Madras High CourtSasikumar (Age 29/2010) vs State By on 28 September, 2018Author:R. PongiappanBench:R. PongiappanIN THE HIGH COURT OF JUDICATURE AT MADRAS
		JUDGMENT RESERVED ON		: 25.07.2018
		JUDGMENT PRONOUNCED ON	: 28.09.2018
CORAM:
THE HONOURABLE MR. JUSTICE R. PONGIAPPAN
Criminal Appeal No.568 of 2010
1. Sasikumar (Age 29/2010)
    S/o Mani

2. Poovazhagan (Age 50/2010)			
    S/o Kaliamoorthy					Appellants/Accused 1 & 2
Vs

State by 
The Inspector of Police
Orathur Police Station
Cuddalore District
(Crime No.98/2006)					Respondent / Complainant


Prayer: Criminal Appeal is filed under Section 374(2) of Criminal Procedure code, to set aside the Judgment and conviction dated 16.09.2010 by the learned Additional District Judge, FTC I, Chidambaram in SC No. 20 of 2007 and acquit the appellants. 
	
		For Appellant		:  Mr. S. Ananthanarayanan
					   	   Mr. K. Balu
		For Respondent		:  Ms. T.P. Savitha
						  Government Advocate (Criminal Side)


JUDGMENTThe appellants are the 1st and 2nd accused in SC No.20 of 2007  on the file of the learned Additional District Judge, FTC I, Chidambaram. They stood charged for the offences under Sections 294 (b), 324, 307 and 307 r/w 34IPC. The trial Court by a Judgment dated 16.09.2010 convicted the appellants underSection 307r/w 34IPCand sentenced to undergo 7 years rigorous imprisonment and to pay a fine of Rs.5,000/- each in default to undergo 6 months imprisonment. For the charges underSections 294(b),324IPC, both the accused are acquitted. Challenging the above said conviction and sentence, the appellants / accused 1 & 2 are before this Court with this appeal.2) The Case of the prosecution in brief is as follows:-PW 1 Ramesh is the resident of Narthangudi Village, Chidambaram Taluk. PW 1 and the 1st accused are having previous enmity with respect to the ancestral property. Two days before the date of occurrence, the 1st accused damaged the banana trees of PW 1 by using the paddy harvesting machine. Consequentially, on 16.08.2006, at about 11.00 am, when PW 1 was standing near to the water tank in Narthangudi Village along with his brother PW 2, both the accused came in a Bike, after seeing them, PW 2 questioned with A1 about damage of banana trees, for which 1st accused abuses the PW 1 by using the filthy language as xf;fhy  XHp. njtoah gany eP xHpe;jhy; jhd; gpur;rid jPUk; ,j;njhL xHpe;J nghlh Further, he attacked the PW 1 on his abdominal area by using the knife, in the same transaction, 2nd accused has also attempted to attack the PW 1, by using the knife on his chest, due to the said attack, PW 1 sustained injury on his hand. Consequently, on seeing the blood came from the wound, PW 1 went to the stage of unconscious. The said occurrence was witnessed by PW 3 Thangamani, PW 4  Murugan and PW 7 Velmurugan. After the occurrence, PW 2 admitted the PW 1 in Raja Muthiah Hospital for taking treatment. After the occurrence, both the accused ran away from the scene of occurrence by using the Motor Cycle. Subsequent to that, on receipt of intimation from the Hospital, PW 11, the then Head Constable, Orathur Police Station went over to the Hospital and recorded the statement from PW 1. Thereafter, he returned to the Police station and registered a case in Cr.No.98 of 2006 underSections 294 (b)and307IPC. Ex.P.12 is the First Information Report. The statement given by PW 1 is Ex.P.1.3) In the meanwhile, on the same day at about 11.55 am, PW 10 Dr. Ansar Ali working in Raja Muthiah Hospital examined the PW 1 and found the following injuries.Stab Injury in left upper abdomen
Stab Injuries two in numbers in left arm  1) 2 x 1 cm 2) 2 x 1 cm

After giving first aid, he admitted the PW 1 in the hospital as a inpatient. According to PW 10, the injury sustained by the PW 1 in the abdomen area is grievous in nature. Ex.P.10 is the Accident Register Copy issued by PW 10.4) After the registration of the case, PW 11 despatched the First Information Report to the Court, which having jurisdiction. Further, he handed over the copy of the First Information Report to the Inspector of police, Shetiarthoppu for investigation. On 17.08.2006, after receiving the copy of the  First Information Report, PW 12 Usman Alikhan, the then Inspector of police,  Shetiarthoppu visited the scene of occurrence and prepared the Observation Mahazar in the presence of PW 5 Babu and one Ilavazhan. Further he drawn the Rough Sketch under Ex.P.13. Thereafter, he examined the witnesses and recorded the statements. On 31.08.2006, at about 6.00 pm, in the presence of PW 6 Manimaran and one Ganesan, he arrested the 1st accused. On examination, the accused voluntarily gave disclosure statement and the same was recorded in the presence of the same witnesses. Pursuant to the confession statement, 1st accused took the PW 12 and the witnesses to the bush situated near the Pillayar Temple and identified the knife hidden in the bush, on identification, the said knife was recovered by PW 12 under Ex.P.15 Recovery Mahazar. The admitted portion of the confession Statement given by the 1st accused is Ex.P.14. The blood stained knife recovered by the Investigating Officer is marked as M.O.1. After recovering the knife, he made arrangements for sending the 1st accused to the judicial custody. In the mean time, the 2nd accused in the appeal was granted anticipatory bail by this Court. On 21.09.2006, when the 2nd accused came to the police station for complying the condition imposed by this Court, PW 12 examined him and recorded his confession statement. Pursuant to the confession statement given by the 2nd accused, the Investigating Officer recovered the TVS Suzuki bearing Reg.No.TN 31 U 6887 through the Recovery Mahazar under Ex.P.7. The admitted portion of the confession statement given by the 2nd accused is marked as Ex.P.16. M.O.2 is the Motor cycle.5) In continuance of the Investigation, PW 12 received the Accident Register Copy, two wound certificates pertaining to the PW 1 (Ex.P.7 to Ex.P.9). Further, he sent the recovered material objects to the Court through Form 95. Subsequently, PW 13 Gunasekaran the then Inspector took up the case for further investigation and on completion of investigation, he came to the positive conclusion that both the accused committed the offences underSections 294 (b),324and307IPC and filed a Final Report.6) Based on the above materials, the trial Court framed the charges as detailed above and both the accused denied the same as false. In order to prove the case of the prosecution, as many as 13 witnesses were examined as PW 1 to PW 13 and 21 documents were marked as ExP.1 to Ex.P21. Besides 2 material objects.7) Out of the said witnesses, PW 1 is the Defacto complainant. According to him, the grandfather of the 1st  accused and his grandfather are the brothers, 20 days prior to the occurrence, he made arrangements for partitioning the ancestral property, with the help of surveyor, but due to the non-cooperation of A1, the surveyor returned to his office, without making any partition. Thereafter, before 2 days from the date of occurrence, by using the harvest machine, 1st accused in this case cut the banana trees belongs to him and damaged the same. He has further stated that on the date of occurrence, when he was standing near to the water tank along with his brother Kumar, both the accused are came in a Motor cycle. After seeing the 1st  accused, PW 2 questioned about the damage of Banana trees. Consequentially, a wordy altercation had happened between them, resultantly, the 1st accused attacked the PW 1 on the abdominal area by using the knife. Due to the said attack, his intestine is came from the abdomen. In the same transaction, 2nd accused Kumar took the knife from the 1st accused and attempted to attack the PW 1 on his chest. Since the same was resisted, PW 1 sustained injury on his left hand, he has further stated after seeing the blood came from the abdomen, he went to the stage of unconscious. The said occurrence was witnessed by one Sankar, Lingam and one Srinivasan. He has further stated, after the occurrence,  he was admitted in the Raja Muthaiah Hospital and on the same day at about 9.00 pm, the police officer came and recorded the statement from him.8) PW 2 Kumar is the brother of PW 1, he is the witness to the occurrence. He has stated in the trial Court as before the occurrence, PW 1 made arrangements for partitioning the ancestral property belongs to the PW 1 and to the accused. On that day, when at the time the  surveyor came to the field,  1st accused went away from the village, so the work related to the partition is not completed. He has further stated, 2 days prior to the occurrence, 1st accused damaged the banana trees belongs to PW1. According to him, on 16.08.2006 at about 11.00 am, when he was standing near to the water tank along with PW 1, both the accused came there in a bike, on seeing them he has questioned about the damaging of banana trees, for that the 1st accused scolded the PW 1 by using the filthy language and by using the knife stabbed on his abdominal area. Further the 2nd accused has also attacked the PW 1 and causing the injury on his left hand. He has further stated, after sustaining the injuries, PW 1 went to the stage of unconscious and thereafter he made arrangements for admitting the PW 1 in the Raja Muthaiah Hospital.9) PW 3 Thangamani, is also one of the brother to PW 1 and PW 2. He has narrated the occurrence as stated by PW 1 and PW 2. PW 4 Murugan is the resident of the very same village. He has stated during the time of occurrence, when he was working near to the water tank, both the accused came and made a wordy altercation with the PW 1 and PW 2, resultantly, the 1st accused by using the knife stabbed the PW 1 on his abdominal area. Further, he has stated about the assault made by the 2nd accused. According to him, after assaulting the PW 1, both the accused ran away from the scene of occurrence through two wheeler.10) PW 5 Babu is the witness to the preparation of Observation Mahazar, but he has not supported the prosecution case in any manner.11) PW 6 Manimaran is the resident of Sathangudi has stated that on 31.08.2006, when he was in Narthangudi at about 3.00pm, the Inspector of Police arrested the 1st accused and recorded the confession statement given by him. Further, he stated based on the said disclosure statement, the 1st accused took them to the bush situated near to the lake and identified the blue knife which was used for the commission of offence and the same was recovered by the Investigating Officer. According to him, he stands as a witness to the confession statement given by PW 1 as well as to the recovery of blood stained knife.12) PW 7 is the eyewitness to the occurrence has not supported the case of the prosecution in any way. PW 8 is the resident of Narthankudi has stated that on 21.09.2007, at about 5.00pm, near Nangudi Road,  the Investigating Officer in this case recovered the two wheeler through the Seizure Mahazar. PW 9 Dr. Premraj, who was working in Raja Muthiah Hospital has stated about the treatment given to the PW 1 and about the details of injury sustained by PW 1. According to him, he issued the Accident Register Copy and Wound Certificate to the PW 1.13) PW 10 Dr. Ansar Ali is also a Doctor working in the very same Hospital has stated about the treatment given to the PW 1 and about the details of the injury. PW 11, PW 12 and PW 13 are the police officers. They have stated in their evidence about the registration of the case, details  of investigation, recovering the material objects and about the filing of Final Report.14) The learned trial Judge, with reference to the incriminating evidence adduced by the prosecution, questioned the accused undersection 313Cr.P.C. and for which, they denied the same as false. Subsequent to that, on the side of the accused, one Kumar, the then Sub-Inspector of Police was examined as DW 1. Further, the copy of the First Information Report in Cr.No.60 of 2007 of Orathur police station dated 30.09.2007, copy of the remand report prepared in the said case dated 01.10.2007, the copy of the order passed in Civil Miscellaneous Petition No.3597 of 2007 on the file of Judicial Magistrate No.2, Chidambaram dated 03.10.2007 are marked as Ex.D.1 to Ex.D.3.15) Having considered all the above, the trial Court convicted the accused for the offences as stated in the 1st paragraph of this judgment. Challenging the above conviction and sentence, both the accused are before this Court with this appeal.16) I have heard Mr. S. Ananthanarayanan and Mr. K. Balu, learned Counsels for the appellants, Ms. T.P. Savitha, Government Advocate (Criminal Side) learned Government Advocate for the respondent and perused the materials available on record carefully.17) The learned Counsel for the appellants would contend that after the registration of the case, First Information Report, which was earliest document in this case has not been sent to the Magistrate immediately. Further, he would contend that the inconsistency and improvements available in the evidence of prosecution witnesses would go to show the entire occurrence is false one. Further, he contended that in order to prove the case of the prosecution, no independent witnesses have been examined on the side of the prosecution and he made a submission that the medical evidence given by the Doctor is against the case of the prosecution.18) Furthermore, he contended that as per the evidence of  PW 1, during the time of committing the offence, the appellants used the penknife for assaulting the PW 1, in fact the said knife is not a deadly weapon and it would not cause any serious injury. According to him, during the time of occurrence, PW 1 and PW 2 alone attacked the appellants by using the knife and thereby the appellants alone the victim in this occurrence. Further, he added that during the time of occurrence,  PW 1 alone intercepted the accused and invited the quarrel. Accordingly, he prayed to allow this appeal and for acquitting the accused.19) Per contra, the learned Government Advocate appeared for the respondent would contend that the occurrence had happened in a day light, the delay in sending the First Information Report to the Magistrate is properly explained. He further contended that the minor contradictions which are all indicated by the appellants is not sufficient to disbelieve the case of the prosecution entirely. According to him, the evidence given by the prosecution witnesses proved the charges beyond all reasonable doubts. Accordingly, he prayed for dismissal of the appeal.20) I have carefully considered the rival submissions made by either side.21) On go through the averments made in the First Information Report, it appears that the occurrence had happened on 16.08.2007 at about 11.00 hours. Subsequently, the information was received by the police on the same day at about 23.00 hours. Further, the said First Information Report was received by the Magistrate on 17.08.2006 at 11.00 pm. With regard to the date of First Information Report, the date i.e 17.08.2006 was altered to 16.08.2006. In this regard, on go through the evidence given by PW 1, he has stated that on the date of occurrence itself at about 9.00 pm, the Police officer came to Raja Muthaiah Hospital and recorded the statement under Ex.P.1. On the other hand, the author of the document who is PW 11, the then Head constable of the Orathur Police Station has stated the same version as stated by PW 1. Further, he has stated that after receiving the complaint, a case has been registered on the same day at about 23.00 hours. Now on go through the initials of Magistrate, it appears that he received the First Information Report on 17.08.2006 at 11.00 PM. So the First Information Report has been received by the court after 24.00 hours from the time of registration. Even though the said intervening period is a considerable delay, considering the other circumstances, we cannot hold that the said delay would affect the case of the prosecution. Further, in this case, the Doctor who gave initial treatment to the PW 1 was examined as PW 9. He has stated in his evidence that on 16.08.2006 at about  11.55 am, the brother of the PW 1, who is the PW 2 brought the injured to the Hospital and admitted him as inpatient. Now according to the case of the prosecution, the occurrence had happened on the same day at about 11.00 am. Therefore, within 55 minutes from the time of occurrence, the accused was admitted in the Hospital for taking treatment.  Thereafter, recording the complaint from PW 1 and the registration of the case are all done by the Police Officers. In the said circumstances only the Police Officer registered the case belatedly. So we can not blame the Defacto complainant for the mistake committed by the police. Accordingly, PW 1 / victim is no way responsible for the delay in sending the First Information Report to the Magistrate. In this occasion, it is necessary to see the Judgment reported in 2010 SCC Crl 1402, in which, our Honourable Apex Court has held as follows.Investigation is not the solitary area for judicial scrutiny in a criminal trial. Where there has been negligence on the part of the investigating agency or omissions. Etc., which resulted in defective investigation, there is a legal obligation on the part of the court to examine the prosecution evidence dehors such lapses, carefully, to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the object of finding out the truth. The conclusion of the trial in the case cannot be allowed to depend solely on the probity of investigation.22) Accordingly, due to the lapses committed by the police officer, we can not reject the case of prosecution entirely. In this case, the complaint given by the PW 1 was marked as Ex.P.1. In the complaint, he has clearly stated about the occurrence particularly about the assault made by the both the accused. The averments made in the Complaint is clearly corroborated through the evidence of  PW 1 to PW 4, in which, PW 4 is an independent witness. Therefore, delay in sending the First Information Report to the Court is no way affected the case of prosecution in this case.23) The learned Counsel appearing for the appellant would contend that during the time of getting treatment, the injured has stated before the Doctor, as one known person was attacked at the time of occurrence. Now in the trial Court, both the PW 1 and PW 2 changed their version and stated both the accused assaulted the PW 1 at the time of occurrence. Further he contended that the said lapse and improvement found in the evidence of PW 1 and  PW 2 will create a doubt over the case of prosecution.24) With regard to the said submission made by the accused counsel, strictly speaking  the statement recorded by the Doctor about the occurrence is based on the information given either by the injured or from the person accompanying with the injured. Usually, at the time of admitting the injured for treatment, all the sufferers are in a hurried mood. So based on the information given by the persons stated above, the Doctor who treated the injured entered the particulars of occurrence in the Accident Register copy.25) Furthermore, in general, the Doctor is having the duty to treat the patient and not found out, by whom the injury was caused. In the Judgment reported in 2004 (12) SCC Page 414, our Honourable Apex court has held that 
So far as non-disclosure of names to the doctor, same is really of no consequence. As rightly noted by the courts below, his primary duty is to treat the patient and  not to find out by whom the injury was caused. The plea in this regard is clearly acceptable. The question was examined by this Court inPattiapati Venkaiah Vs. State of A.P.and similar view was taken.26) Thereby, in my opinion, the particulars with regard to the number of persons participated in the occurrence told by the Doctor amounts to hearsay and it is not having any evidentiary value. So the submission made by the appellant is not sufficient for disbelieving the case of the prosecution.27) The learned Counsel appearing for the appellant would contend that the 2nd appellant Poovalagan is the friend of the 1st appellant. He is not having any enmity with the PW 1. However, according to the evidence of PW 1 to PW 4, both the accused came to the occurrence place through the bike (M.O.2), and after the wordy quarrel with the PW 2, 1st appellant stabbed the PW 1 and subsequent to the said attack, the 2nd appellant received the same knife and attempted to stab the PW 1. Thus, as far as the 2nd appellant is concerned, he is not having any motive to kill the PW 1 only for the reason that he is the friend of the 1st appellant. He was falsely implicated in this case, thereby convicting him undersection 307r/w 34IPCis against the ingredients of 307 and 34IPC. Accordingly, he prayed to acquit the 2nd accused.28) It is true that PW 1 and PW 2 did not say anything about the previous enmity of the 2nd appellant towards them. Further, as per the evidence of PW 1 and PW 4, due to the assault made by the 2nd appellant, PW 1 sustained injuries in the left hand, moreover the said injury is simple in nature and not likely to cause the death. Now, on go through the Judgment rendered by the trial court, he was convicted undersection 307r/w 34IPC. Now, as per the evidence of Doctor, it was established that the 2nd accused causing simple injury on the left hand of the PW 1. In the said circumstances, for attracting theSection 307r/w 34IPC, the prosecution must prove the common intention of A1 and A2, or the accused is having the knowledge that the injury caused is likely to cause death. In this case, even though the 2nd appellant is not having any intention to kill the PW 1, during the time of occurrence, he made attempt to attack the PW 1 on his chest.  Further, as per the evidence of PW 1 and PW 2 he attempted to attack the PW 1 by using the same knife used by the A1, which shows he is having the knowledge as if any injury sustained in the chest which likely to cause death.  In the said circumstances, reliance is placed in the judgment of our Honoruable Apex Court reported in AIR 1960 Supreme Court 289, in which our Honourable Apex Court has held that 
Once it is found that a criminal act was done in furtherance of the common intention of all, each of such persons is liable for the criminal act if it were done by him alone. The section is intended to meet a case in which it may be difficult to distinguish between the acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. The principle which the section embodies is participation in some action with the common intention of all or to prove exactly what part was taken by each of them. The principle which the section embodies is participation is some action with the common intention of committing a crime; once such participation is established,S.34is at once attracted.29) Therefore, as per the observation of our Honourable Apex Court, participation in some action with common intention establishes theSection 34IPC. In this case, the evidence given by PW 1 to PW 4 has clearly established the participation of the 2nd appellant in the occurrence and about the common intention. Thereby, convicting the 2nd appellant undersection 307r/w 34 is found correct.30) The learned counsel for the appellant would further contend, in the trial Court, the evidence given by PW 1 to PW 4 establishes that at the time of occurrence, the 1st accused in this case stabbed the PW 1 by using the penknife.(M.O.1) Further he would contend that the said penknife is not a deadly weapon and it would not cause any injury as stated by the Doctor on the body of the PW 1. Further, he contended that the injury causing through the said weapon would not cause the death of a person.  Accordingly, he prayed to allow the appeal.31) On considering the said submission, it is true as per the evidence of PW 9 and PW 10 , PW 1 sustained 2 injuries, the Accident Register issued by PW 9 proves the same. Now on go through the size of weapon used in the occurrence, it was mentioned in the Recovery Mahazar as the length of knife is 23.5 cm. Further, it was mentioned that the said knife is having handle to the length of 13 cms. So the remaining 10 cms alone is the length of knife. In the said circumstances, A1 stabbed the PW 1 on his abdomen, all are aware the knife having 10cms length is sufficient for entering into the abdomen area and causing the stab injury. Moreover, PW 9 and PW 10 has clearly stated that the injury No.1 is grievous in nature. Further, in the trial Court, PW 10 Dr. Ansar Ali, who performed the surgery to the injured has stated that he found the blood to the tune of 1.5 litres in the abdomen area of the injured. Further, he stated because of the stab injury, the intestine of PW 1 came out from the abdomen. Therefore, no doubt the said details given by the Doctor clearly proves the said injury is likely to cause the death to the person who suffered. Thereby the contradictions indicated by the learned Counsel appearing for the appellant would not create any doubt  over the case of the prosecution and in my opinion that the said contradictions are very minor in nature.32) In fact, in this case the Accident Register Copy is the earliest document, which was written by the Doctor at the time of admitting the accused in the Hospital. Now, without seeing the particulars of injury mentioned in the AR copy, the learned Counsel appearing for the appellant would contend in his written submissions that PW 1 sustained only lacerated injury. In this regard, before the Doctor, who gave evidence about the treatment given to the injured, it was not suggested that the injury sustained by the PW 1 is of laceration, even assuming that the second injury is a laceration, the injury No.1 is sufficient to cause the death of a person.33) The next submission made by the Counsel appearing for the appellant is in the alleged occurrence, the appellants are the real victim. With regard to reaching of occurrence place by the appellants,  PW 1 and PW 2 gave different evidence. It would create and leads to the conclusion that both PW 1 and PW 2 came to the occurrence place only with an intention to assault the appellant.34) On considering the said submission, it is an admitted fact that the occurrence had happened near to the water tank situated in the village. Even though PW 1 to PW 3 are related with each other. The evidence given by PW 4 establishes that he come to the occurrence place occasionally in order to perform the repairing work of cablewire. All the eyewitnesses  have stated that prior to the occurrence, PW 1 and PW 2 standing near to the water tank, then only both the accused came to the occurrence place in a bike. Further they have stated that after seeing the accused, PW 2 in this case questioned about the damaging of banana tree. Only thereafter, both the accused committed the offence. So with regard to the attack made by the 1st and 2nd accused, the evidence given by PW 1 and PW 4 is cogent and convincing one. Further, the said evidence is corroborated through the medical evidence. PW 9 has stated about the details of injury corresponding to the evidence given by PW 1 to PW 4. In the said circumstances, in the chief examination of PW 1, he has stated that expecting the agricultural labourers, they are waiting in the occurrence place. However, he has stated in usual, at about  8.00 am, the labourers are went to attend the day to day work. At the same time, PW 2 has also stated both are waiting near the water tank expecting the labourers for weighing the paddy. So both the evidence discloses the same fact that they were waiting for expecting the agricultural labourers alone.  Now on go through the sketch exhibited as Ex.P.13, it would discloses near to the occurrence place, the grocery shop and some other houses are situated and not any agricultural field. So, on culling out the entire evidence given by PW 1 and PW 2, it would establish that before the occurrence, they harvested the paddy in their field and came to the occurrence place for searching the labourers for transporting the paddy from his field to some other place and not for attacking the appellants. Therefore, the submission made by the Counsel as the PW 1 and PW 2 came to the occurrence place with an intention to attack the accused is not supported through the relevant evidence.35) Yet another submission made by the Counsel for the appellant is that the evidence let in by the prosecution with regard to the arrest and recovery of M.O.2 is not cogent and convincing one.  So the said aspect is one of the reason for allowing the appeal. In this regard, in the trial Court, in order to prove the confession statement given by the 1st accused and about the recovery of M.O.1, one Manimaran and one Babu were examined as PW 6 and PW 8 respectively.36) PW 8 has stated that based upon the request made by the police officer, he signed in the Recovery Mahazar.  On the other hand, PW 6 Manimaran has supported the case of the prosecution, he specifically stated that when he was entering into the place alleged to be the  place of arrest. 1st accused and the Investigating officer are present. Further, he stated after recording the confession statement of the 1st accused, they were all went to the lake and recovered the knife. Even assuming the evidence given by the PW 6 is not in order for establishing the arrest of 1st accused. In this case, the recovered materials are not sent to the chemical examination. In the said circumstances, even though the evidence let in by the prosecution in respect to the recovery is doubtful. That alone is not sufficient to hold that the case of the prosecution is false one.37) On the side of the defense, in order to show the enmity between the PW 1 and the accused, copy of the First Information Report registered in Cr.No.60 of 2007, Remand Report, order passed by the Judicial Magistrate dated 03.10.2007 are marked as Ex.D.1 to Ex.D.3. In fact, those documents are dated 30.09.2007 and 1.10.2007, so the said documents are prepared subsequent to this occurrence. Therefore, Ex.D1 to Ex.D.3 are all not related to the occurrence mentioned in this case.  So, the subsequent contact of the accused as well as the victim are not useful for considering the case of appellant in their favour.38) Therefore, as per the discussions made earlier, I am of the opinion that at the time of occurrence, both the accused came to the occurrence place with the common intention to kill the PW 1 and attacked the PW 1 on his abdominal area by using M.O.1 knife and caused grievous injury, which likely to cause death of a person. Thereby, the offence committed by the 1st accused is within the ambit of 307IPC, further the 2nd accused came to the occurrence place with the common intention along with the 1st accused for killing the PW 1, thereby both the accused committed the offences. So the submissions made by the learned Counsel appearing for the appellants would not create any platform for allowing the appeal.39) Accordingly, in the light of the above discussion, this court held that the findings arrived by the trial Court is reasonable and well considered one and thereby the appeal is dismissed. The conviction and sentence awarded by the trial Court is hereby confirmed. The trial Court is directed to take steps to secure the accused and made arrangements for sending them to the prison for serving the remaining period of sentence.  Further ordered to set off the period already undergone by the accused/appellants under section 428 of Cr.P.C

28.09.2018
Speaking Order / Non-Speaking Order

Index		: yes/no

Internet	: yes/no

vrn

To1. The   Additional District Judge, FTC I 
    Chidambaram2. The Inspector of Police
    Government of Tamil Nadu
    Orathur Police Station, Cuddalore District3. The Additional Public Prosecutor 
    High Court
    Madras4. The Section Officer
    V.R. Section
    Madras High Court
    Chennai.R. PONGIAPPAN.J

										
	vrn




Pre-delivery Judgment in
					   	   Criminal Appeal No.568 of 2010								   




Date:28.09.2018