Arijit Pasayat, J. - (1.) Challenge in these appeals is to the judgment of a Division Bench of the Madras High Court. Two persons have filed the appeal and the appellant Ravi was A-1 in Criminal Appeal No. 22 of 2007, and Ravi, appellant in Criminal Appeal No. 23 of 2007 was A3. Ten persons had faced trial before the learned Principal Sessions Judge, Kanyakumari. During the pendency of trial one of them i.e. A-10 died and the charge against him had abated. A-5 to A-9 were acquitted by the trial Court and the remaining four were appellants before the High Court. A1 to A4 were convicted for offence punishable under Section 302 of Indian Penal Code, 1860 (in short the 'IPC').
(2.) Prosecution version in a nutshell are as follows : There was previous enmity between the elder brother of Albert Walter (hereinafter referred to as the deceased) i.e. Robert Victor Singh (P.W. 1) and A1 and one Sasi, residing at R.C. Street, Monday market. There was a case that, A1 had hacked Sasiat his leg. In the murder case related to one Kumar, deceased Albert Walter was implicated as an accused. On 24.12.1991, when P.W.1 and deceased were going near Neyyoor Hospital, A1 to A4 chased the deceased. On 7-1-1992, when P.W. 1, deceased and one Ranjith Singh were coming towards the south from Neyyoor Mission Hospital, opposite to the Primary School, at around 7 or 7.15 in the night, A1 to A4 armed with choppers in their hands chased deceased who ran from north towards the south. Near the house of one Shahul Hameed, A1 to A4 caught hold of deceased. A1 hacked him at his neck, jaw and right cheek. A-2 hacked deceased at his right hand and back. A3 hacked him on his head 3 times with a chopper. A4 hacked him on his abdomen. Consequent to the injuries inflicted by A1 to A4, he died at the very place of occurrence. The occurrence was witnessed by P.W. 1, Ranjith Guna Singh (PW 2) and Jagdeesh Chandran (PW3) in the light shed by the electric light near the place of occurrence. P.W.1, at around 8.30 in the night, went to the Police Station, Eraniel and lodged a written complaint Ex.P.1 signed by him regarding the occurrence. At the time of occurrence Albert Walter was wearing a shirt M.O.1 and a lungi M.O.2. On 7-1-1992, at around 8.30 in the night, when the Sub- Inspector P.W. 13 was on duty in charge of the station, as per the complaint Ex.P-1 given by P.W. 1, a case was registered in Crime No. 10/92 u/S. 302 IPC. The First Information Report and the complaint statement were sent to the Court. The copies of these were sent to the higher officials. When P.W. 17 was in-charge as the Circle Inspector, Eraniel on 7-1-1992, at 2100 hrs., he received the FIR in this case and took up the case for investigation. He visited the place of occurrence at 21.15 hrs and observing it in the presence of the witnesses prepared the observation mahazar Ex.P.2. Shelvasdas (P.W. 6) was present along with him and attested as a witness to Ex. P.2. P.W. 17 prepared the Rough sketch Ex-P.20. He made arrangements for photographing the place of occurrence. He conducted inquest in the presence of the Panchayatdars. The Inquest Report prepared by him is Ex.P.21. During the inquest, P.W. 17 enquired the witnesses. He entrusted the corpse to Selvamani (P.W. 12) Constable with the requisition of conducting post-mortem, Ex.P.14 to the Medical Officer, Colachel. From the place of occurrence, the Inspector P.W.17 seized M.O.3 blood-stained earth, M.O. 4 sample earth and prepared the mahazar Ex-P.3 in the presence of P.W.6 who attested it as a witness. As per the requisition of the Police Department, P.W. 14 took photographs of the place of occurrence. The photos taken by him are M.O.6 series and their negatives M.O.7 series. As per the orders of the Inspector, on 8-1-1992, P.W. 12 took the corpse of Albert Walter under his responsibility, then after the inquest was over, he took the corpse to the doctor and entrusted the same for post-mortem examination. After the postmortem was over, he received the corpse back and handed over the same to its relatives. On 8-1-1992 as per the requisition of the Inspector PW-17 through PW-12, the Doctor (PW-10) conducted the post mortem examination of the corpse at 12 noon. He noticed rigor mortis spread over the corpse and found the following injuries on the corpse. 1. An incised injury measuring 10 x 5 x 4 cm on the right cheek extending from the mouth upto the backside of the head. 2. An incised injury measuring 4 x 3 x 3 cms noticed on the lower jaw. 3. An incised injury measuring 10 x 5 x 5 cm at the lower jaw beneath the first injury. 4. An incised injury measuring 10 x 10 x 5 cms on the left side of the neck extending upto the back side of the back. Its edges, muscles, blood-vessels, throat, wind-pipe had all been cut. The neck was found hanging. 5. An incised injury on the right ear. The ear was found cut into two. 6. An injury measuring 3 x 2 x 1 cm seen on the right side of the back and below the shoulders. The right humerus bone was fractured. 7. An abrasion measuring 2 x 1 cm on the right shoulder. 8. An incised injury measuring 8 x 4 x 2 cm on the right upper arm. 9. An incised injury measuring 5 x 3 x 2 cm on the pelvic region. 10-11. An incised injury measuring 15 x 3 x 2 cm in the middle part of the head, the bone was cut into two. 12. An incised injury measuring 7 x 3 x 2 cm on the right side of the parietal region of the head; the bone was seen cut. 13. An incised injury measuring 15 x 5 x 2 cm upto the left cheek of the temporal region and extending on the head. P.W. 10 doctor issued the Post-mortem report (Ex.P. 15). The opinion given by the doctor was that the injuries 1 to 13 could be inflicted by choppers; that, injuries 1 to 4 are grievous injuries; that, death would have occurred between 17 hrs to 20 hrs. prior to the post-mortem examination and that, death could have occurred because of the injuries sustained and haemorrhage. Since it became evident on investigation that offence had been committed u/S. 120-B, IPC, he has incorporated section 120-B, IPC in the case and sent the report to the court of the Judicial Magistrate. On 14-1-1992 P.W.17 arrested A1 to A4 below the Villukkuvi over bridge. At that time, he recorded the confessional statement given by A1, in the presence of the witnesses. The admissible portion of the confessional statement is Ex.P-22. On the basis of the confessional statement, A1 took P.W. 17 and other witnesses to the southern bund of Pandara tank and from a hole there, took out a sickle and from the tank 3 sickles and presented them. These are Ex. P.8 series. P.W. 17 seized them under Ex.P.23 Mahazar in the presence of the witnesses. At the Eranial Junction, P.W. 17 seized the Car No. T. N. 72 - 0156, M.O.9 as identified by A1 in the presence of witnesses under Ex. P. 24 mahazar prepared by him. At Monday market, auto stand, he seized the Auto No. T.N.74-4461 (M.O. 5) and prepared the mahazar Ex.P.25. At Kanyakumari Taxi Stand, he seized the Car in No. T. N. 69 Z 0255, as pointed out by A1, from one Selvam under Ex.P.26 mahazar. Then, he brought the accused and the material objects to the Police Station and thereafter sent them to judicial custody. On 15-1-1992 at around 6'O clock in morning he arrested the accused A8 and A9 at Eranial, brought them to the Police Station and then sent them to judicial custody. He showed the sickles seized on 16-1-1992 to the Medical Officer and made enquiries from him. On 17-1-1992 he seized the registers from Hotel Sri Ram on Tuticorin - Ettayapuram Road. He sent a requisition to the Judicial Magistrate to record the statements of the witnesses Kaba, Selvam and Ayyappan under Section 164 of the Code of Criminal Procedure, 1973 (in short the 'Code'). He sent a requisition Ex. P.27 to the Court, to send the case properties for chemical examination. The objects were sent for chemical examination along with the letter of the Judicial Magistrate. The copy of the Judicial Magistrate's letter is Ex. P.28. After the chemical examination, the Chemical Examination Report Ex-P.29 and the Serology Report Ex.P.30 were received. When P.W.16 was working as Judicial Magistrate, Padmanabhapuram, as per the requisition of the Inspector, he recorded the statements of the witnesses Kaba, Selvam and Ayyappan on 27-1-1992 under Section 164 of Code. Ex.P.17 is the statement of Ayyappan; Ex.P. 18, is the statement of Selvam and Ex.P. 19 is the statement of Kaba. Investigation was undertaken and on completion thereof, a charge-sheet was filed. Accused persons pleaded innocence and false implication. During trial some of the witnesses resiled from their statements made during investigation. According to the trial Court, the evidence of PW-1 was sufficient to fasten the guilt on the accused. The stand that on the basis of solitary witness's evidence the prosecution version should not be accepted, did not find favour with the trial Court who directed conviction for offence punishable under Section 302, IPC.
(3.) Before the High Court the stand about the sustainability of the evidence of PW-1 was reiterated. It was highlighted that he was brother of the deceased and therefore was interested and a partisan witness. The High Court did not accept that plea and found the evidence of PW-1 to be clear and cogent and dismissed the appeal.;