{"id":14821,"date":"2003-08-13T00:00:00","date_gmt":"2003-08-12T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/gopal-vs-state-rep-by-the-on-13-august-2003"},"modified":"2017-03-27T01:28:14","modified_gmt":"2017-03-26T19:58:14","slug":"gopal-vs-state-rep-by-the-on-13-august-2003","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/gopal-vs-state-rep-by-the-on-13-august-2003","title":{"rendered":"Gopal vs State Rep. By The on 13 August, 2003"},"content":{"rendered":"
Madras High Court<\/div>\n
Gopal vs State Rep. By The on 13 August, 2003<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS\n\nDATED: 13\/08\/2003\n\nCORAM\n\nTHE HONOURABLE MR.JUSTICE N.DHINAKAR\nAND\nTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAM\n\nCRIMINAL APPEAL NO.287 OF 1995 and CRIMINAL APPEAL NO.343 OF 1995\n\n1. Gopal\n2. Yuvaraj\n3. Kesavalu\n4. M.G.Venkatapathy                     .. Appellants in\n                                           CA 287 of 1995\n\nSeshaiah                                .. Appellant in\n                                           CA 343 of 1995\n-Vs-\n\nState Rep. by the\nInspector of Police\nK-2 Ayanavaram Police Station                   .. Respondents in<\/pre>\n
                                                   both appeals<\/p>\n
        These criminal appeals are preferred under  Sec.374  of  The  Code  of
\nCriminal  Procedure  against the judgment of the II Additional Sessions Judge,
\nMadras made in S.C.No.41\/94 and dated 7.3.95.<\/p>\n
\n\n!For A-1 and A-2 :  Mr.V.Gopinath,\nin CA 287\/95            Senior Counsel,\n                for M\/s.A.Aruna Ganesan for A1\n                and for Mr.K.Selvarangan\n                and L.Mahendran for A2\n\nFor A-3 and A-5 :  Mr.B.Sriramalu,\n                in CA 287\/95 for M\/s.K.Annadurai and\n                                                P.Raja\n\nFor appellant in :  Mr.T.Sudanthiram\nCA 343\/95\n\n^For Respondent :  Mr.V.M.R.Rajendran, Addl.P.P.\n\n:COMMON JUDGMENT\n\n<\/pre>\n
(Judgment of the Court was delivered by N.DHINAKAR, J.)
\n        C.A.No.287 of 1995 is by A-1 to A-3 and A-5, and C.A.No.343 of 1995 is
\nby A-4 both in S.C.No.41 of 1994 on the file of  the  II  Additional  Sessions
\nJudge, Madras.\n<\/p>\n
        2.   In the judgment, the appellants in C.A.287\/95 will be referred to
\nas A-1 to A-3 and A-5, and the appellant in C.A.343\/95 will be referred to  as
\nA-4  in  the same order as they were arrayed before the learned Sessions Judge
\nfor the sake of convenience.\n<\/p>\n
        3.  As the two appeals arise out of a single Sessions  Case,  we  pass
\nthe following common judgment in the above two appeals.\n<\/p>\n
        4.  The allegation against A-1 to A-5 is that at 7.30 p.m.  on 15.4.19
\n92, they conspired in the house of A-5 to cause the death of Dellibabu, and in
\npursuance  of  the conspiracy hatched by them, A-1 and A-2 cut the deceased at
\nabout 5.15 a.m.  on 16.4.92  at  Parasurama  Eswara  West  Maada  Street  with
\naruvals and patta knives; and that A-3 to A-5 instigated the attack.\n<\/p>\n
        5.  The learned Sessions Judge found A-1 to A-5 guilty under Sec.120-B
\nof I.P.C.,  but  did not award any separate sentence.  He directed A-1 and A-2
\nto suffer imprisonment for life for a charge under Sec.302 of I.P.C.    namely
\ncharge  No.2,  and  A-3  to Are similarly sentenced for a charge under Sec.302
\nread with 109 of I.P.C.  namely  Charge  No.3.    The  appeals  challenge  the
\nconviction and sentence of the appellants\/A-1 to A-5.\n<\/p>\n
        6.  The case of the prosecution is as follows:\n<\/p>\n
        P.W.1 is  the younger brother of the deceased Dellibabu.  P.W.2 is the
\nfather of the deceased, and P.W.3 is the friend of the deceased.  P.W.5 is the
\nbrother-in-law of P.W.2.  The deceased and P.Ws.1 and 2 were residing at  Door
\nNo.60, Vellala  Street,  Ayanavaram, Chennai.  The deceased was running a Milk
\nStall at Konnur High Road, and P.W.1 was helping him  in  his  business.    On
\n16.4.1992, the  deceased left for his shop taking the cycle along with him.  A
\nfew minutes thereafter, P.W.1 followed him by  walk.    He  saw  the  deceased
\ntaking a turn towards Vellala Street and entering Parasurama Eswara West Maada
\nStreet, and  the  distance between P.W.1 and the deceased w as 60 feet.  While
\nP.W.1 was looking at the deceased, he saw A-1 and  A-2  pushing  the  deceased
\nfrom  the  cycle  on  which the deceased was riding, and they attempted to cut
\nhim.  The deceased on seeing A-1 and A-2 dropped the cycle at that  place  and
\nran away  from  there, chased by A-1 and A-2.  P.W.1 also ran behind them, all
\nthe time shouting “don’t cut my brother, don’ t cut my brother”.   There  were
\nelectric lights burning, and it was 5.1 5 a.m.  When the deceased reached Door
\nNo.15 in the same Street, A-1 and A-2 cut him indiscriminately.  The accused 1
\nto  3  also  threatened P.W.1 telling him that he will also meet with the same
\nfate.  Thereafter, they went away from the place.  P.W.1 went near his brother
\nand attempted to give some water.  Thereafter, an auto was brought,  in  which
\nthe  injured  Dellibabu  was  placed  and  taken  to  Kilpauk  Medical College
\nHospital, where he was produced by P.W.1 before P.W.10, the  Casualty  Medical
\nOfficer at  6.20  a.m.    The Doctor admitted Dellibabu in Male Surgical Ward.
\nP.W.15 Doctor attached to the Hospital commenced his treatment, but  Dellibabu
\ndied at  6.35  a.m.   Ex.P8 is the copy of the accident register issued by the
\nMedical Officer, and an intimation was also sent to  the  police  authorities.
\nP.W.1  on  coming  to  know about the death of his brother, left the hospital,
\nproceeded to Ayanavaram Police Station and handed  over  a  written  complaint
\nEx.P1 to P.W.17, the Sub Inspector.\n<\/p>\n
        7.  At  8.00  a.m.    On  the basis of P1, P.W.17 registered a case in
\nCrime No.992\/92 against the accused under Sec.302 of I.P.C.    Ex.P15  is  the
\nprinted First  Information  Report.  In the meantime, P.W.19, the Inspector of
\nPolice, who was  on  his  rounds,  was  informed  about  the  occurrence,  and
\ntherefore, he proceeded to the scene of occurrence and reached it at 9.00 a.m.
\nHe had  the scene caused to be photographed through a photographer P.W.14.  He
\nprepared an  observation  mahazar  Ex.P2  and  drew  a  rough  sketch  Ex.P26.
\nBloodstained  earth M.O.16 and sample earth M.O.17 were seized under a mahazar
\nEx.P3 attested by witnesses.  He also seized a cycle M.O.4, a  plastic  vessel
\nM.O.5,  a  plastic  basket  M.O.6,  a  plastic ball M.O.7 as well as a pair of
\nslippers M.O.8 (series) under a mahazar Ex.P4.    P.W.19  left  the  scene  of
\noccurrence  and  reached  Kilpauk Medical College Hospital, where he conducted
\ninquest on the dead body of Dellibabu in the presence of panchayatars.  Ex.P27
\nis the inquest report, and after the inquest was over, he gave  a  requisition
\nEx.P10 to the Doctor for conducting autopsy.\n<\/p>\n
        8.   On  receipt  of  the  requisition,  P.W.12 Assistant Professor of
\nForensic Medicine, Kilpauk Medical College, conducted autopsy on the dead body
\nof Dellibabu, and he found the following injuries.\n<\/p>\n
Injuries:-\n<\/p>\n
(1) Oblique incised wound 10 x 1 cm x Skin Deep over the outer aspect of  left
\nshoulder.\n<\/p>\n
(2) Oblique incised wound 8 x 1 cm.  x Skin Deep over the outer aspect of left
\nupper arm, 3 cm.  below the Injury No.1.\n<\/p>\n
(3) Abrasion 4 x 1 cm.  over the back of middle of left fore-arm.
\n(4)  The  terminal  phalanx of the finger of left hand is severed and attached
\nwith the middle phalanx with a tar of skin.\n<\/p>\n
(5) Oblique incised wound 7 x 2.5 cm.  x Muscle Deep over the right  shoulder,
\n5 cm.  medial to right acromion, with tailing at its posterior end to a length
\nof 4 cm.\n<\/p>\n
(6) Incised  wound 2 x 0.5 cm.  x Skin Deep over the palmar aspect of terminal
\nphalanx of index finger of right hand.\n<\/p>\n
(7) Incised wound 1 x 0.5 cm.  x Skin Deep over the palmar  aspect  of  middle
\nphalanx of ring finger of right hand.\n<\/p>\n
(8) Incised  wound  5  x 0.5 cm.  x Muscle Deep over the inner aspect of right
\npalm.\n<\/p>\n
(9) Abrasion 2.5 x 2 cm.  on front of right knee.\n<\/p>\n
(10) Oblique incised wound 5 x 1 cm.  x Bone Deep on front of middle  of  left
\nleg  with  an  oblique  cut over the middle side of Tibia to a length of 2 cm.
\nand to a depth of 0.5 cm.\n<\/p>\n
(11) Oblique incised wound 4.5 x 0.5 cm.  x Skin Deep on front of outer aspect
\nof right side of chest, 14 Cm.  away from the midline over the 6th.  and  7th.
\nInter-costal space.\n<\/p>\n
(12) Abrasion 5 x 1 cm.  over the left scapular region.\n<\/p>\n
(13) Incised  wound 4 x 1 cm.  x Bone Deep over the left side of forehead, 0.5
\ncm.  away from the midline and 5 cm.  above the left eye-brow.
\n(14) Oblique chop wound 10 x 2 cm.  over the left side of head extending  from
\nleft parietal region to left occipital prominence.\n<\/p>\n
ON  DISSECTION, oblique cut over the posterior part of left parietal bone to a
\nlength of 5 cm.  and over the occipital bone on left side to a length of 2 cm.
\ncommunicating with cranial cavity.\n<\/p>\n
ON FURTHER DISSECTION, a cut over the dura matter to a length of 5 cm.  and  a
\ncut over the underlying parietal lobe of Brain to an extent of 4 x 0.5 x 2 Cm.
\naway from the midline.  The depth of the wound is 5 cm.\n<\/p>\n
(15) Oblique  lacerated  wound 7.5 x 1 Cm.  x Bone Deep over the left parietal
\nregion of the scalp, 1 Cm.  away from the midline and 7 Cm.   above  the  left
\near.\n<\/p>\n
(16) Vertical  laceration  6 x 1 cm.  x Bone Deep over the Mid parietal region
\nof the scalp.\n<\/p>\n
(17) Oblique laceration 7 x 1 Cm.  x Bone Deep over the right parietal  region
\nof the scalp.\n<\/p>\n
ON DISSECTION, over the Injury No.15, 16 and 17.\n<\/p>\n
Contusion of  scalp  tissues  20 x 12 x 0.5 Cm.  involving the right temporal,
\nright and left parietal and occipital region on right side.
\nDepressed communicated fracture to an extent of 5  x  2  Cm.    involving  the
\nposterior  parts  of  both  parietal  bones,  from its anterior end a fissured
\nfracture extending to left parietal bone to  a  length  of  6  Cm.    fissured
\nfracture extending  to  right parietal bone to a length of 7 Cm.  and from the
\nposterior end a vertical fissured fracture extending to the occipital bone  on
\nright side close to the midline to a length of 5 Cm.\n<\/p>\n
Contusion 3  x 2 x 1 Cm.  over the left parietal lobe close to the midline and
\n5 x 3 x 1 Cm.  over the right parietal lobe of Brain.\n<\/p>\n
The Doctor issued Ex.P11 the postmortem certificate with his opinion that  the
\ndeceased died on account of his head injuries.\n<\/p>\n
        9.  P.W.19 continuing with his investigation, questioned the witnesses
\nand recorded  their statements.  M.Os.18 and 19 clothes which were on the dead
\nbody, and  produced  by  the  Constable,  who  was  present  at  the  time  of
\npostmortem, were  seized under a mahazar Ex.P9.  He questioned P.Ws.1 to 3 and
\nrecorded their statements.  The material objects were forwarded to  the  Court
\nwith a  requisition  to send them for analysis.  The further investigation was
\ntaken up  by  his  successor  P.W.20  on  20.4.1992.    P.W.20  on  taking  up
\ninvestigation  from  P.W.19,  verified  the  investigation  conducted  by  his
\npredecessor, and on 22.4.92, he came to know that A-1 and A-2 have surrendered
\nbefore the Metropolitan Magistrate, Saidapet.  He filed a  petition  supported
\nby an affidavit on 23.4.92 to take them into police custody, and on the orders
\nof the Magistrate, they were taken to police custody and brought to the Police
\nStation.   They  were questioned at the Police Station namely A-1 at 8.00 a.m.
\nand A-2 at 9.45 a.m., on 26.4.92, and  A-1  and  A-2  gave  statements.    The
\nadmissible portion of the statement of A-1 is Ex.P5.  A-1 and A-2 in pursuance
\nof  the statements given by them, took the police party to Parasuramaiyer Koil
\nStreet and from a vacant plot produced M.Os.1 and 2 which were hidden under  a
\nbush.  They were seized under a mahazar Ex.P6.\n<\/p>\n
        10.   The  Investigating  Officer  thereafter,  seized  M.O.3  an auto
\nbearing Registration No.TSR 2671 and also M.Os.9 to 12 clothes which were kept
\nin the auto, under a mahazar Ex.P7.  He, thereafter, altered the crime to  one
\nunder Ss 147,  148,  302  and  120 B read with 109 of I.P.  C.  On 26.4.92, he
\nexamined P.Ws.4, 5 and 7 and  recorded  their  statements.    On  27.4.96,  he
\nquestioned some  more  witnesses  and  recorded their statements.  A-1 and A-2
\nthereafter, were sent to Court for remand.  On 30.4.92, he arrested A-3 to A-5
\nnear a park at  Anna  Tower.    On  7  .5.92,  P.W.14,  the  photographer  was
\nquestioned, and  his  statement  was  recorded.  On 12.5.92, the Investigating
\nOfficer made a requisition to the  Magistrate  to  record  the  statements  of
\nP.Ws.3 to  5  under  Sec.1  64  of  the Code of Criminal Procedure.  After the
\ncompletion of investigation, the final report was filed against the accused on
\n25.8.92.\n<\/p>\n
        11.  The accused were questioned under Sec.313 of the Code of Criminal
\nProcedure on the incriminating circumstances appearing  against  them.    They
\ndenied all  the  incriminating  circumstances.    They  did  not  examine  any
\nwitnesses.\n<\/p>\n
        12.  The cause of death of Dellhibabu is not in dispute, and the  same
\nstands  established  through  the  evidence  of  Doctor  P.W.12, who conducted
\nautopsy.  The Doctor in his evidence stated that  on  conducting  autopsy,  he
\nfound  the  injuries, which he noted in the postmortem certificate Ex.P11, and
\nalso stated that the injuries 14 to 17 are fatal in nature,  and  the  injured
\nafter  suffering  those injuries, could have lived only for about an hour; and
\nthat all these injuries could have been caused by sharp-edged weapons.  On the
\nevidence of the Doctor, we find that Dellibabu died on  account  of  homicidal
\nviolence.  This  fact  was  not  disputed  before  the trial Court.  Nor is it
\ndisputed before this Court.\n<\/p>\n
        13.  P.Ws.1 to 3 were examined by the trial Court  to  establish  that
\nA-1 and A-2 inflicted the fatal injuries on the deceased at the instigation of
\nA-3 to  A-5.  P.W.5 was examined to show that the occurrence was on account of
\na conspiracy hatched in the house of A-5 on the previous day.  The trial Court
\ndisbelieved the evidence of P.Ws.2 and 3.  On going through the reasons  given
\nby  the  trial Judge and on perusal of the evidence of the said two witnesses,
\nwe find no reason to take a different view from the one taken by him.  We  are
\nalso  of  the  view  that  the  evidence of P.Ws.2 and 3 are too artificial in
\nnature to be believed.  In fact, P.W.2 though claims to be the father  of  the
\ndeceased, has stated that he went away after the incident to attend a marriage
\nand was  examined  by the Police Officer only after 10 days.  Similarly, P.W.3
\nthough claims himself to be the friend of the deceased, did not even  care  to
\njoin  the  grieving  family  of the deceased, and was not even examined by the
\nInvestigating Officer during the inquest.  His name is also not  mentioned  in
\nthe complaint  Ex.P1.   According to the prosecution, he was a chance witness,
\nand he went to the house of the deceased on  the  previous  day  to  go  to  a
\ntheatre along  with  the  deceased.   On going through the evidence of the two
\nwitnesses namely P.Ws.2 and 3, we are not satisfied with their  evidence,  and
\nwe  are  of the view that their evidence cannot be taken into consideration to
\nhold the accused guilty.  We accordingly reject their evidence.\n<\/p>\n
        14.  We will now take up the evidence of P.W.5  to  find  out  whether
\nthere was  conspiracy on the previous night.  On going through the evidence of
\nP.W.5, we find that it bristles with several  artificial  features.    In  his
\nevidence, he  has stated that at 7.00 p.m.  on 15.4.1992, he was proceeding to
\nKunjitham Gurusamy Street to meet his friend, and while he was on the road, he
\nsaw A-1 to A-5 in the house of A-5 and talking among themselves; and  that  he
\nheard A-5 asking A-1 to A-3 to cut the deceased and telling them that A-4 will
\nhelp them  in carrying out the task.  P.W.5 further stated that thereafter, he
\nwent away to the house of his friend, and on the next day,  he  came  to  know
\nabout the murder of Dellibabu and went to the house of the deceased to condole
\nthe death.   He also admitted that he did not inform any of the family members
\nof Dellibabu as to what he heard on the previous  night.    The  Investigating
\nOfficer stated  in  his  evidence  that  he examined him on 26.4.92.  But, his
\nstatement was received by the Court only on 21.5.92.  The conduct of P.W.5  in
\nnot  informing  the  family members of the deceased about the conspiracy being
\nhatched in the house of A-5 to murder the said Dellibabu, and  the  fact  that
\nhis  statement  was  received by the Magistrate only on 21.5.92 create a doubt
\nwhether P.W.5 was  really  present  near  the  house  of  A-5  and  heard  the
\nconversation among   the  accused.    It  is  also  difficult  to  accept  the
\nprosecution version that A-1 to A-5 who were hatching the conspiracy to murder
\na person, were so loud in their voice, so that others  could  hear  about  the
\nconspiracy.   It is a known fact that conspiracy is always hatched in secrecy,
\nand it is, therefore, difficult to believe that A-1  to  A-5  were  discussing
\ntheir plans to murder the said Dellibabu in a highpitched voice, so that their
\nplans could  be  known  to  persons passing in the road.  We do not attach any
\nimportance to the evidence of P.W.5.\n<\/p>\n
        15.  We will now take up the evidence of P.W.1, the  only  eyewitness,
\nwhose  evidence  was  believed  and accepted by the trial Court to convict the
\naccused under Sec.302  of  I.P.C.    On  going  through  the  entire  recorded
\nevidence,  we,  even  at  the  outset,  say  that  we are unable to accept his
\nevidence also.  The case of the prosecution is that the occurrence took  place
\nat about 5.15  a.m.   on 16.4.92.  The evidence of P.W.1 is to the effect that
\nhis elder brother left the house for his shop, where he was selling milk;  and
\nthat he  followed  him,  a few moments thereafter.  It is his further evidence
\nthat when he saw his brother entering Parasurama Eswara West Maada Street,  he
\nsaw A-1 and A-2 pushing the deceased from his cycle and attempting to cut him.
\nAccording  to  him,  on  seeing  A-1  and A-2, the deceased ran from the place
\nchased by A-1 and A-2, and he also ran behind them.  P.W.1  also  stated  that
\nwhen  the  deceased  reached  Door No.15 in the same Street, he fell down, and
\nthereafter, A-1 and A-2 inflicted indiscriminate cuts.    It  is  his  further
\nevidence  that the deceased was placed in an auto and was taken to the Kilpauk
\nMedical College Hospital and produced before the Doctor P.W.10 at 6.20 a.m.\n<\/p>\n
        16.  The Doctor P.W.10 has in his evidence  stated  that  the  injured
\nDellibabu  was  produced  before  him  by  Sukumar, the younger brother of the
\ndeceased.  The Doctor in his cross examination has admitted that  the  Doctors
\nwho  admit a victim involved in a medico-legal case will always ask either the
\nvictim if he is conscious or the person who brings him to the hospital, as  to
\nthe  cause of injuries; and that thereafter, the answer given by the victim or
\nby the person who brought him, will be entered in the  register  kept  at  the
\nhospital.   He  has also stated that if names are given, it will be written in
\nthe register as ” attacked by known persons”, and that they will note down the
\nnumber of persons who attacked the victim.  He has admitted that in Ex.P8, the
\naccident register, he did not note such details.  He further added that as  is
\nthe  custom  with  the medical authorities in medico-legal cases, he asked the
\nbrother of the deceased Dellibabu as to how Dellibabu suffered  injuries,  and
\nP.W.1 did not give any details about the attack and also the number of persons
\nwho attacked  the  victim.    He  has  also  further added that he has sent an
\nintimation to the Outpost Police Station.  According to  him,  the  intimation
\nsent  to the Outpost Police Station is forwarded by the Police Officers at the
\nOutpost Police Station to the concerned Police Station  for  its  registration
\nand subsequent  investigation.   The evidence of P.W.10, therefore, shows that
\nwhen P.W.1 took his brother to the hospital and admitted him, he had  no  clue
\nas to who attacked his brother and the number of persons who attacked him.  If
\nP.W.1  was  really  an  eyewitness and saw the occurrence, he would have given
\ndetails about the incident including the names of the accused and  the  number
\nof  persons  who attacked his brother, though the evidence of P.W.1 is that on
\ncoming to know that his brother has died, he left for the Police  Station  and
\ngave a complaint at 8.00 a.m.  to P.W.17, the Sub Inspector, Ayanavaram Police
\nStation giving names of the assailants.\n<\/p>\n
        17.   We will now find out whether the complaint Ex.P1 could have come
\ninto existence at 8.00 a.m.  or whether there was an information regarding the
\noccurrence even earlier to 8.00 a.m.  At this stage, we cannot, but  recollect
\nthe  evidence  of  P.W.10  who has stated that the Medical Officer will always
\nsend a report to the Outpost Police Station, if the victim is  involved  in  a
\nmedico-legal  case; that the Police Officer at the Outpost Police Station will
\nforward the said intimation to the concerned Police Station; and that in  this
\ncase also,  he  sent  an  intimation  to  the  Outpost  Police Station.  If an
\nintimation was sent to the Outpost Police Station, then it must have  been  at
\naround 6.45  a.m.    or  7.00 a.m., since Dellibabu breathed his last at about
\n6.35 a.m.  on 16.4.1992.   In  this  background,  we  will  now  consider  the
\nevidence  of  P.W.16,  the  Police  Constable  attached  to  Ayanavaram Police
\nStation.  It was he, who was present at the time of postmortem.  In his  cross
\nexamination, he has stated that he joined duty at Ayanavaram Police Station at
\n7.00 a.m.   and  was there till 1.30 p.m.  He has further admitted that he did
\nnot know as to who gave the complaint and at what time the said complaint  was
\ngiven regarding the incident.  He went on to admit that the Police Officers at
\nthe  Police  Station  knew about the incident even by 7.00 a.m., and there was
\nhectic activity at the Police Station even by that time.  He has also admitted
\nthat the Investigating Officer P.W.19 was in the Police Station from  7.00  a.
\nm.  till  1.30  p.m.  on that day, though P.W.19 came out with a contradictory
\nversion by stating that he was on bandobust duty and came to  know  about  the
\nincident;  and  that  thereafter,  he  proceeded to the scene of occurrence to
\ncommence the investigation.  The  evidence  of  the  Police  Constable  P.W.16
\nattached  to  Ayanavaram  Police  Station, therefore, destroys the case of the
\nprosecution that the complaint Ex.P1 was given by  P.W.1  at  8.00  a.m.    to
\nP.W.17,  the  Sub Inspector, as the Police Officers were aware of the incident
\neven by 7.00 a.m., and there was hectic activity at the  Police  Station,  and
\nthat  the Investigating Officer was also present at the Police Station even by
\n7.00 a.m.  This means that the police must  have  had  information  from  some
\nother source even before 7.00 a.m., and therefore, the present case that P.W.1
\ngave the  complaint  at  8.00  a.m.    and  thereafter,  the  crime came to be
\nregistered cannot be true.\n<\/p>\n
        18.  At this juncture, an useful reference can be made to the evidence
\nof P.W.14, the photographer.  P.W.14 even in chief stated that he went to  the
\nscene of  occurrence  and  took photographs at 8.30 a.m.  If the complaint was
\ngiven at 8.00 a.m.  and P.W.19, the Investigating Officer, came to know  about
\nthe incident,  while  he  was  on  his  rounds,  at 8.50 a.m.  and the Officer
\nreached the scene of occurrence at 9.00 a.m., then P.W.14 could not have  been
\nat  the  scene of occurrence to take photographs at 8.30 a.m., as he could not
\nhave gone there before any requisition was issued to him to  go  over  to  the
\nscene of  occurrence  to  take  the photographs.  The above evidence of P.W.14
\nalso indicates that the information about the murder was known to  the  police
\nauthorities much  earlier  to  8.00  a.m.    P.W.14  added more worries to the
\nprosecution by giving an answer in the cross examination that when he went  to
\nthe scene  of  occurrence, he saw the Police Officers namely P.  W.17, the Sub
\nInspector and P.W.19, the Inspector, and the photographs were taken within  an
\nhour  of  his  reaching  the scene of occurrence, which shows that when P.W.14
\nwent to the scene of occurrence at 8.30 a.m., the  Police  Officers  including
\nthe  Sub  Inspector P.W.17 and the Inspector P.W.19 were at the scene, and the
\nphotographs were taken within an hour.  This evidence of P.W.14 also  destroys
\nthe prosecution version that Ex.P1 was given by P.W.1 at 8.00 a.m.\n<\/p>\n
        19.   It  is  to  be  remembered  at  this stage that according to the
\nInvestigating Officer P.W.19, the inquest was  conducted  between  11.15  a.m.
\nand 2.15 p.m.    at Kilpauk Medical College Hospital.  It is normally expected
\nof a Police Officer to examine the eyewitnesses at the  time  of  inquest,  if
\nthey  are available; but, in this case, the Officer did not examine any of the
\neyewitnesses at the time of inquest, though P.Ws.1 to 3 have stated that  they
\nwere in the hospital from the morning till 4.00 p.m.  on that day.  If that be
\nthe  case,  we  are  unable  to  comprehend  as to why P.W.19 did not think it
\nnecessary to examine the three alleged eyewitnesses,  when  he  conducted  the
\ninquest.   There  is  no  explanation  on  the side of the prosecution for the
\nnonexamination of these witnesses at the time of inquest.\n<\/p>\n
        20.  In this background, we will now  consider  the  evidence  of  the
\nPostmortem Doctor P.W.12, and his findings noted in the postmortem certificate
\nEx.P11.   A perusal of the postmortem certificate Ex.P11 shows that the Doctor
\nfound 100 grams of undigested rice in the stomach of the deceased.    When  he
\nwas in  the box, he was cross examined on this aspect.  He has stated that the
\ndeceased m ust have consumed his last meals about an hour and  half  prior  to
\nhis death.    This means that the deceased would have taken his meals at about
\n4.30 or  5.00  a.m.,  which  is  unbelievable  since  the  Doctor  found  rice
\nparticles,  and  no  person in this part of the country takes rice at that odd
\nhour.  The presence  of  undigested  rice  in  the  stomach  of  the  deceased
\nindicates  that  the deceased must have been attacked much earlier, and later,
\non coming to know about the death  of  his  brother,  P.W.1  would  have  been
\nsummoned, and the complaint Ex.P1 would have been prepared.\n<\/p>\n
        21.   Though  the prosecution relied upon the evidence of P.Ws.4 and 7
\nto show that after the incident, A-1 to A-3 travelled in the  auto  driven  by
\nP.W.4,  and  the  same  was seen by P.W.7, we are unable to place any reliance
\nupon their evidence, since admittedly, their statements were received  by  the
\nMagistrate  only on 21.5.92, though they were claimed to have been examined by
\nthe Officer on 26.4.92.  It is also difficult to accept the evidence of  P.W.4
\nthat  when  the  accused  1 to 3 came near his auto, they proclaimed in a loud
\nvoice that they have murdered Dellibabu on the directions of A-5.   There  was
\nno  need  for  any of the accused to have mentioned about their deeds and much
\nless about the alleged part played by A-5 to P.W.4, an auto driver.    We  are
\nalso  unable  to  place  any  reliance on the evidence of P.W.7, since, in our
\nview, his evidence is highly artificial, and  the  totality  of  the  evidence
\nshows  that the prosecution has not succeeded in establishing the case against
\nthe accused beyond all reasonable doubts.\n<\/p>\n
        22.  In the result, these two criminal appeals are  allowed,  and  the
\nappellants\/A-1 to  A-5 are acquitted of the charges levelled against them.  It
\nis reported that the appellants are on bail.  Their  bail  bonds  shall  stand
\ncancelled.\n<\/p>\n
Index:  Yes
\nInternet:  Yes<\/p>\n
To:\n<\/p>\n
1) The II Additional Sessions Judge, Madras.\n<\/p>\n
2) The II Additional Sessions Judge, Madras,
\nThro’ The Principal Sessions Judge, Madras.\n<\/p>\n
3) The V Metropolitan Magistrate, Egmore, Madras.\n<\/p>\n
4) The V Metropolitan Magistrate, Egmore, Madras,
\nThro’ The Chief Metropolitan Magistrate, Egmore, Madras.\n<\/p>\n
5) The District Collector, Madras.\n<\/p>\n
6) The D.G.P., Chennai.\n<\/p>\n
7) The Public Prosecutor, High Court, Madras.\n<\/p>\n
8) The Superintendent, Central Prison, Vellore.\n<\/p>\n
9) The Inspector of Police, K2 Ayyanavaram Police Station,
\nMadras.\n<\/p>\n
nsv\/<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Gopal vs State Rep. By The on 13 August, 2003 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 13\/08\/2003 CORAM THE HONOURABLE MR.JUSTICE N.DHINAKAR AND THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM CRIMINAL APPEAL NO.287 OF 1995 and CRIMINAL APPEAL NO.343 OF 1995 1. Gopal 2. Yuvaraj 3. Kesavalu 4. M.G.Venkatapathy .. Appellants in […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-14821","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nGopal vs State Rep. 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