CRL A/1002/1995 of Vs on 12 December 2003

:JUDGMENT

M.THANIKACHALAM, J.

The accused 1 to 3 in S.C.No.89 of 1995 on the file of PrincipalSessions Judge, Tiruchirappalli Sessions Division are the appellants.

2. The respondent/complainant, filed a final report against theappellants/accused 1 to 3 and two others, seeking conviction for the offencesaid to have been committed by them, under Section 120-B r/w 449 IPC, 449 r/w34 IPC and 302 r/w 114 IPC on the ground, that they have conspired together tocommit dacoity in the house of one Palaniappa Chettiar on 24.11.1994 at about07.00 a.m. in the house of the fifth accused, that in pursuance of theconspiracy hatched, the accused 1 to 3 trespassed into the house of PalaniappaChettiar in order to commit dacoity on 25.11.1994 at about 01.30 p.m.; thattoo with an intention to commit murder if there was a resistance and that theyhave committed the murder of Palaniappa Chettiar, by strangulating him using arope thereby caused his death and in this view, all are liable to be convicted

3. Upon considering all the materials placed before the PrincipalSessions Judge, Tiruchirappalli, he formed an opinion that there are materialsto frame charges, and to proceed further. In this view, framing chargesagainst all the accused, he questioned them, explaining the nature ofoffences, for which all the accused have pleaded not guilty, therebycompelling the prosecution to take the burden of proof, on their shoulders.

4. The complainant in order to make out a case as framed against allthe accused, marched in 18 witnesses armed with 23 documents, supported byfive material objects. To nullify the effect of the above evidence, if any,on behalf of the accused, five witnesses were examined seeking support fromfive documents.

5. The learned Principal Sessions Judge, Tiruchirappalli, on a consideration of the above materials and scanning the same in accordance withthe well laid principles of law, came to the conclusion, that the prosecutionhas miserably failed to prove the conspiracy and in this view, acquitted A-4and A-5. But, the assessment of the materials further revealed the offencereported against A-1 to A-3, and therefore he convicted the accused appellants1 to 3. A1 is convicted under Section 449 IPC and sentenced to sufferrigorous imprisonment for five years, and life imprisonment under Section 114r/w 302 IPC. The accused 2 and 3 were found guilty under Sections 449 and 302IPC jointly, and they were convicted and sentenced to undergo rigorousimprisonment for five years, for the offence under Section 449 IPC in additionto life imprisonment for the offence under Section 302 IPC ordering thesentence to run concurrently.

6. The prosecution case, in brief, necessary to decide the case is asfollows:

(i) Thiru.Muthiah (P.W.11) is the son of Palaniappa Chettiar.

Palaniappa Chettiar a Pawn Broker by profession was residing at RamaswamyStreet, Manapparai. P.W.1 by name Selvam and P.W.6 by name Arivuselvam areresiding opposite to the house of Palaniappa Chettiar, in the same street.The accused 1 to 5 have hatched the conspiracy, on 24.11.19 94 at about 07.00p.m. in the house of A-5, at Tiruchirappalli to commit dacoity in the houseof Palaniappa Chettiar, if resisted, followed by murder also.

(ii) On 25.11.1994 at about 01.30 p.m., P.W.1 and his son were sittingin their house, discussing their family matters. Hearing some noise in thehouse of Palaniappa Chettiar, they went there, knocked the door, but there wasno response. Hearing the noise, P.W.3, a worker in a Mill, who came on theway and P.W.4, a Painter by profession who came through that street, P.W.5 aswell as P.W.6, joined with P.W.1. Despite their knocking the door, there wasno response, but all of them heard some noise inside the house. Suspectingsome thing is going on inside the house, all of them ran towards south, turnedtowards the lane and peeped through the window. To their surprise, P.Ws.1 and3 to 5 witnessed the accused 2 and 3, strangulating the neck of Palaniappa Chettiar by a rope, while the first accused caught hold of him. Because ofthe strangulation, blood oozed from the mouth of Palaniappa Chettiar. By thehue and cry of the witnesses, the accused attempted to escape from the sceneof crime.

(iii) On seeing, that the accused are attempting to escape, P.Ws.1 and3 to 5 chased them, but failed to apprehend A-2 and A-3, since they scaled thecompound wall and vanished from their eyes, which was witnessed by P.W.6 also.P.W.1 while chasing the accused fell down, and sustained some injuries also.All the above said witnesses unable to apprehend the accused, then went insideand noticed that Palaniappa Chettiar was murdered, and the nearby bathroom waslocked inside. Apprehending that there may be somebody inside, one of thewitnesses sat there, in order to prevent the escape of any other accused, ifinside.

(iv) P.W.1 immediately rushed to the police and narrated the incident,which he had seen, which was reduced into writing as Ex.P-1 by P.W.18, theInspector of Police, Manapparai Police Station at about 02.30 p.m. on thesame day i.e. 25.11.1994. On the basis of Ex.P-1, P.W.18 registered a caseunder Section 302 IPC, in Crime No.396 of 1994 for which he submitted theprinted F.I.R. Ex.P-18 to the Court concerned, through P.W.16.

(v) By taking up the case for investigation, P.W.18 rushed to the sceneof crime at about 04.30 p.m. on 25.11.1994, noticed that the bathroom waslocked inside. As tapping for opening has not yielded any result, P.W.18opened the door forcibly and saw the first accused, who surrendered before theInspector. Later he was remanded to custody.

(vi) Between 06.30 p.m. and 10.30 p.m., P.W.18 conducted inquest inthe presence of panchayatdars and also examined eye witnesses, and the resultis Ex.P-10. During the investigation at 06.30 p.m., in the presence of P.Ws.4and 5, he prepared the Observation Mahazar Ex.P2, as well as the SketchEx.P20. In addition, he recovered M.O.1 under Ex.P3. After examining theavailable witnesses, P.W.18 made arrangement for autopsy through P.W.17 underthe request Ex.P21.

(vii) Dr.Sridhar (P.W.14) on receipt of the requisition Ex.P-21 andupon identification of the body of Palaniappa Chettiar by P.W.17, conductedthe autopsy at about 10.00 a.m. on 26.11.1994 which revealed the followingexternal as well as internal injuries:

External:

1. Ligature mark 1/2cm width. It runs horizontally from the front ofthe neck just above the Thyroid Cartilage encircling right side, back and leftside of the neck and then to the front of the neck. The impression of theligature knots could be visualised at the centre of the back of the neck. Thebase of the ligature mark is pale. Edges of the ligature mark is ecchymosed.

2. Abrasion of 2cm over right knee.

3. Three abrasions of varying sizes over left leg below knee.

Internal:

Underlying subcutaneous tissue of ligature mark during explorationcontains dark coloured fluid blood.

Hyoid: Fracture of right side horn at its junction with the body.

Trachea and Larynx: Intact and inner surface is congested.

Tongue: Bite teeth marks present over anterior 1/3 of the tongue.

Ribs: Intact.

Lungs: Highly distended and congested. On cut section dark colouredblood seen.

Heart: Cavity contains about 10ml of dark coloured blood.

Carotid: Sheeth, ruptured both sides.

Abdomen, Liver, Spleen, Kidneys: Congested.

Stomach: Contains partially digested food particles about 500 gms.

Intestines: Congested, distended & filled with gas.

Bladder: Empty

Testes: Normal

Head: Scalp intact. Reninges intact; congested. Brain intact.Congested. Base of the skull intact. Cervical vertebra intact.

(vii) The Doctor preserving the Hyoid Bone, sent it for pathologicalreport. Pending pathological report of Hyoid Bone, he opined incorporatingthe injuries in Ex.P-16, that the deceased would appear to have died 20-22hours prior to autopsy. Ex.P-14 disclosed contusion of soft tissues at thejunction of right greater horn with the body (ante mortem) as well aspostmortem dislocation of both greater horns. P.W.1 was subjected to medicalexamination during investigation and the Doctor P.W.13 who examined P.W.1 hadnoted eight injuries, out of which seven are simple in nature and one is agrievous injury, under Ex.P-15.

(ix) P.W.18 in continuation of the investigation examined other witnesses, recorded their statements, then and there. He arrested the firstaccused on 25.11.1994 and accused 3 and 4 on 29.11.1994. On the basis of theconfession given by A-3 and A-4, M.O.2 and M.O.3 and Exs.P-7 and P-8 wererecovered from them. In the mean time, the second accused surrendered on05.12.1994 itself before the Judicial Magistrate. After the arrest, in orderto fix the person, who had committed the crime, test identification parade wasconducted by P.W.15 at the request of P.W.18, under Ex.P-22.

(x) Thiru.P.T.Loganathan, then Judicial Magistrate No.II, Kulithalai onreceipt of the request from the Investigating Officer, addressing the jailauthorities conducted a test identification parade on 09.01.1995, at about03.30 p.m. in the Central Pr , Tiruchirappalli, where P.Ws.1 and 3 to 5 haveidentified the accused 1 to 3 correctly and the result is incorporated inEx.P-17. The evidence collected by P. W.18, by the examination of thewitnesses and other attending circumstances brought to surface, the guilt ofthe accused as per the opinion of the Investigating Officer, and the resultwas the final report, leading to the conviction of the accused, after trial asaforementioned, which is under challenge before us.

(xi) This appeal is targeted against the above said conviction andsentence, since the convicted accused have felt, that there were no materialswarranting conviction, on various grounds.

7. Heard Mr.S.Shanmuga Velayutham, learned counsel appearing for theappellants and Mr.Arul, learned Government Advocate appearing for therespondent.

8. Learned counsel appearing for the appellants submits that theconviction and sentence are not sustainable, on the following grounds viz.,1.that the alleged eye witnesses viz., P.Ws.1, 3, 4 and 5 arestrangers to the accused and therefore, there would not have been anypossibility for them, to identify the accused at the time of the allegedincident, followed by the identification before the Court;

2. that in the F.I.R. itself, it is not the case of the alleged eyewitnesses that the accused are known to them or at least, capable ofidentification on seeing;

3. that there was no proper identification in the sense, theidentification parade was not conducted by the Judicial Magistrate in time andproperly also and therefore, on the basis of the alleged identification beforethe Judicial Magistrate, fixing the appellants as accused, is also not withinthe reach of the arms of law; and

4. that there is no final opinion regarding the cause for the death ofPalaniappa Chettiar that is in the sense it is not proved it is a homicidalviolence.

Elaborating further, the learned counsel contended that the trialCourt has failed to take into note, the above factors, which should certainly cause abrasion over the prosecution case at least creating a reasonablebenefit of doubt, which should go to the accused under the normal criminaljurisprudence, clearing the way for acquittal.

9. The learned Government Advocate opposing the above contentions,would submit that the fact P.Ws.1 and 3 to 5 are eye witnesses could not bedisputed and therefore, the trial Court has found their evidence worthy ofacceptance and the same cannot be erased. He further points out that the eyewitnesses have seen the accused at the time of occurrence, since it took placeduring day light and therefore, it is possible for them to identify before theJudicial Magistrate, though it is belated. He further pointed out, that theopinion given by the Doctor regarding the cause of death in the Cou rt, is notquestioned or challenged and therefore, it is too late for the learned counselfor the accused to question the cause of the death of Palaniappa Chettiar.

10. It is also the further submission of the learned Government Advocate, that at the time of the occurrence, admittedly, the defactocomplainant viz., P.W.1 also had no knowledge about the names and particularsof the accused and therefore, the non-mentioning of the same in the F.I.R.would not in any way affect the case of the prosecution, since it has beenestablished beyond all reasonable doubts, by unimpeachable evidence. Thus, hesupported the reasonings and findings of the sessions Court, convicting andsentencing the accused, as aforesaid and prayed for confirmation of sentenceand dismissal of the appeal.

11. In order to appreciate the facts in issue and the controversy aswell as the rival contentions raised on behalf of the parties, we have toremember the location of scene of crime, the time of incident, in addition tothe residence of some of the eye witnesses.

Arguments

12. Admittedly, P.Ws.1 and 6 are residing just opposite to the houseof the deceased. P.W.1 hearing some noise came out and saw the incidentfirst, whereas P.W.6 had seen the incident, only later point of time. P.W.1has no animosity against the accused and in fact even according to thedefence, he is not so close with the deceased. In fact, it is suggested, thatP.W.1 had some animosity against the deceased. In this view, the oralevidence of P.W.1, takes the place of credibility and the same could not beignored. To presume or infer that P.W.1 is deposing against the accused, inorder to escape from the criminality said to have been committed by him, thereis no iota of evidence. P.Ws.3 to 5 have no axe to grind against the accused,and in fact, they are also not in any way connected either with P.W.1 or thedeceased. In fact, one is a mill worker and another is a painter and anotheris an Electrician (P.W.5). During the cross-examination, nothing isconcretely elicited from these witnesses, to doubt their oral testimony suchas it should be motivated or it should be out of fear for the police or due toaffection towards the deceased etc., In the absence of any materials to doubtabout the presence and genuineness of these eye witnesses, we are inclined tohold that they might have seen the incident and that is why, they haveappeared before the Investigating Officer, gave the statements, regarding thefacts, what they have seen which was testified later on before the Court also.

13. The learned counsel appearing for the accused is also unable to point out any acceptable materials, in order to say clinchingly, that theirevidence are not worthy acceptance and they should be ignored or eschewed asunacceptable, at least on the basis of improbability. In this view, theconclusion of the learned sessions Judge, has to be confirmed, withoutinterference, regarding their witnessing the incident whether the evidencegiven by them, makes out a case or not, which we will discuss infra.

14. The law was set in motion, on the basis of Ex.P-1 given by P.W.1

. As rightly pointed out by the learned counsel for the appellants, it doesnot contain the names of the accused. We could not find any fault, because ofthe admitted fact, that it is not the case of the prosecution that accused arealready known to P.W.1, by name or otherwise. In Ex.P-1, it is stated thatP.W.1 has seen three persons inside the house of Palaniappa Chettiar; twopersons were using rope to strangulate the deceased, whereas another personcaught hold of him from behind. The fact, P.W.1 has not given theidentification mark or failed to say that he could identify the accused onseeing, would in our opinion, not to cause any cloud over Ex.P-1, to view thesame doubtfully. Immediately thereto, as seen from the evidence available onrecord, Ex.P-1 complaint was given by P.W.1. He would have recorded the imageof the accused but in a natural way, he has preferred this complaint withoutdisclosing the same. We do not find any infirmity in the non-mentioning ofthe names of the accused, or the particulars regarding the identification,that too in view of the fact that the incident had taken place at about 01.30p.m. At that point of time, one could clearly see a person, who committed theoffence and retain his image also in the mind, for reproduction at later pointof time. The incident took place at about 01.30 p.m. and complaint waspreferred at 02 .30 p.m. On the same day, printed F.I.R. reached the Courtwithout undue delay. In Ex.P-1, the witnesses's names have been specificallystated, including the narration of the incident viz., hearing the noise insidethe house of Palaniappa Chettiar, seeing through window, and the actual act ofthe persons etc. Considering the absence of any delay, a reasonable inferencecould be drawn is that Ex.P-1 does not contain any imaginary averments,invented against the culprits, whereas it should be held, that it does containthe particulars, which the witnesses have seen and in this view it should beaccepted as it is. The trial Court considering this fact, accepted and actedupon Ex.P-1 since it was corroborated by the witnesses also, and we do notfind any error either on facts or on law.

15. The learned counsel for the appellants submits, that theprosecution has failed to prove the cause for the death of PalaniappaChettiar. We are unable to agree with this contention, considering theunquestionable oral evidence of P.W.14. True, as seen from Ex.P-16, no finalopinion was given or obtained regarding the cause of death of PalaniappaChettiar. Ex.P-16 does not say, what is the cause of death of PalaniappaChettiar, though it reads, the deceased would appear to have died 20-22 hoursprior to autopsy. The Hyoid Bone sent for examination also revealedante-mortem contusion, thereby indicating that at the time of strangulationalone, that kind of contusion of soft tissues at the junction of the rightgreater horn could have been occurred. The Doctor, who conducted thepostmortem, who had seen the report, though failed to give any final opinionwhether it is due to inadvertence of the Investigating Officer or not, has

opined before the Court that the deceased would have died only due tostrangulation and not by committing suicide. In fact, only during thecross-examination, reasons were elicited from P.W.14, narrating unassailablereasons, to come to the conclusion of homicidal violence. The Doctor hadnoticed knot impression on the back side of the neck as well, on internalexamination noticed fracture of right side horn at its junction with the body.Further, he has noticed, at the time of the autopsy, oozing of blood from thenostrils, ear and damage to trachea etc. On the basis of the symptoms, he wasof the strong opinion that death would have occurred to Palaniappa Chettiar,only by asphyxia due to strangulation not by hanging himself. The oralevidence of P.W.14, not only rules out the theory of hanging, but also provesthat the death was due to asphyxia by strangulation. Because of the onlyreason, that final opinion was not obtained regarding the cause of death bythe Investigating Officer, before laying the final report, we are unable toignore the oral evidence of P.W.14, which is inspiring and unchallenged. Inthis view, we conclude, that Palaniappa Chettiyar died only due to homicidalviolence and not suicide. Thus, fixing the cause of death of PalaniappaChettiar, we have to find out, who did this strangulation and the effect ofthe same.

16. The main thrust of the learned counsel for the appellants is, that P.Ws.1 and 3 to 5 would not have seen the occurrence and theiridentification of the accused before the Judicial Magistrate is valueless,because of the fact it was not immediately conducted, based on certainjudicial precedent. The incident took place on 25.11.1994, at about 01.30p.m. during day time. Test identification parade was conducted by P.W.15only on 09.01.1995 i.e. after 44 days. Therefore, according to the learnedcounsel for the appellants, the alleged eye witnesses, would not haveidentified the accused, since it is their case that they have seen the accusedonly once, for few minutes or so. It is the further submission of the learnedcounsel for the appellants, that the Judicial Magistrate has not properlyconducted the identification parade, since he failed to question the accused,before conducting identification parade, such as, whether the witnesses wereshown to them or not.

17. All the above witnesses, which we will discuss infra, have categorically deposed without giving a chance for doubt, that they have seenall the accused in the dining hall of the Palaniappa Chettiar's house at about01.30 p.m., when the occurrence had taken place. When the witnesses have seenthe occurrence during day time, the question of identification at later pointof time, may not have much significance, because of the fact, the witnessesmight have seen the assailants perfectly in the day light. If it is the caseof an incident having taken place during night hours, or where there was nofeasibility of the witness to see the assailants clearly, then question ofidentification would take predominant role, that too, in the absence of propertest identification parade. Here, the incident had taken place at about 01.30p.m. and the witnesses had every chance to see the assailants, perfectly andtherefore, later on, even identifying the accused before the Court, would notin our view, create any doubt, in the case of the prosecution even in theabsence of Test Identification Parade. The position being so, delayed test

identification parade conducted in this case, could not be treated as valueless, as alleged by the learned counsel for the appellants. The question ofidentification would depend upon the intelligence of the witnesses, their mindset up, their viewing the incident, availability of the light, the impressionthey received and recorded in the mind and their mental capacity forreproduction at later point of time, whether it is on the next day or sometime later on. If a crime is noticed, being a special occasion, the mind willbe so alert, for some people to catch the figure and print and therefore, ifthey have identified the person, at a later point of time, after two months orso, only on the basis of the delayed identification, we feel doubting abouttheir credibility, is beyond imagination. In this case, it is not the case ofthe defence, that there was no light or no possibility of identifying theaccused etc., and their case appears to be, that P.Ws.1 and 3 to 5 have not atall seen the occurrence. In this context, we have to see the defence also.

18. It is suggested to P.Ws.1 and 3 to 5, that the accused were shownto the witnesses, just one day prior to the test identification parade, atManapparai Police Station. Admittedly, the accused were not in the custody ofManapparai Police Station, and in fact they were in the judicial custody, inCentral Prison, Tiruchirappalli. Therefore, there would not have been anypossibility for the Investigating Officer, to take the prisoners from CentralPrison, Tiruchirappalli, to his Police Station just one day prior to theidentification parade, in order to show them to the witnesses. Thissuggestion would show that a desperate attempt was made, to make the testidentification parade nullity, since all the witnesses have perfectlyidentified the accused, before the Judicial Magistrate, whose proceedings weare unable to doubt. It is not the case of the defence, that the witnesseswere brought to Central Prison and the accused were shown to them. It is alsonot the case of the defence, that the photos of the accused were published andthe witnesses had a chance of seeing the photos, then later on identifyingthem, even without seeing them at the scene of crime. It is not the furthercase of the defence, that the photos of the accused were taken in order toshow, to the witnesses etc. Thus viewing from the defence side also, we areunable to doubt, about the test identification parade and proceedings and theactual identification of the accused by the witnesses. After 44 days,identification parade was conducted. The witnesses have seen the accused inthe day light, though inside the room, and having that remembrance of thefigure, while they were strangulating the deceased, later while two accusedwere running, it is possible for anyone, to identify those persons, at laterpoint of time. In fact, in our view, in this case, no test identificationneed be conducted, because the witnesses have actually seen the accused, byface and figure etc., Only as precautionary measure, test identification wasalso conducted, confirming the identity of the accused. In this view, we areunable to entertain any doubt, in the test identification parade, or in ourconsidered opinion test identification parade viz., Ex.P-17 could not bedescribed as valueless.

19. As contemplated under Section 9 of the Indian Evidence Act, thefact of identity of the person is relevant to say that he should have involvedin the offence. On the basis of Section 9 alone, the identity of the accusedtakes importance, thought it forms part of investigation, not being

substantial evidence. The learned counsel for the appellants would contend,that the witnesses had, if at all only little opportunity to see the face ofthe culprit and therefore the subsequent identification must be animagination, placing reliance on the decision reported in Girja Shankar MisraVs. State of U.P.(1994 SCC ( Cri) 214) wherein, the Apex Court has observedthat if the witnesses have not mentioned the special features of miscreantsbefore the police, the possibility of accused having been shown to thewitnesses not ruled out and in that view, no reliance could be placed on suchidentification.

20. In the case involved in the above decision, it seems, that theincident had taken place nearly about sunset, depriving the sufficient light,to see assailants and there were so many other discrepancies, in conductingthe identification parade coupled, with severe delay. In this case, asaforementioned, the incident took place at about 01.30 p.m. and it is not thecase of lit tle opportunity for the witnesses, to see the culprits whereasthey had sufficient opportunity to fix the accused and identify them lateralso. In this view, in our opinion, the above ruling will not come to the aidof the accused, to escape from the clutches of law.

21. In Mahendra Singh Vs. State of U.P. (1991 Cri.L.J. 1381), theApex Court has taken the view "no link evidence by prosecution to show thataccused was not shown to any prosecution witness before the identification andthe benefit of doubt could be given to the accused." The only suggestion putto the witnesses is, that the accused were shown to the witnesses in thepolice station which is ruled out and no other alternative case is alsoprojected. Therefore, the contention of the learned counsel that in theabsence of link evidence by prosecution, test identification parade isvalueless is not acceptable one and this decision is also of no assistance, tothe accused.

22. The learned counsel for the appellants submits that the delay inholding the identification parade is not satisfactorily explained and on thatbasis, the result of the test identification parade should lose its value. Asaforementioned, the delay was 44 days, which is a normal one and noexplanation also, in the facts and circumstances of the case, is necessary.Even ignoring the test identification parade, conducted by the JudicialMagistrate at the request of Investigating Officer, in this case, on the basisof the evidence given by the eye witnesses, if believable, that they mighthave seen the accused correctly at the time of the incident, would not preventthe Court from convicting the accused, because of the fact that the incidenthad taken place during day light, having sufficient light also, for seeing theaccused perfectly.

23. Conducting an identification parade is a part of theinvestigation and it belongs to the realm of the investigating agency, thefurther fact being, it is not a substantial evidence. Therefore, generally,only on the basis of the delay, identification parade could not be ignored.By the delay caused, if it is shown that the witnesses would not haveremembered the accused, or if it is shown that taking advantage of the delay,the accused were shown to the witnesses, in order to identify, at a later point of time, then only in our opinion, the delay will take its role, toeclipse the evidentiary value of the identification parade. In this case, asaforementioned, the incident had taken place during the day light and thewitnesses had every opportunity to see the accused and remember their figure,in their mind and therefore, we are satisfied that the delay is immaterial inthis case. In this view, we have to scan the ocular evidence and its effect,in order to fix the culpability of the accused.

24. P.W.18 has given evidence unassailably, regarding theregistration of the case, as per the complaint given by P.W.1 on 25.11.1994itself at about 2.30 p.m., on which basis, the case was registered, commencinginvestigation, without any delay. It is the specific case of P.W.18, theinvestigating officer, that he went to the scene of crime at about 4.15 p.m.on the same day, and apprehended the first accused, who was inside thebathroom of Palaniappa Chettiar's house, in the presence of the witnesses.The case spoken by P.W.1 regarding the arrest of the first accused, is notchallenged effectively. On the basis of the confession given by the firstaccused and as the investigation revealed, he arrested the third accused on29.11.1994. Apprehending arrest and probably some harassment in the hands ofthe police, on 5.12.1994, the second accused surrendered, before the Court.It is the further case of P.W.18 that on the basis of the confession given bythe third accused, he recovered some property, but the same has nothing to dowith this case. The arrest of the first accused, at the scene of crime,followed by the arrest of other accused and their identification by theeyewitnesses, make it abundantly clear, that the investigating agency had notcommitted any laches, causing any abrasion to the prosecution case. We arefully satisfied regarding the evidence available on record, to sustain theconviction against all the three accused.

25. It is the case of the prosecution that the witnesses have seen the occurrence or incident, through the window. Therefore, first we have tosee whether there was a window in the dining hall of the deceased PalaniappaChettiar's house, enabling the witnesses, to see the occurrence. Ex.P20sketch would indicate the existence of a window, on the southern wall of thebuilding where the occurrence took place. The Observation Mahazar Ex.P2 says,that in the room where the incident had taken place, there is a window, havingfour doors and one door is open. All the witnesses have categoricallydeposed, about the existence of the window, on the southern side of the room,where the incident had taken place except P.W.5. P.W.5 would state that onthe southern wall of the Palaniappa chettiar's house, there were threewindows, which is not the case of the other witnesses. The other witnesseshave restricted about the window, regarding the dining hall alone. Therefore,this discrepancy, ordinary in nature, would not weaken the prosecution case.The Investigating Officer also has spoken about the Observation Mahazar, notquestioned erasably. Thus accepting the oral evidence of P.Ws.1 and 3 to 5and Investigating Officer, we conclude that there was a window on the southernwall side of the room where the incident had taken place and there is everypossibility, for the witnesses to view the occurrence, through the saidwindow, since there is a lane on the south side of the Palaniappa Chettiar'shouse, admittedly, and as proved by the oral evidence.

26. In order to appreciate the oral evidence of P.Ws.1 and 3 to 5 we

26. In order to appreciate the oral evidence of P.Ws.1 and 3 to 5 we have to see, the defence also though it is not the burden of the accused, toprove his innocence, generally. It is suggested to P.W.1, that due to debtproblem, there was a wordy altercation between P.W.1 and the deceased andlater on, the deceased unable to bear the torture, committed suicide. Whilediscussing the evidence of the Doctor, we had come to the positive conclusion,that Palaniappa Chettiar had not committed suicide, whereas it is only ahomicidal violence. There is no evidence, except some casual suggestions, tothe witnesses even to infer at least that P.W.1 had quarrel with the deceasedPalaniappa Chettiar, thereby causing depression to his mind, leading tosuicide. In this view and on the basis of scientific evidence available,regarding the strangulation, we would rather reject the defence.

27. P.Ws.1, 3 and 4 have categorically deposed about the hearing of the noise, in the house of Palaniappa Chettiar, then knocking the door withoutresponse. It is the assertion of P.W.1, that at that time P.Ws.3 to 5 havealso come there which is corroborated by them. According to him, they wereunable to open the front door, then and they went on the southern side, wherethere is a lane and saw the incident through a window. He would statefurther, that Palaniappa Chettiar was in a standing position caught hold of bythe first accused, while the accused 2 and 3 tying M.O.1 rope around the neck,pulled in opposite direction, as a result of which blood was oozing from themouth of the victim. He would state further, that on their shouting, accused2 and 3 scaled over the compound wall of Palaniappa Chettiar's house, and theywere not able to catch them despite their chase. It is the specific evidenceof P.W.1 that in that process, he fell down and sustained injuries which isspoken by the Investigating Officer, as evidenced by P.W.13's evidence also.The fact P.W.1 sustained injuries on the same day also, would indicate thatonly on seeing the accused, P.W.1 along with others would have chased them,fell down, failed in their attempt, thereby probabilising the case of P.W.1,being the eye witnesses coupled with P.Ws.3 to 5.

28. P.W.3 has categorically spoken, that he entered into the house ofPalaniappa Chettiar through back door and opened the front door and thereafternoticed the bathroom locked inside. P.Ws.1 and 3 to 5 have specifically givenevidence, regarding the surrender of the first accused, who was inside thebathroom, after the arrival of the Investigating Officer, on opening the doorforcibly or otherwise, which is also confirmed by the Investigating Officer,P.W.18. The witnesses have also accounted about the knot of the rope, on theback side of the neck, thereby ruling out the suicide theory. We do not findany reason to ignore the oral evidence of P.Ws.1 and 3 to 5, who haveidentified the accused, not only before the Court, but also before theJudicial Magistrate because of the fact, that they have seen the accused, atthe time of occurrence, during day light, and accepting the same as did by thetrial Court, we conclude that the accused 2 and 3, using the rope M.O.1 whichwas identified by all the witnesses, had strangulated Palaniappa Chettiarwhile the first accused was caught hold of him. Thus, all the three should beheld, for the death of Palaniappa Chettiar which comes within the meaning ofmurder.

29. The learned Trial Judge very elaborately, considering thematerials available on record, came to the conclusion, that no case is madeout against A4 and A5 whereas the charges against the remaining accused areproved beyond all reasonable doubt, based on reasons as well as supported bylegal position, not warranting any interference. In this view, we concludethe appeal is devoid of merits and liable to the dismissed.

30. The conviction and sentence of the accused are maintained and thecriminal appeal is dismissed. All the accused/appellants are directed tosurrender before the trial Court and their bail bonds shall stand cancelledand sureties shall stand discharged on their surrender. They will be taken tocustody forthwith to serve out the sentence, for that the trial Court isdirected to take steps.

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To

1. The Judicial Magistrate, Manapparai,Tiruchirappalli.

2.-do- through the Chief JudicialMagistrate, Tiruchirappalli.

3. The Principal Sessions Judge, Tiruchirappalli.

4. The Superintendent, Central Prison,Tiruchirappalli.

5. The Public Prosecutor,High Court, Madras.

6. The Inspector of Police,Manapparai Police Station,Tiruchirappalli.

7. The District Collector,Trichy District.

8. The Director General of Police,Mylapore, Madras - 4.