- (1.) THE Criminal Appeal arises out of the judgment dated 4.12.2002 in S.C.No.141 of 2002 on the file of the Principal Sessions Court, Vellore, whereby, the appellant-accused was convicted for the offence under Section 304 (Part 1) IPC and sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.1,000/-, in default, to undergo simple imprisonment for six months. THE trial Court acquitted the accused of the charge under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act.
(2.) THE case of the prosecution is as follows: (a) On 13.11.2001 at about 1.45 p.m., Sathya, since deceased, went to the 'beeda' shop of the accused. THEre was some quarrel between the accused and the deceased. THE deceased said, @cd filia ,yyhky gddptpLntd@/ On hearing these words, the accused developed grudge against the deceased. THEre was a wordy altercation between them. THE accused intentionally took out a knife from his shop and assaulted the deceased on his chin and left hand and when the deceased started running away from the place towards the telephone post, the accused assaulted him by inflicting various injuries, which was stated to have been witnessed by P.Ws.1 to 3. THE deceased died on the road. On hearing the shouting, the people started gathering and the Police arrived in the scene of crime. (b) P.W.4 is the wife of the deceased. P.W.12 Deputy Superintendent of Police, Gudiyatham Sub-Division, made 'bandobust' to the scene of occurrence, since the traffic arrangement was paralysed on account of law and order problem. (c) P.W.11 Inspector of Police reached the scene of occurrence on receipt of the message. He received the complaint Ex.P-1 from P.W.1 and registered a case in Cr.No.502 of 2001 for the offences under Section 302 IPC read with Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. He prepared printed FIR Ex.P-25. He despatched the express report/FIR to the concerned Court. Subsequently, he handed over the same to P.W.12 DSP. (d) P.W.12 DSP took up the matter for investigation. Since the case has been registered for the offence under Section 3(2)(v) of the S.C. and S.T. (Prevention of Atrocities) Act, he went to the place of occurrence and prepared observation mahazar Ex.P-20 in the presence of P.W.10 Village Administrative Officer and he also drew rough sketch Ex.P-26. He seized the material objects M.Os.5 to 7 under mahazar Ex.P-21. He conducted inquest in the presence of the witnesses and panchayatdars. THE inquest report is Ex.P-27. (e) P.W.12 DSP took photographs through P.W.5. THE photographs were marked as Ex.P-2 series and the negatives were marked as Ex.P-3 series. (f) On 13.11.2001 at about 10 p.m., P.W.12 DSP arrested the accused. He gave confession and the admissible portion was marked as Ex.P-22. In pursuance of the same, M.Os.9 and 8 were seized under Exs.P-23 and P-24 mahazars respectively. P.W.12 DSP sent the accused for judicial custody. (g) After arrest, since the accused has sustained injury, he sent him for treatment with a medical memo. P.W.6 Dr.Thirugnanam examined the accused and issued Ex.P-4 accident register, in which the following injury was noted: "1. An abrasion right hand of 2 cm x 1 cm". (h) After conducting inquest, P.W.12 DSP gave a requisition in Ex.P-5 for conducting post-mortem. P.W.9 Head Constable handed over the dead body of the deceased to P.W.7 Dr.Premakumari, who received Ex.P-5 requisition and conducted autopsy. Ex.P-6 is the post-mortem certificate, in which the following injuries are noted: "Appearances found at the post-mortem A body of a moderately nourished male lies on its back, surrounded by mortuary, GH, Gudiyattam. Body identified by in-charge police constable and do tally with the police report. External injuries: (1) Incised wound measuring about 1cm x 1/2 cm x 1 cm on the chin. (2) Incised wound about 5 cm x 1/2 cm x 1 cm on the left dorsum of the hand. (3) Incised wound measuring about 4 cm x 2 cm x 7 cm in depth on the right side of the chest at the level of the medial one third of the clavicle extending above the clavicle at the lower part of the neck and below the clavicle at the upper part of the chest. Direction of the wound is downwards and medial. (4) Blood collected from the wound No.3 about 10 ml of the altered dark coloured blood collected and sent for analysis. (5) Incised wound measuring about 4 cm x 2 cm x 5 cm on the right side of the abdomen-above the umbilicus in the right hypochondrial region. Direction of the wound is upwards and medial. Internal appearance: On opening the abdomen and thorax wound No.5, seen extending in the right side of thorax between 7th and 8th inter costal ribs anteriorly. Wound No.3 seen extending above the clavicle in the thoracic cavity up to the upper lope of right lung. Bleeding present. Fracture of the right 12th costal rib at its medical 3 cm anteriorly is seen. Heart: 250 gms. Lungs: right lung-350 gms. Left lung-300 gms. A lacerated injury about 6 cm x 4 cm x 2 cm seen on the upper lobe of right lung. Hyoid bone intact. Liver: 1000 gms. An incised wound measuring about 6 cm x 1 cm x 7 cm depth seen in the upper surface of the right lobe of the liver bleeding present. Stomach: contains 300 gms of yellowish coloured partly digested food particles. Spleen: 75 gms. Each kidney: 100 gms. Intestines are normal. Bladder empty. On opening of the skull: Normal. No fracture of skull bones. Brain: 1100 gms. THE following viscera are sent for chemical analysis: (1) Stomach with contains (2) Intestine with contains (3) Sample of liver (4) Kidney (5) Preservatives (6) About 10 ml of altered blood from the wound No.3. Post mortem concluded on 14.11.2001 at 12.30p.m. THE deceased would appear to have died 21 to 23 hours prior to post mortem. Opinion-reserved pending chemical analysis report." (i) After post-mortem, P.W.9 handed over the dead body of the deceased to the relatives and the material objects belonging to the deceased, namely M.Os.1 to 4 were given to P.W.12 DSP, who received the same under Form 95 Ex.P-19. (j) As per the requisition of the investigating officer, the Court gave Exs.P-11 to P-14 letters to the Forensic Sciences Laboratory for sending the material objects for chemical examination. Ex.P-15 is the toxicologist report. Ex.P-16 is the biologist report. Exs.P-17 and P-18 are the serologist reports. On the basis of the above said reports, the Doctor has given a final report Ex.P-7, in which it is stated as follows: "Final report, 24.12.2001: (1) Report from Forensic Sciences Department-Regional Forensic Science Laboratory, Vellore 4. TOX.H.656/2001 dt.26.11.2001. (1) Stomach with contents. (2) Intestines with contents. (3) Liver (4) Kidney (5) articles were examined but poison was not detected in any of them. Internal Appearance of the body: (1) Lungs: A lacerated injury about 6 cm x 4 cm x 2 cm. seen on the upper lobe of the right lung. (2) Liver: An incised wound measuring about 6 cm x 1 cm x 7 cm. seen in the upper surface of the right lobe of the liver. Bleeding present. Opinion as to cause of death: THE deceased would appear to have died 21 to 23 hours prior to post mortem due to shock and haemorrhage due to injury to the vital organs like lungs and liver." k) P.W.12 DSP examined the witnesses and recorded the statement of witnesses. From the Revenue authorities, he also obtained the Community Certificates of the deceased and the accused in Exs.P-28 and 29 respectively. (l) P.W.12 DSP concluded the investigation and filed the charge sheet against the accused for the offences under Section 302 IPC and Section 3(2)(v) of the S.C. and S.T. (Prevention of Atrocities) Act. The trial Court, after following the formalities, framed necessary charges against the accused, to which, the accused pleaded not guilty. After examining the witnesses, the trial Court posed questions under Section 313 Cr.P.C. about the incriminating evidence and the accused denied the same. During the course of trial, on the side of the prosecution, P.Ws.1 to 12 were examined, Exs.P-1 to P-30 were marked and M.Os.1 to 9 were produced. On the side of defence, D.W.1 Dr.Thirugnanam was examined and through him, Ex.D-1 accident register copy of the brother of the accused and Ex.D-2 accident register copy of the father of the accused were marked. The trial Court, after considering the oral and documentary evidence, acquitted the accused of the charge under Section 3(2)(v) of the S.C. and S.T. (Prevention of Atrocities) Act and convicted him for the offence under Section 304 (Part 1) IPC and sentenced him as indicated above. Challenging the conviction and sentence passed by the trial Court, learned counsel for the appellant-accused would submit that he is disputing the genuineness of Ex.P-1 complaint. The presence of P.Ws.1 to 3, the eye-witnesses, is doubtful. The arrest and recovery are doubtful. No independent witness has been examined and hence, the non-examination of independent and natural witness is fatal to the case of the prosecution. The complaint has been received after commencement of the investigation and so, the complaint and the FIR cannot be treated as solemn documents and they are only statements under Section 161 Cr.P.C. There is no motive for the accused to commit the offence. He further submitted that there is a delay in preferring the complaint and despatching the same to Court. To substantiate the above contentions, learned counsel relied upon various decisions of Courts. Since the trial Court has not considered the above aspects in proper perspective, it came to the conclusion that the accused is guilty of the offence under Section 304 (Part-1) IPC. Learned counsel prayed for acquittal of the accused and for setting aside the conviction and sentence.
(3.) PER contra, learned Government Advocate (Crl. Side) appearing for the respondent-Police would contend that the alleged occurrence took place on 13.11.2001 at 1.45 p.m. Ex.P-1 complaint has been received by P.W.11 Inspector of Police at 4 p.m. on that day and so, there is no delay. The delay has been explained by P.Ws.1 to 3 and P.W.11 Inspector of Police. Learned Government Advocate further submitted that since the case is based on the evidence of the eye-witnesses, and P.Ws.1 to 3 are the eye-witnesses, even though they belong to the community of the deceased, but they are not relatives. So, there is no need to examine any other independent witnesses. It is not affecting the case of the prosecution. He further submitted that as soon as the case has been registered, the complaint/FIR was despatched, which was received by the concerned Court at 12 mid-night and since the deceased belong to SC/ST community, the law and order problem has arisen, and hence, the Police have to pacify the matter and so, the delay has been properly explained. The trial Court has considered all the aspects and came to the correct conclusion. The judgment of the trial Court does not suffer from any infirmity. To substantiate his submissions, he relied upon various decisions of Courts. He prayed for dismissal of the appeal. This Court has to decide as to whether the delay in preferring the complaint and despatching the FIR to the Court, vitiates the entire case of the prosecution. Before deciding the same, we have to consider as to whether the evidence of P.Ws.1 to 3, the alleged eye-witnesses, is reliable or not.;