Ramachandran, Pandi and Rajasekaran vs The State by, Inspector of Police, Tirupur North Police Station, Tirupur

P. Devadass, J.—Since both the Criminal Appeals arises out of the same Judgment, they were heard together and are being disposed of by

this common Judgment. In Crl. A. No. 66/2011, A1 to A3, in Sessions Case No. 194 of 2009 (VII Addl. Sessions Judge, formerly Fast Track

Court No. V) Tirupur and in Crl. A. No. 711 of 2010, A4, in the said Sessions Case, are challenging their conviction and sentences.

On 27.9.2010, A1 to A4 were convicted and sentenced as detailed below:-

Accused Conviction under Section Sentences imposed

A.1 (i) 341 IPC (i) 1 month Simple Imprisonment

(ii) 302 IPC (ii) Life sentence and fine of Rs. 10,000/-, in default, 6

months Rigorous Imprisonment

A.2 (i) 341 IPC (i) 1 month Simple Imprisonment

(ii) 307 IPC (ii) 10 years Rigorous imprisonment and fine of Rs.

5,000/-, in default 3 months Rigorous Imprisonment

A.3 (i) 341 IPC (i) 1 month Simple Imprisonment

(ii) 342 IPC (ii) 1year Rigorous Imprisonment

(iii) 302 r/w 109 IPC (iii) Life sentence and fine of Rs. 10,000/-, in default, 6

months Rigorous Imprisonment

A.4 (i) 341 IPC (i) 1 month Simple Imprisonment

(ii) 324 IPC (2 counts) (ii) 3 years Rigorous Imprisonment on each count and fine

of Rs. 1,500/- on each count, in default 2 months Rigorous

Imprisonment on each count.

All the sentences were directed to run concurrently.

The case of the prosecution, as set out in the prosecution evidence may be put as under:-

(i) Deceased Pandiyarajan, Dharma (P.W.1), Raja (P.W.2) and Prabhu (P.W.9) are brothers. Deceased married Chitra, sister of A1 to A3.

Nandini and Nandakumar are their children. Due to difference of opinion, the spouses separated. Chitra and her son are living in Pallapatti in

Dindigul District. The deceased worked in a Banian Company in Tirupur. P.Ws.1 and 2 are working in a Printing Press in Tirupur. Nandini resided

with her father. A1 and A2 are residing in Golden Nagar, Tirupur. A4 and A5 are their close relatives.

(ii) In the last week of April, 2008, P.W.1 brought Nandakumar from Pallapatti to their house in Tirupur. Subsequently, A1 to A4 took the boy

and left him with his mother. On 05.05.2008, at about 8.30 p.m., A1 to A4 came to the Printing Press, scolded P.Ws.1 and 2 for having brought

Nandakumar from his mother. They also threatened to kill the deceased since he was not living with his wife. A1 also went to P.W.2''s house with

a knife, told P.W.2 that he will kill the deceased. P.W.4 Illavarasi also witnessed this. P.Ws.1 and 2 informed this to the deceased. They wanted

to buy peace.

(iii) On 05.05.2008, at about 12.30 p.m., P.Ws.1 and 2 and the deceased proceeded to A1''s house. Near one Thangamani''s house, A1 to A4

came. A3 caught hold of the deceased. A1 frisked out a knife from his waist and stabbed the deceased on his abdomen. A2 knifed the deceased

on his left thigh. A4 assaulted P.W.1 on his left eye brow and right middle finger with an iron rod. The deceased died on the spot. In their

evidence, P.Ws.1 and 2 have not implicated A5. P.W.4 took P.Ws.1 and 2 to the Govt. Hospital, Tirupur.

(iv) At about 1.45 a.m., at the said hospital, P.W.10-Dr.Balaji examined P.W.2, seen an incised wound of about 15 cm x 10 cm x muscle depth

on his left side thigh, laceration of 2 x 1 m below left lower eye lid and abrasion on his left arm 2 x 1 cm. He referred him to Govt. Medical College

Hospital, Coimbatore for further treatment. He issued him Ex.P.15, wound certificate. At about 2.20 a.m., P.W.10 also examined P.W.1, seen an

incised wound of about 5 cm x 2 cm x 2 cm and abrasion of 2 cm x 1 cm on his right ring finger. He issued him Ex.P.16 wound certificate.

(v) At about 2.30 a.m., P.W.12, Jayaraman, Sub-Inspector, Tirupur North Police Station, received intimation from the said hospital. He visited the

hospital. At about 2.45 a.m., P.W.1 gave him Ex.P.1 complaint. At about 3.45 a.m., at the station, P.W.12 registered this case in Cr.No. 560 of

2008 under Sections 147, 148, 342, 307 and 302 IPC. He sent Ex.P18 Express FIR to the Court and copies to his Superiors.

(vi) P.W.14, Ramesh, Inspector, Tirupur North Police Station, on receipt of a copy of the FIR, commenced his investigation. At about 6 a.m., he

visited the scene place. In the presence of P.W.3, Veeramani and Kumar, prepared Ex.P.2, Observation Mahazar. Drew Ex.P.22-Rough sketch

of the scene place. Recovered M.O. 6 blood stained-sand and M.O. 7, plain-sand. In the presence of Panchatyatdars, he held inquest over the

dead body. Ex.P.23 is his Inquest Report. P.W.11 Balraj, Head Constable, took the dead body with Ex.P.24 requisition to the Govt. hospital for

conducting postmortem. P.W.14 examined P.Ws.1, 3 and other witnesses and recorded their statements.

(vii) At the said hospital, at about 1.45 a.m., P.W.7, Dr. Somasundaram conducted postmortem on the dead body of the deceased and noticed

the following injuries:-

(1) Abrasion upper part of left Earlobe (.5 x.5 cm) (2) Cut injury left mastoid region 3 x 1 x.5 cm (3) cut injury 8 cm below and lateral to the left

nipple. 4 x 2 x.5 cm (4) cut injury left loin slot 2 cm above runs laterally ends 5 cm below last ribs (7 x 2.5 x.5 cm above last rib and 7 x 2.5 cm

and when the probe(nc) passed lt(nc) enter into abdomen below the last ribs (5) cut injury left side of abdomen starts 25 cm below the medial end

of left collar bone and 9 cm from the lower end of sternum run lateral to medial and ends 1 cm lateral to left of umbilicus - the intestine oral

mesentery, the internal part of jejunum 3 x.5 cm contusion injury over mesentery.

(viii) P.W.7 opined that the deceased died due to shock and hemorrhage due to injuries to his vital organ (Ex.P.13 postmortem certificate).

P.W.10 opined that P.Ws.1 and 2 had simple injuries.

(ix) After postmortem, P.W.11 recovered M.Os.9 and 10 banian and pant from the dead body and hand over them to P.W.14. On 10.5.2008, at

about 6 a.m., near a burial ground, in Universal Road, Tirupur, P.W.14 arrested A.1. In the presence of P.W.5, Murugavel and Murugan, P.W.14

recorded Ex.P.5-confessional statement of A1. In pursuance of that, A1 produced M.Os.1 and 2 knife and shirt from a bush in Golden Nagar,

Tirupur. P.W.14 seized them. At the Govt. Medical College Hospital, Coimbatore, P.W.14 examined P.Ws.2 and 4 and recorded their

statements.

(x) In the meanwhile, A1 to A4 have surrendered in the Court. On 27.5.2008, P.W.14 took them into his custody. On 28.5.2008, at about 6

a.m., in the presence of P.W.6 Selvarani, V.A.O. and Kuppusamy, P.W.14 recorded their confessional statements. In pursuance of that, at about

12.30 p.m., from a bush in Golden Nagar, Tirupur, A2 produced M.O.2, Knife. A4 produced M.O.3, iron rod. P.W.14, seized them. He

produced the accused to the Court for judicial custody. From Judicial Magistrate No. I, Tirupur, P.W.14 took A5 to his custody. In the presence

of said witness, A5 gave him Ex.P11 confessional statement. In pursuance of it, A5 produced him M.O.8, bill-hook from his house. P.W.14

seized it.

(xi) P.W.14 examined P.Ws.7 and 10 as to the injuries of P.Ws.1 and 2 and the deceased with reference to the seized weapons. He sent the

case-properties to the Lab through Court for examination. He obtained Exs.P.19 to P.21 scientific reports. Concluding his investigation, he filed

the Final Report for offences under Sections 147, 148, 341, 342, 302, 149, 302 r/w 149, 109 and 307 r/w 149 IPC.

The Trial Court framed the charges as against accused as under:

Accused Charges

A1 341, 302, 307 r/w 149 (2 counts)

A2 341, 302 r/w 149, 307, 307 r/w 149 ( 2 counts)

A3 341, 342, 302 r/w 149, 307 r/w 149 ( 2 counts)

A4 341, 302 r/w 149, 307 r/w 149, 307

A5 341, 302 r/w 149, 307 r/w 149, 307

To substantiate the charges, prosecution examined P.Ws.1 to 14, marked Ex.P.1 to Ex.P.24 and exhibited M.Os. 1 to 12.

On the incriminating aspects appearing in the prosecution evidence, when the Trial Court examined the accused, they came forward with the

version that they have been falsely implicated in this case. They did not examine any witness nor file any document.

Analysing the evidence, the Trial Court acquitted A5 from all the charges, however, convicted and sentenced A1 to A4 as stated in para 3,

supra.

Mr. S.Ashok Kumar, learned Senior Counsel for Mr. A.Amarnath, learned counsel for A1 to A3 contended as under:

i) Since the deceased was not living with their sister, as between the deceased and A1 to A3 there is strong motive. They have roped the accused

in this case.

ii) P.Ws.1, 2, 4 and 9 are closely related to the deceased, as such they are highly interested witnesses and have spoken falsehood. There is

inconsistency in their evidence.

iii) As regards prosecution version, there is material contradiction in the FIR and in the evidence of eyewitnesses, P.Ws.1 and 2.

iv) In the FIR, P.W.1 mentioned that A5 also participated in the occurrence and assaulted him with a bill-hook. However, in the evidence, both

P.Ws.1 and 2 have excluded A5.

v) The FIR in this case is fabricated. It had shaken the prosecution case and the prosecution evidence.

vi) On the occurrence day, there is no reason for the deceased and his brothers, P.Ws.1 and 2 to go to A1''s house, at about 12.30 p.m., for a

peace talk. The prosecution case suffers from inherent improbability.

vii) There is unexplained delay in submitting the FIR to the Court.

viii) In order to withhold information relating to when, where, by whom the injuries were caused to P.Ws.1 and 2, their Accident Register copies

were not produced by the prosecution.

ix) Section 27 Evidence Act recovery, namely, weapons are just stage managed. The alleged recovery witnesses P.Ws.5 and 6 are obliging

witnesses of the police. Though P.Ws.1 and 2 have stated that A5 has not participated in the occurrence, prosecution pressed into service M.O.8

bill-hook stating that based on A5''s confession that has been recovered.

x) In the circumstances, prosecution has not established its case beyond all reasonable doubts. Giving them the benefit of doubts, the accused are

entitle to be acquitted.

Mr. T. Muruganantham, learned counsel for A4 reiterated the submissions of the learned Senior Counsel.

On the other hand, Mr. V.M.R. Rajendiran, learned Additional Public Prosecutor countered them as under:-

i) Since there was no evidence as against A5, he has been acquitted and there is evidence as against A1 to A4 they were convicted.

ii) Merely because P.Ws.1, 2, 4 and 9 are related to the deceased their evidence cannot be rejected. Merely because of some minor discrepancies

their evidence cannot be discarded.

iii) P.Ws.1 and 2 are eyewitnesses as well as injured. They have clearly spoken as to they having witnessed the entire occurrence.

iv) The recovery of the weapons, namely, M.Os.1 and 2 knives and M.O.8 bill-hook has been substantiated by P.Ws.5, 6 and 14.

v) Prosecution has established its case as against A1 to A4 beyond all reasonable doubts. Thus, they were rightly convicted and sentenced.

We have anxiously considered the submissions of both sides. Carefully perused the entire evidence on record and the impugned Judgment of

the Trail Court.

On the night of 05.05.2008, the deceased Pandiyarajan was found dead with multiple injuries. The evidence of P.W.7 Dr. Somasundaram,

who conducted autopsy on his dead body discloses that he died due to homicidal violence. On the same day, P.Ws.1 and 2 Dharma and Raja

were found with injuries.

This case is mainly rests on the evidence of eyewitnesses, namely, P.Ws.1 and 2. They are brothers of the deceased. P.W.4 Illavarasi, who

has been examined to speak about an aspect prior to the occurrence, is wife of P.W.2. Thus, they are all closely related to the deceased. Merely

on account of that their evidence cannot be discarded unless they are speaking falsehood [see KARUPPASAMY @ RAMALINGAM Vs. THE

STATE REP. BY THE INSPECTOR OF POLICE, KAANAI POLICE STATION, VILLUPURAM DIST. (2012 (1) TLNJ 493 (Crl.))]. So,

evidence of such witnesses have to be very carefully and cautiously approached.

The deceased married Chitra, who is sister of A1 to A3. A4 married her sister. A5 is also closely related to them. Due to family quarrel, the

deceased was not living with his wife. They got separated. So, also their children, namely, Nandhakumar and Nandini. The son is with his mother,

while the daughter is with her father. On account of this, there was no love last between both sides. They are in inimical terms.

Then, the deceased was working in a Banian company in Tirupur and P.Ws.1 and 2 are working in a Printing Press in Tirupur. A1 and A2 are

doing some jobs in Tirupur. Both sides are living in Tirupur. One week prior to the occurrence, P.W.1 had brought Nandakumar to their house in

Tirupur. This was resented to by A1 and his brothers, they sent the boy to his mother and they were also aggrieved in the deceased not living with

their sister.

In this backdrop of the matter, P.W.1 has stated that on 05.05.2008, at about 08.30 p.m. when he and P.W.2 were in the Printing Press, A1

to A4 came, shouted at them for having brought the boy from his mother and they have also threatened to kill the deceased since he was not living

with their sister. P.W.2 also stated so. But, in the FIR, P.W.1 had stated that A1 alone came to the printing press and shouted at him and vowed

to kill the deceased. P.W.14 Ramesh, Inspector, who investigated the case, during his cross examination stated that when he had interrogated

P.Ws.1 and 2, they did not tell that on that day A1 to A4 came to the printing press and criminally intimidated them as they have deposed in the

Court.

It is also the evidence of P.W.2 that thereafter A1 came to his house wielding a knife and told him that he will kill the deceased. P.W.4 also

corroborated her husband. This aspect assumes importance in this case because it has been projected by the prosecution as a prelude for them to

go to A1''s house and thereafter, the occurrence had taken place. However, neither P.W.4 nor P.W.2 have stated this in their previous statements

to P.W.14 when he had interrogated them.

According to P.Ws.1 and 2, immediately they have conveyed to the deceased that the accused have vowed to kill him, in the circumstances, to

have compromise talk with them, at about 12.30 a.m., the deceased, P.Ws.1 and 2 have proceeded to A1''s house. It is not the case of the

prosecution that the accused have invited them for a peace talk. Nor it is the case of the prosecution that the deceased and his brothers have

informed them that they are coming for compromise talk. There is enmity as between both sides. Even according to P.Ws.1, 2 and 4, at about

8.30 p.m., the accused have criminally intimidated them and also vowed to kill the deceased. In the circumstances, during that odd hour, their

going to the house of the accused, also unarmed highly unbelievable, not appealing to common sense and reason, it suffers from inherent

improbability.

P.Ws.1 and 2 were stated to have sustained injuries in the occurrence. They were treated in the Govt. Hospital, Tirupur. As stated by P.W.10

Dr. Balaji, who treated them that their Accident Register will contain information as to the name of the injured, when, where and by whom the

injuries were caused to them. P.W.14 also did not deny about the Accident Register copies. But, they were not filed. Only their wound certificates

Exs.P15 and P16 have been filed. So, prosecution has burked vital information relating to the injuries sustained by P.Ws.1 and 2.

The FIR has been lodged by P.W.1. In the FIR, he had distributed the injuries to each accused, namely, A1 to A5. He had also mentioned the

persons who have caused injuries to him and to P.W.2. It includes A5 also. He had also stated the weapons wielded by them at the time of

occurrence. He had also specifically stated that A5 was present at the scene place wielding a bill-hook and had assaulted him. However, during his

chief examination in the Court, he had completely excluded A5. He also confirmed this in his cross examination. He had also stated in his evidence

that he did not mention the name of A5 in the FIR. P.W.2 also deposed similarly. Thus, in the FIR, P.W.1 had stated one thing and in his evidence

he had stated another thing. Both the eyewitnesses have spoken inconsistently.

No doubt, FIR is not a substantial piece of evidence, but, in a criminal case, it is an important document because it sets the criminal law in

motion. It contains the first, earliest version, information concerning the commission of a cognizable offence (see Section 154 Cr.P.C.). So much is

the importance attached to such a piece of document in a criminal case. That is how it has been repeatedly held that it must reach the Law

Enforcing Authorities as well as the Court with quickest possible time. Every delay of it must be accounted for, explained. It is with a view to

exclude, in the meanwhile, script writing by prosecution implicating innocent persons, making additions and deletions. Fabrication in the FIR will tell

upon the prosecution version [see KUMAR @ THAMBI AND OTHERS Vs. STATE BY INSPECTOR OF POLICE, DINDIGUL TALUK

POLICE STATION, DINDIGUL DIST. (2012 (2) MLJ (Crl.) 494)].

In the case before us, it is clear from the evidence of P.Ws.1 and 2 that FIR in this case is a fabricated document. It shakes the very

prosecution version of the case as well as the credibility of vital prosecution witnesses, namely, P.Ws.1 and 2, who are eyewitnesses in this case.

In this context, it is relevant to note that in DR.SUNIL KUMAR SAMBHUDAYAL GUPTA AND OTHERS Vs. STATE OF

MAHARASHTRA [2010 (13) SCC 627], the Hon''ble Supreme Court held that where the omissions amounts to a contradiction, creating a

serious doubt about the truthfulness of a witness and other witnesses who have made material improvements before the Court in order to make the

evidence acceptable, it is unsafe to rely upon their evidence. [Also see in J.XAVIER RAJ Vs. STATE REPRESENTED BY INSPECTOR OF

POLICE, DINDIGUL TALUK POLICE STATION, DINDIGUL DIST. [2012 (1) MLJ (Crl.) 561]].

The evidence of P.Ws.1 and 2 are intermixed. With reference to the prosecution case stated in the FIR and as deposed by P.Ws.1 and 2 in

the Court that they cannot be separated as regards A1 to A4 and A5. In the circumstances, it will not be a correct approach to exclude A5 and

construct a new case for the prosecution with reference to A1 to A4 and it will be totally as against canons of Criminal jurisprudence and the basic

principles of appreciation of witnesses and testing of their credibility in a criminal case.

There is yet another infirmity in this case. According to prosecution, the occurrence was on 05.05.2008, at about 12.30 a.m. The FIR was

recorded by P.W.12 Jayaraman, Sub-Inspector of Police, at the Govt. Hospital, Tirupur at about 2.45 a.m. and it was registered by him at the

Tirupur North Police Station at about 3.45 a.m. The FIR has been handed over to Judicial Magistrate No. I, Tirupur, on the next day, at about 10

a.m. From the cross examination of P.W.12, it is seen that the said court is situate within 250 yards from the Police Station. So, the FIR has

reached after 6 hours of delay. As to this, P.W.12 was also cross-examined by the defence. It was also suggested to him that the FIR was not

registered at the time and place as stated by him. Absolutely, there was no explanation from him as to the said delay.

Right from the moment FIR was registered u/s 154 Cr.P.C. the FIR, the documents seized, the case-properties recovered and statement of

witnesses recorded u/s 161 Cr.P.C. must reach the concerned Court with least delay. As already stated it is to prevent embellishment of true

version as to the occurrence and false implication of innocent persons. Because, every delay in submitting these documents to the Court will give

much scope and chance for interpolation, story telling and any unreasonable and unexplained delay on this account will affect the credibility and the

quality of the evidence of prosecution witnesses, more particularly eyewitnesses and key-witnesses in a case.

In the facts and circumstances of this case, the said unexplained delay in FIR reaching the Court assumes signal importance since we have held

that the FIR in this case is not free from doubt. This delay goes to the root of the matter. It shakes the version of the prosecution case embodied in

the FIR.

When the prosecution version in the FIR and the credibility of the key prosecution witnesses is doubtful, Section 27 Evidence Act recoveries

pressed into service in this case will not withstood the already crumbling case of the prosecution.

Thus, on evaluation of the evidence of P.Ws.1, 2 and 4 we come to the irresistible conclusion that they did not inspire confidence in them. In

the facts and circumstances, it is very hazardous to place reliance on their evidence and visit the accused with penal consequences. In the

circumstances, it is quite unsafe to act upon their evidence. Thus, the prosecution has not established its case beyond all reasonable doubts. In the

result, both the Criminal Appeals are allowed. The conviction recorded and the sentences awarded to the appellants in Sessions Case No. 194 of

2009 by the learned Additional Sessions Judge, Tirupur are set aside. The appellants are acquitted from all the charges. The Superintendent,

Central Prison, Madurai is directed to release them forthwith, if their further custody is no longer required in connection with any other case. Fine

amount shall be refunded.