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Judgment
S. Nagamuthu, J.—The crime with which we are now dealing with was committed in the most barbaric and inhuman manner. The entire occurrence was pre-planned. It was committed at night by about 10.30 p.m. Three victims were done to death in a gruesome manner by throwing bombs and then cutting them with lethal weapons; of whom two were innocent children of age 8 years and 2 years, who at the time of occurrence were sleeping innocently. Five others were injured. The manner in which the crime has been executed would shock the collective conscience of the entire community. The act was dastardly. The assailants did not possess basic humanness and need to be punished with maximum quantum of punishment. Having regard to all the above circumstances, let us now deal with the facts and law involved in these appeals.
The appellant in Crl. A. 6 of 2006 is the second accused and the appellants in Crl.A.34 of 2006 are the accused 1,5,6,14 and 15 in Sessions Case 379 of 1999 on the file of the learned Additional District and Sessions Judge (FTC.NO.I) Tuticorin. Originally, there were 17 accused.
Before the trial Court, there were totally 17 accused. The trial Court famed the following charges against them:
Charge Under which Section No. Against which accused
I 1481.P.C. A.l to A.15
II 302 r/w 1491.P.C. for having committed the murder of Selvanayagam-Dl A.l, A.2, A.5, A.6 and A.14
III 302 r/w 1491.P.C. for having committed the murder of Sivakumar -D.2 A.5, A.6 and A.15
IV 302 r/w 1491.P.C. for having murdered Manmohan Singh-D.3 A.5, A.6 and A.15
V 149 r/w 3021.P.C. in respect of the murder of Sel-vanayagam -D.l A.3,A.4, A.7, A.13 and A.15.
VI 149r/w302I.P.C in respect of the murder of Sivaku-mar-D.2 A.l to A.4 and A.7 to A.14
VII 302 r/w 1491.P.C. in respect of the murder of Manmohan Singh-D.3 A.l to A.4 and A.7 to A.M.
VIII 4491.P.C. for having trespassed into the house of Selvanayagarm A.2, A.5, A.6, and A.14.
IX 3 and 4 of the Indian Explosive Substances Act in respect of the attack made on Omana A.9 and A.10
X 3 and 4 of the Indian Explosive Substances Act in respect of the attack made on Sivaraj A.4 and A.8
XI 3 and 4 of the Indian Explosive Substances Act in respect of the attack made on Shanthi A.U and A.12
XII 3 and 4 of the Indian Explosive Substances Act in respect of the attack made on Sundarambal A.13
XIII 324 I.P.C. for having caused hurt to Shanmugam A.7
XIV 5 of the Indian Act for possession of explosive substances. A.3
Additional Charge No. 1 was framed against A.1 and A.14 u/s 3 of Indian Explosive Substances Act in respect of the attack made on Selvanayagam-Dl;
Additional Charge No. II was framed against A.5, A.6 and A.15 u/s 3 of the Indian Explosive Substances Act in respect of the attack made on Sivakumar-D2;
Additional Charge No. III was framed against A.5 and A.6 and A.15 u/s 3 of the Indian Explosive Substances Act in respect of the attack made on Manmohan Sing-D3.
Since two of the accused, by name, Sathyaraj and Kalaimani died during trial and before framing of charges, only 15 accused were tried by the trial Court.
The trial court acquitted the accused 2 and 7 to 13 of all the charges framed against them. However, the trial Court has convicted the appellants in these appeals, who are A.l, A.2, A.5,A.6, A.14 and A.15 as detailed below.
For the sake of convenience, the appellants are referred as per their ranking before the trial Court. The first accused stands convicted under Sections 148 and 302 r/w 149 and Section 3 of the Indian Explosive Substances Act. The second accused stands convicted under Sections 148 and 302 r/w 149 and 449 of I.P.C. The fifth and sixth accused stand convicted under Sections 148, 302 r/w 149(3 counts) and 449 I.P.C. and also u/s 3 (2 counts) of the Indian Explosive Substances Act. 14h accused stands convicted under Sections 148, 302 r/w 149 (2 counts) and 449 I.P.C. and Section 3 of the Indian Explosive Substances Act. 15th accused stands convicted under Sections 148, 302 r/w 149 (2 counts) and Sections 3(2 counts) of the Indian Explosive Substances Act. The trial Court has sentenced all the accused for the offence u/s 148 I.P.C. to undergo R.I for one year. The accused 2,5,6 and 16 to undergo R.I. for three years for the offences u/s 449 I.P.C; the accused 1,2, and 14 to undergo imprisonment for life and to pay a fine of Rs. 1,000/-, in default to undergo further R.I. for one year for the offence under Sections 302 r/w 149 I.P.C; the 15th accused to undergo imprisonment for life for each count (2 counts) and to pay a fine of Rs. 1,000/- each, in default to undergo further R.I. for one year for each count; the accused 5 and 6 to undergo imprisonment for life, for each count (3 counts) and to pay a fine of Rs. 1,000/- in default to undergo further R.I for one year for each count for the offence u/s 302 r/w 149(3 counts); the 1st and 14th accused to undergo R.I. for three months for the offence u/s 3 of the Indian Explosive Substances Act; and the accused 5 and 6 and 15 to undergo R.I. for three months for each counter(2 counts) for the offence u/s 3 of the Indian Explosive Substances Act; Challenging the same, the accused 1,2, 5, 6,14 and 15 have come forward with these appeals.
The brief facts of the prosecution case is as follows:
i) This is a case of triple murder. The deceased Selvanayagam (hereinafter called as D.l) is the father of the deceased Selvakumar and Manmohan Singh(here-in after called as D2 and D.3 respectively) D.2 and D.3 were young children of 8 years and 2 years old respectively. In the gory incident, these two innocent children have been mercilessly killed by throwing country bomb on them. Of course D.l was not a man of good reputation. He was involved in illicit arrack business. For some time D.l was selling arrack at the garden of the deceased, Sathyaraj, since the deceased opposed the same. P.W.I, who is the brother of D.l and D.l got enraged over the same, as a result of which, they attacked Sathyaraj. On the complaint of Sathyaraj, a case was registered against D.l and P.W.I and the same is pending. The appellants herein and the rest of the accused were close to each other and they form a group against D.l Some time before the alleged occurrence in this case, there is a group clash between the group led by D.l on one side and the group led by Sathyaraj on the other side. Houses were seriously damaged in the said occurrence. Separate cases were registered against each group and the said cases were still pending. From that time onwards, the above two became warning groups against each other.
ii) On 18.056.1996 at about 10.30 P.M., the deceased Selvanayagam-Dl was white washing his residence, as he had a plan to go to Velankanni for Dharshan. P.Ws 5 and 7 were engaged in white washing. P.W.2, the wife of D.l was helping them. The young and innocent children D.2 and D.3 and one another by name Arul were sleeping in the ''Mutram''. Since they were engaged in white washing all the lights in the house were on.
iii) At that time, all the accused came and trespassed into the house of D.l. Accused 1,3,9,10 to 13 and 14 and Sathyaraj (since died) had country-bombs. Accused 5 and 6 and Kalaimard (Since died) had petrol-bombs and sickles; Accused 2 and 7 had sickles; Accused 4, 8 and 15 had petrol-bombs; On trespassing into the house of the deceased, A.l, A.14 and Sathyaraj hurled country-bombs on D.l and the accused 2, 5 and 6 attacked him with sickles on his right shoulder and after D.l had fallen, the 14th accused held the tuft of D.l and Kalaimani (since died) severed the head of D.l.
iv) Then the accused 5,6 and 15 and Kalaimani(since died) hurled petrol bombs on the young child Sivakumar, who was then sleeping. The 6th accused cut him with arrival on his head. He also died on the spot.
v) The accused 5,6 and 15 , Kalaimani(since died) and Sathyaraj (since died) hurled petrol bombs on the innocent child Manmohan singh who was sleeping and thereafter, Sathyaraj cut Manmohan singh on his head. Manmohan Singh also died on the spot.
vi) The accused 9 and 10 hurled country-bombs on P.W.4 and caused injuries on his left leg, stomach, right ankle and other parts of the body.
vii) The accused 11 and 12 hurled country-bombs on P.W.3 and caused injury on her left shoulder, stomach, right thigh, left knee and other parts of the body. The accused No. 13 hurled country bombs on one Sundaramabal and caused injuries on her nose, lips and other parts of the body. The 7th accused cut P.Ws. l and 5 with Aruvals on their neck and caused injuries. Kalaimani (since died) carried the severed head of D.l followed by other accused and they put it on the ''Peedam'' of a local temple and thereafter, they fled away. The occurrence was witnessed d by P.Ws 6 and 7 also.
viii) After the occurrence was over, P.W.I, who is an eye witness to the occurrence, proceeded to P.W.8, the then Village Administrative Officer of the occurrence village, namely, Veppangu-lam village. P.W.I informed P.W.8 about the occurrence and he gave a written complaint to him at 1.00a.m. on 19.05.1996. P.W.8, made an endorsement on the same and returned the same to P.W.I with a direction to him to go and submit the same to the Police. Accordingly, P.W.I proceeded to the Police Station and gave Ex.P.l to P.W.25.
ix) P.W.25 who was the then Inspector of Police at Puliampaptti village, on receipt of Ex.P.l, registered a case in Crime No. 34 of 1996 under Sections 147, 148,149, 448, 307 and 302 r/w 149 I.P.C and Section 3 and 4 of the Indian Explosive Substances Act. Ex.P.35 the first information Report. He forwarded Ex.P.l and P.35 to the Jurisdictional Magistrate. The learned Judicial Magistrate No. I, Kovilpatti received the same on 20.05.1996 at 8.00 a.m.
x) P.W.25 on taking up the investigation, proceeded to the scene of occurrence on 19.05.96 at 5.30a.m. and prepared the Observation Mahazar, Ex.P.2 in the presence of P.W.8 and another witness. He also prepared Ex.P36 a rough sketch relating to the place of occurrence. Then he prepared Ex.P.3 another observation mahazar in respect of the place where the severed head of D.l was found. He prepared Ex.P.37, a rough sketch showing the said place. Then at 7.05 a.m., P.W.25 conducted inquest on the trunk of D.l and prepared the inquest report Ex.P.38. At 9.20 a.m. he conducted another inquest near the severed head of D.l and prepared a separate inquest report Ex.P.39. Then betweenl0.20 a.m. and 12.00 noon, he conducted inquest on the body of the deceased Sivakumar, D.2 and prepared the inquest report Ex.P.40. Between 12.05 p.m. to 1.30p.m. he held inquest on the body of Manmohansingh, D.3 and prepared the inquest report Ex.P.41. Then he forwarded the dead bodies of D.l to D.3 to the Government Hospital for autopsy with a requisition, Ex.P.31.
xi) Receiving the requisition from P.W.25, P.W.24, who was the then Assistant Surgeon of Tuticorin Government Hospital, conducted autopsy on the trunk and head of D.l. He found the following injuries on the head and trunk respectively: HEAD:
Incised wound on the vertex of scalp 10 cm X 10cm X bone depth.
A clear edged cut passing through the upper end of the neck cutting and dividing the soft tissue, trachea, oesophages, vessels body of 2nd vertebra and bisecting the spinal cord.:
TRUNK:
A clear edged cut passing across the upper end of neck dividing all the soft tissue,
trachea, oesophages, vessels, body of second vertebra and bisecting the spinal cord.:
Extreme lacerated injury over back of neck, inter scapular area about 50 cm X 30 cm X 30 cm. manghy all the soft tissue and bone.
Multiple linear incised wound on the left side of back of chest 6 in number cutting all the muscles:
Ex.P.34 is the Post mortem certificate in respect of D.l. He opined that the deceased would appear to have died due to shock and hemorrhage due to multiple injuries to vital organs.
xii) P.W.14 conducted autopsy on the body of Sivakumar, D.2 at 11.00 a.m., during which, he found the following:
Entire body is swollen;
Vesicles present then and there all over the body;
Burnt out ulcer over the right gluteal region 10 cm X 10cm with burnt skin surrounding the ulcer;
Tongue is protruded outside;
scrotum is swollen;
Liquified brain substance is coming out through the occipital region.:
Ex.P. 10 is the post mortem Certificate in respect of D.2. The doctor is of the opinion that the deceased would appear to have died of blast injuries.
xiii) At about 10.50 a.m. P.W.15 conducted autopsy on the body of deceased Manmohan Singh-D3. He found the following injuries:
A oblique linear injury behind the left ear extending from posterior to angle of mandible to parieto occipital junctionl2 cm X1 inch. On exploring the wound, carotid vessels and nerves are damaged and the linear fracture in the parieto occipital region through which the brain coming out.
The whole body is swollen due to decomposition. Burnt out ulcer over the neck and abdomen 7 cm X 7 cm with burn skin surrounding the ulcer. Scattered vesicle are present. Peal of skin present then and there.
Ex.P.12 is the Post Mortem Certificate in respect of D.3. The doctor opined that the deceased would appear to have died of blast injuries.
xiv) During inquest, he examined P.WS 1,2,3,5 to 8 and few more witnesses. Then he examined P.W.9, 20 and 22 and recorded their statements. Then he sent the injured witnesses along with memos to the Government Hospital for treatment.
xv) P.W.16, on receipt of memo, examined one Sundarammal, at about 9.15 p.m. at the Government Hospital and found the following injury:
Lacerated wound on the nostril of size 2 cm X 1 cm.
Ex.P.13 is the accident register. The doctor is of the opinion that the injury is simple in nature.
xvi) On 19.05.96, at about 9. 35 p.m. P.W.14, on receipt of memo, treated Santhi, P.W.2 and found the following injuries:
Lacerated injury blast found in Epigestion 3 cm X 1 cm;
Lacerated injury right side abdomen upper part 2" cm X 1 cm;
Lacerated blast wound in right thigh 2 cm X 1 cm;
lacerated blast wound in left arm 2 cm X 1 cm;
Lacerated blast wound in right ankle and foot 1/2 cm X l/2cm 4 Nos.;
Lacerated blast wound in left angle and foot 1/2 cm X 1/2 cm 5 nos;
Lacerated blast wound in left knee 2 cm X 2 cm."
Ex.P.14 is the Accident Register. The doctor opined that the injuries are simple in nature.
xvii) On the same day, at about 9.40p.m., he also examined Omana, P.W.2, and found the following injuries:
Lacerated wound left sol medial 3 cm X 11/2 cm;
Lacerated blast wound left ankle lateral 2 cm X 1 cm;
Lacerated blast in each right side 2 cm X 1 cm;
Lacerated blast wound in right arm 2 cm
X 1 cm."
Ex.P.15 is the Accident Register. The doctor opined that the injuries are simple in nature.
xviii) On the same day, at about 9.50 p.m., he examined Sivarajan, P.W.4 and found the following injuries:
Lacerated bomb last injury in left leg 3 cm X 1 1/2 cm;
Lacerated blast injury right leg 2 cm X 1 cm;
Lacerated blast lower abdomen 11/2 cm X 1 cm;
Lacerated blast injury left side forehead 1 cm X 1 cm;
Lacerated blast injury in right ankle 2 cm XI cm;
Lacerated blast injury in left inguinal region 1 cm X 1 cm.
Ex.P.16 is the Accident Register. The doctor opined that the injuries are simple in nature.
xix) P.W.21, on receiving the police memo, onl9.05.96 at about 3.20 p.m. ex amined Shanmugam, P.W.5, and found the following injuries:
O/E injury 9th tiny of cresant shaped injury in the back of the neck with upto 2" wide.
Ex.P.31 is the Accident Register. The doctor opined that the injury is simple in nature.
xx) P.W.25, recovered blood stained earth with cement plastering-M.O.5 and sample earth with cement plastering-M.O.4, from the place where the head of D.l was found and blood stained radio stand-M.O.7, under mahazar Ex.P.6 P.W.8 and another witness at 2.00 p.m. on 19.05.96. At 2.15 p.m., he recovered unexplored petrol bomb-M.O. l and broken glass pieces-M.O.2 from the place of occurrence in the presence of the same witnesses under mahazar Ex.P.4. At 2.30 p.m., he also recovered blood stained earth-M.O.3 and sample earth-M.O.4 from the place of occurrence under Mahazar Ex.P.5 in the presence of the same witnesses. Then he arrested A.9, A.10, All and A.13 and sent them for judicial remand. On 27.05.1996 the first accused surrendered before the learned Judicial Magistrate Noll, Kovilpatti. P.W.25, took the custody of the first accused by an order of the Court on 28.05.96. On the same day, at about 7.00a.m. in the presence of P.W.II, the first appellant volunteered a confession, which was reduced into writing. Ex.P.42 is the admissible portion of the said confession. In the said statement, he had disclosed that he would identify the place where he had hidden the country-bombs. In pursuant to the same, he took P.W.25, P.W.II and other witness to his house and took our six country bombs-M.O.16 and the same was recovered under Mahazar Ex.P.43. The said country-bombs were defused.
xxi) On 09.02.97, P.W.26 took up the investigation from P.W.25. He examined all the witnesses who had already examined by P.W.25. Since they repeated the same statements, he did not record their statements separately. He examined few more witnesses including the doctors. He obtained wound certificate pertaining to the injured persons from P.W.I.6, P.W.I.7 and P.W.21. On 29.09.97 he handed over the investigation to P.W.27, since he was transferred.
xxii) P.W.27 took up further investigation. He obtained chemical analysis report and also sanction u/s 7 of the Indian Explosive Substances Act from the District Collector. Ex.P.30 is the sanction Order. On completing investigation, he laid charge sheet against all the 17 accused under Sections 147,148, 449, 323, 327 and 3023 r/w 149I.P.C. and Sections 3, 4 and 5 of the Indian Explosive Substances Act.
Before the charges were framed, two accused included in the final report by name, Sivaraj and Kalaimani died and therefore, the lower Court framed charges against 15 accused as detailed at the beginning of this judgment. Since all the accused denied the charges, they were put on trial.
On the side of the prosecution, 27 witnesses were examined, 43 documents were exhibited and 11 material objects were marked on the side of the prosecution.
When the accused were questioned u/s 313 Cr. P.C in respect of the incriminating evidences against them, they denied the same as false. They have not chosen either to examine any witness or to mark any document on their side.
Having considered the materials available on record, as extracted above the trial Court has convicted these appellants, who are the accused Nos. l, 2, 5, 6, 14 and 15 alone under various penal provisions as detailed supra. The said finding of the lower Court as against these appellants, is under challenge in this appeal.
The learned counsel appearing for the appellants would submit that the first information report in this case is highly doubtful. Ex.P.l would not have been come into existence as it is stated by the prosecution. He would further submit that Ex.P.l should have been prepared only on 20.05.96 after due deliberations. He would further add that the assailants were not known to anybody and because of the motive, these assailants have been falsely implicated. The learned counsel would further point out the contradictions in the evidence of eye witnesses and submit that those contradictions are material in nature, which would destroy the entire case of the prosecution. He would further add that the evidences of eye witnesses are not in consonance at all with the individual charges framed against the accused. Though P.Ws 2,3 and 4 are eye witnesses, their evidences cannot be given any weightage of, as they are un-trustworthy.
He would further submit that though P.Ws 5 and 7 have been examined to speak about their witnessing the occurrence, P.W.5, turned hostile and the evidence of P.W.7 cannot be believed since his very presence is highly doubtful. The learned counsel would further submit that though the explanation offered by P.W.7 for his presence at the crucial point of time of occurrence is that he was engaged in white washing the house of the deceased, the police officer who investigated the case did not find any material used for white washing the house at the place of occurrence. This, according to the learned counsel, improvableness the presence of P.W.7 at the time of occurrence. In conclusion, he would submit that the prosecution has not proved the case beyond reasonable doubts and so the accused are entitled for acquittal.
Per contra, the learned Additional Public Prosecutor would submit that there are no reasons to disbelieve the presence of P.W.7. P.W.I has spoken about the occurrence in a vivid manner. He would further submit that immediately after the occurrence he had gone to the V.A.0 with a complaint and the same has been again taken by him to the Police. Though there are certain infirmities in the same, considering the nature of the occurrence, the learned Additional Public Prosecutor would submit that those infirmities are not material so as to discard the entire case of the prosecution. The learned Additional Public Prosecutor would further submit that the reasons stated by the learned counsel for the appellants to discard the evidence of eye witnesses are not acceptable. Though there are certain contradictions in their evidences, they are very minor, which do not in any way affect the case of the prosecution. The learned Additional Public Prosecutor would further submit that though the delay in forwarding the first information report to the Court has not been explained by the prosecution, that by itself would not be a ground to reject the entire case of the prosecution. He would conclude his argument by submitting that the trial courts findings are well founded and the same does not require any interference.
We have considered the rival contentions and also very carefully perused the records.
At the outset, it is to be seen that it is a triple murder case, where two of the deceased are children of tender age, who have been killed in a cruel and gruesome manner, mercilessly by the assailants. No doubt, the assailants are to be found out, tried and punished stringently in accordance with law. But, at the same time, it is the duty of this Court to see whether the appellants are perpetrators of the crime along with others. For that we have to now analyse the evidence adduced by the prosecution from various angles to satisfy ourselves regarding the sustainability of the findings of the lower Court.
The first and foremost point raised by the learned counsel for the appellants is that the first information report in this case is highly doubtful and Ex.P.l cannot be the earliest information. The learned counsel would point out that according to the prosecution, the occurrence took place at 10.30 p.m. on 18.05.96. Admittedly, the distance between the police station and the place of occurrence is hardly 10 Kilometers. P.W.I, who claims to have witnessed the occurrence has stated that immediately after the occurrence, he proceeded to the office of P.W.8, with a written complaint. According to him, Ex.P.l is the said complaint. P.W.8, would state in his evidence that on 19.05.98 at about 1.00 a.m., when he was at his office, P.W.I appeared before him with a written complaint. He would further said that he made an endorsement immediately and handed over the same to P.W.I, who in turn handed over the same to the police. Here, P.W.I has not given any reason as to why he had gone to the office of P.W.8, the Village Administrative Officer, to prefer the complaint instead of going to the police station. That apart, P.W.8, who is a responsible officer, who had received the complaint from P.W.I had not chosen to forward the said complaint through his menial to the police station. It is curious that he had given the complaint again to P.W.I to be handed over to the police. Regarding this strange conduct of P.W.8 also, there is no explanation whatsoever, offered by the prosecution. According to P.W.I as well as P.W.8, when Ex.P.l was handed over to P.W.8, it was 1.00 a.m. on 19.05.96. We could see in Ex.P.l that there is an endorsement made by P.W.8 wherein he has mentioned the time as 1.00 a.m. But in Ex.P.l, above the signature of P.W.I, we could see that P.W.I has stated as follows:
The above statement would go to show that when the complaint was given at the police station, the time was 2.30 a.m. on 19.05.96. If it is true that Ex.P.l was really handed over to V.A.O. at 1.00 O'' Clock, we are unable to understand as to how such a statement that P.W.I had come to the police station at 2.30 a.m. would be found in the complaint above his signature. The above statement forms part of the narration of events in Ex.P.l. If such an endorsement had been made after the endorsement made by V.A.O, we can hold that the infirmity has been explained. But in this case, there is no plausible explanation offered by the prosecution as to how this infirmity could occur in Ex.P.l in respect of the time of Ex.P.l.
The learned counsel would further point out that P.W.I has stated that he went to a village by name, Kothali where he handed over Ex.P.l to P.W.8. In Ex.P.l, we could see that P.W.I has stated that he had gone to Kothali and gave the complaint. But P.W.8, is the Village Administrative Officer only for Kalapaipatti village. Though in chief examination, he has not stated as to where he was at the time when P.W.I handed over Ex.P.l to him, we could see from the endorsement made by him in Ex.P.l that he was at Kalapaipatti village. The learned Additional Public Prosecutor is not in a position to explain this endorsement also.
Though it is the positive case of P.W.I that P.W.I himself had gone to the police station and handed over Ex.P.l, according to P.W.25, the investigating officer, who registered the case on 19.05.96 at 2.30 a.m., the complaint was brought to the police station not by P.W.I but by the village menial of P.W.8. Had it been true that Ex.P.l was really handed over at 2.30 a.m. by P.W.I there is hardly any reason for P.W.25 to give a different version that Ex.P.l was given only by the menial and not by P.W.I. The prosecution is not able to offer any explanation in this regard also.
Above all, the contention of the learned counsel for the appellants that the delay in forwarding the first information report to the Court is vital and the same collapses the entire case of the prosecution, has got every force. Though it is stated that the first information report was registered at 2.30 a.m., on 19.05.96, the first information report has reached the Court only on 20.05.96 at about 8.00 a.m. with a delay of about 29.30 hours. We have carefully gone through the evidence of P.W.25 excepting there would be some explanation regarding the delay. Though he has been cross examined on this aspect that the first information report and Ex.P.l have reached the Court only at 8.00 a.m. on 20.05.96, P.W.25 had no explanation to offer.
Ex.P.35 is the first information report. But it does not contain the narration of occurrence as found in Ex.P.l. It has been pointed out by the defence that in Ex.P.35 there is a statement that the narration of occurrence has been incorporated in a separate sheet attached to first information report but there is no such separate sheet found along with Ex. P.35. P.W. 25 has offered an explanation that the separate sheet mentioned in Ex. P.35 is only Ex.P.l. But, this explanation, in our considered opinion, is only an after thought.
At this juncture, it is necessary to refer to Section 154 Cr. P.C. which reads as follows:
Information in cognizable cases: (1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.
A close reading of Section 154 Cr. P.C. would go to show that the substance of the information shall be entered in a book kept as specified by the State Government. In this case, as far as the State of Tamil Nadu is concerned, the book prescribed by the State Government is the one known as First Information Report book. It is mandatory clear that u/s 154 Cr. P.C. the officer who registers the case shall enter the substance of the information in the First Information Report book. In this case, P.W.25, has not done so. The explanation offered by P.W.25 is also not acceptable. This is also yet another circumstance, which creates doubt in respect of the origin of the first information report.
The evidence of the Village Administrative Officer, P.W.8 is that as soon as the occurrence took place, he informed the Police about the same and immediately thereafter the police came to the scene of occurrence. The distance between the Police Station and the place of occurrence is admittedly, 10 kilometers. If that be so, by all means, the police would have arrived at the scene of occurrence within at least one hour from the time of occurrence.(i.e) around 11.30 p.m. But we are not able to convince ourselves as to why the complaint was not obtained on the spot immediately on the arrival of the police so as to avoid any further delay, though admittedly the injured persons were very much available at the scene of occurrence. Thus the earliest information, which brought the police immediately after the occurrence has also not seen the light of the day. Further, according to P.W.25, the complaint was handed over to him by the village menial. But P.W.8, during cross examination would state that when P.W.I came to him with Ex.P.l complaint, his village assistant was not at all present there. P.W.I would also state during cross examination that the village menial did not accompany him at all to the police station. This also further aggravates the doubt created in respect of the genuineness of Ex.P.l.
In the case of Marudanal Augusti VS State of Kerala (1980 S C C (Cri.) 985), the Hon''ble Supreme Court while dealing with time of lodging of First Information Report and forwarding the same to the Court, has held as follows:
The most serious infirmity which appears in the case is that although the FIR was lodged on the midnight of June 23/24, 1971, it was dispatched to the sub Magistrate and received by him at 5.30 a.m. on June 25, 1971, that is to say, there was a delay of as many as 29 hours in the receipt of the FIR 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 FIR was dispatched through express delivery. Indeed, if that was so, the FIR should have reached the Magistrate much earlier. That apart, there are intrinsic circumstances which throw serious doubt on the prosecution case. According to the version given by the informant, he had sustained the injury on his fingers while he was trying to snatch the knife from the appellant. The FIR no doubt mentions that the informant received injury on his fingers and despite this fact the informant went to the doctor not on June 24,1971 but on June 25,1971 at 9.30 a.m. Although the informant claims that he had gone to the doctor on June 24, 1971 but the doctor P.W.13 categorically states that P.W.I had come to him with injuries only on June 25, 1971 at 9.30 a.m. The doctor further testifies that the injury was simple one and fresh. This, therefore, completely knocks the bottom out of the prosecution case regarding the circumstances in which the FIR was lodged. If the injury was fresh, then it could not have been sustained during the occurrence and, hence, the story put forward by the informant becomes extremely suspicious. No explanation for any of these doubtful circumstances has been given by the prosecution. There can be no doubt that in these tell-tale circumstances the Sessions Judge was fully justified in entertaining a serious doubt about the truth of the prosecution case. In view of all these facts the view taken by him was, doubtless, reasonably possible. The High Court, however, relied on another aspect of the matter, viz., that as there was no animus between P.Ws 1 to 6 and the accused, there was no reason to disbelieve them. The High Court seems to have overlooked the fact that the entire fabric of the prosecution case would collapse if the FIR is held to be fabricated or brought into existence long after the occurrence and any number of witnesses could be added without there being anything to check the authenticity of their evidence.
Applying the above said principles laid down by the Hon''ble Supreme Court, we are impelled to hold that Ex.Pl, which is said to be the first information in this case, cannot be believed at all, for the reasons stated herein above.
Exs.P.9, P.11, and P.32 are the requisition letters given by the investigating officer to the doctor on 19.05.96 to conduct post mortem examination on the dead bodies of D.l to D.3. These three documents had reached the hands of the doctor on 19.05.96 itself. A perusal of these documents would show that there are only ten persons who have been named as assailants of all the three deceased and few more unnamed persons. Had it been true that Ex.P.l which contains the names of 17 persons was prepared on 19.05.96 by P.W.I himself and the case was registered at 2.30 p.m. itself, naturally one would expect that in these three letters, which came into being after the inquest, to contain the names of all the 17 persons. But no explanation is forthcoming as to how the names of seven persons have been omitted in these records. This would clearly go to establish that when these three letters were given by the investigating officer, he had only 10 named persons arrayed as accused. The first information report which contains 17 names, would have, therefore, come into existence only long after the inquest. In the inquest reports, EXs.P.38 to 41 also, the names of only 10 persons do find place as named accused. All these circumstances would, in our considered opinion, impel us to come to the conclusion that Ex.P.l is not the earliest information and it is nothing but a document created later on with due deliberations and consultations.
As held by the Hon''ble Supreme Court in the judgment cited supra, the entire prosecution case would collapse if the first information reports held to be fabricated or brought into existence long after the occurrence and any number of witnesses could be added without there being anything to check the authenticity of their evidence. Thus, in our considered opinion, Ex.P.l gives room for enormous suspicion and we have no hesitation to hold that the same had been brought into existence long after the occurrence, with consultations, which collapses the entire case of the prosecution.
Though P.Ws 1 to 7 claim to be the eye witnesses, P.W.5 and 6 have turned hostile. There is some force in the argument of the learned counsel for the appellants that it is quite normal in the villages in this part of the State that people use to go to sleep around 8.30 p.m. to 9.00 p.m. Since the occurrence had taken place at 10.30 p.m., according to the learned counsel for the appellants, all the injured would have been sleeping. But according to the prosecution case, since the house was under white washing, the deceased, P.W.I, P.Ws.6 and, 7 were all not sleeping at the crucial time. The learned counsel for the defence would submit that there would not have been any light available for the injured witnesses to identify the assailants. But according to the prosecution, since white washing work was going on, the lights were on at the crucial time. Whether the lights are on and whether the people were sleeping at the crucial time depends upon the truth of the statement that the house was being white washed at that time. As pointed out by the learned counsel for the appellants, had it been true that the house was so white washed, there would have been some symptoms for the same. P.W.7 has stated that the materials used for white washing the house such as lime water, bucket and other materials were available there and when the police came there, they saw them. But, in the observation mahazar as well as in the sketch, we are not able to see any mention about the white washing and also about the availability of the materials used for the same. This also creates doubt in the case of the prosecution that the inured were all awakening and the lights were on.
Though it is the positive case of the prosecution through Ex.P.l that the assailants were totally 22, the investigating officer has laid charge sheet only against 17 accused. It is not as if the names of the rest of the assailants could not be ascertained. But, in his evidence, the investigating officer has stated that except these 17 persons none-else participated in the occurrence. This shows that P.W.I and his party were bent upon to implicate as many persons as possible as accused. Even though 17 accused would stand charged by the respondent police, the lower Court has disbelieved the evidence of the eye witnesses in respect of the accused 3, 4, and 7 to 13. The lower Court has convicted these appellants because there is some consistency between the evidences of eye witnesses in respect of the part played by these appellants. But, the said approach of the trial Court cannot be said to be correct. It is also to be seen that the State has not preferred any appeal against the acquittal of the rest of the accused. Thus, it is clear that the prosecution witnesses are not fully believable.
In the backdrop that the first information report has been fabricated and the prosecution witnesses though injured could not be believed in full, it is very difficult to separate the grains from the chaff so as to find these appellants alone guilty. A perusal of the evidences of the prosecution witnesses would further go to show that there is no consistency in their evidence about the presence of these accused and the overt acts attributed to them. Though P.W.2 to 5 are injured witnesses and though P.W.I and P.W.7 claim to be eye witnesses, we are unable to persuade ourselves to hold that they are trustworthy in the matter of identification of the assailants.
One more aspect which requires consideration is the delay in sending the injured persons to the hospital. Admittedly, all the injured persons have gone to the hospital around 9.30 p.m. on 19.05.96. Absolutely, there is no explanation what so ever for this delay. Curiously, no opinion has been obtained from the doctor by the prosecution as to whether these injuries could have been caused in this occurrence or not.
Per contra, in their statements, the injured witnesses have told the doctor that they sustained these injuries when they were attacked by a mob of people at about 9.00 p.m. on 18.05.96. Though it is stated that all the injured persons were sent to the hospital, as soon as the registration of first information report, we do not find any convincing explanation from the prosecution as to why they were taken to the hospital by the police only around 9.30 p.m. on 19.05.96. Had it been true that the assailants were known, the injured persons would have told the doctor that they were attacked by a group of known persons. But, in their statements to the doctor, uniformly all the injured have said that they were attacked by a mob. This would probabilises the theory of defence that assailants were not known even on 19.05.96 till 9.30 p.m. The learned counsel for the appellant would submit that on the next day, i.e.20.05.96, after a lot of deliberations the first information report would have been prepared by arraying all these 17 persons as accused. Thus the argument of the learned counsel for the appellants is more acceptable in view of the statements made by the injured to the doctor as narrated above.
Initially, the investigation was done by P.W.25, the local police officer. It appears that there was some dis-satisfaction on the said investigation and therefore, the same was transferred to the special branch viz., C.B.C.I.D and P.W.27 had taken up the investigation on 30.12.2000 but he also could not make any further improvement in the case of the prosecution.
The learned Additional Public Prosecutor would submit that A. 14 was arrested on 27.05.96 by P.W.25 in the presence of P.W.I 1 and another witness and on such arrest, he volunteered a confession and in pursuant to the same, he produced six country bombs. But, P.W. I has turned hostile and he has not supported the case of the prosecution. However, the prosecution has not offered any explanation as to why the other witnesses, in whose presence the arrest and the recovery of country bombs, were made was not examined. In view of the facts and circumstances of the case, we are not prepared to believe the evidence of P.W.25 alone in respect of the confession said to have been made by A. 14 and the alleged recovery of the country bombs at his instance. Assuming that the recovery of the country bombs from the possession of A. 14 is true, that would not go to establish that he participated in the killing of the deceased. For, possession of the explosives when he was arrested, there was no charge against A.14 and so, the alleged recovery of country bombs at the instance of A.14 does not have any significance at all.
For the reasons stated above, we are impelled to hold that the conviction and sentence imposed by the lower court against these appellants is not sustainable. Before parting with the case, we would like to state that the investigation in this case has not been done properly at all. We are not only shocked but also pained to see that there is inordinate delay of nearly about 29 1/2 hours in forwarding the first information report to the Court and the investigating officer has not come forward with any explanation whatsoever. Though three persons were killed in an atrocious and shocking manner and the act of the assailants is gruesome, heinous and cold blooded, me investigating officer P.W.25 had not discharged his duty properly by promptly registering the case and forwarding the same to the Court. Though the occurrence would have created a lot of sensation in that area and though three valuable lives were lost, our hands are tied that we are 4 not able to find out the real culprits so as to impose proper punishment on them. In these circumstances, we are forced to acquit these accused for want of legally acceptable evidence pointing towards the guilt.
In the result, the appeals are allowed. The conviction and sentence imposed by the lower court on the accused/appellants by the judgment dated 14.12.2005 rendered in S.C. No. 379 of 1999 is set aside. The appellants are acquitted of all the charges. The appellants are directed to be set free forthwith if their continued incarceration is not required in connection with some other case.