappankurichi. The said memo given by the police has been referred in

Ex.P.9. Ex.P.1 - complaint given by P.W. 1 would also prove that he has given the complaint at the police station and he was given a memo for

taking treatment in the hospital. P.Ws. 1 & 2 have admittedly sustained injuries and their evidence cannot be eschewed simply on the basis that

they are the sons of the deceased Manivelu.

The argument of the learned counsel for the appellants is to the effect that the papers relating to recording of 161 Cr.P.C. statements of the

witnesses did not reach the court immediately, but after a long delay of five months. Whereas the subsequent further statements recorded on

27.4.2002 have reached the Court immediately in a day or two and therefore, the prosecution case is doubtful and the benefit of doubt may be

given to appellants 1 &2.

On a careful consideration of the aforesaid argument, we could see that further statements recorded after the alteration of the case into 302

I.P.C. from the witnesses have reached the Court immediately and the earlier statements recorded by the I.O. from the witnesses when the case

was u/s 307 I.P.C. did not reach the Court along with other papers, but only reached long after the recording of the statement. The said

circumstances would itself explain that there is no question of any fabrication of earlier statements merely because it was sent to the Court

belatedly. The subsequent statements recorded reached the Court within a reasonable time. Therefore, the non sending of earlier statements along

with further statements in a reasonable time will not vitiate the case of the prosecution.

So far as the appreciation of evidence is concerned, we have already found that the recovery of weapon M.O. 1 at the place of A1 viz.,

pumpset room on the basis of the confession would go a long way to show that A1 is the aggressive party and the theory of private defence put

forth by the accused cannot sustain. In those circumstances, the evidence of P.Ws. 1 & 2, who were injured in the occurrence are very much

important and the other ocular evidence viz., P.Ws. 3 to 7, who were present at the scene of occurrence and witnessed the same have also

supported and corroborated the evidence of P.Ws. 1 & 2. In these circumstances, we could see an overwhelming prosecution evidence to the

effect that A1 had caused injuries on the abdomen of the deceased Manivel with M.G. 1 and on questioning the same, P.Ws. 1 & 2 were also

threatened by A1 and when they were escaping from the scene of occurrence, A2 had restrained them and had caused injuries on the body of

P.Ws. 1 & 2 with M.O. 2 Aruval. The said evidence coupled with the evidence of P.W. 13 and Ex.P9 would show that the F.I.R was registered

immediately on the complaint of P.W. 1 under major Section 307 I.P.C. and the said F.I.R. was altered on 28.4.2002 altering the offence to one

u/s 302 I.P.C. on the death of the deceased Manivel at Thanjavur Hospital, who succumbed to the injuries sustained in the occurrence. The delay

in F.I.R. reaching the Court was till 26.4.2002 by 9.30 a.m. At that time, the major Section booked against the accused 1 & 2 were only u/s 307

I.P.C. and the investigating officer had not sent the F.I.R. immediately to the Court. The said laxity or flaw on the part of the investigating agency

should not affect the prosecution case when it has clinchingly proved the guilt of the accused as narrated in the F.I.R. by the prosecution evidence.

The delay caused in dispatching the F.I.R was clearly explained by the prosecution witnesses and there is no question of any embellishment in the

case and no innocent person has been implicated due to such delay. Therefore, the delay caused in dispatching the F.I.R. would not affect the

investigation nor the prosecution case so far as the facts and circumstances of this case are concerned. Therefore, we are of the considered view

that the prosecution has established its case through the evidence of P.Ws. 1 to 7 coupled with the medical evidence given by P.Ws. 12 to 14

beyond all reasonable doubfra and therefore, we have no point to interfere with the judgment of conviction and sentence passed against the

accused on the charges framed against them and accordingly, the appeal is liable to be dismissed.

For the foregoing reasons, the appeal is dismissed confirming the conviction and sentence passed in S.C. No.79 of 2004 dated 27.4.2005 on

the file of the Sessions Judge, Perambalur, finding the accused/appellants guilty of the charges framed. The appellants 1 & 2 were released by this

Court on bail by order dated 23.3.2006 in Crl.M.P. No. 1571 of 2006 and 23.11.2005 in Crl. M.P. No. 8648 of 2005 respectively. Therefore,

the appellants are directed to surrender before the trial Court forthwith. The trial Court is also directed to take steps to secure the

accused/appellants to serve out the remaining period of sentence.

In view of our findings rendered in the above judgment, dismissing the appeal filed by the appellants, M.P. No. 1 of /2008 is closed.