Judgment :- (Appeal preferred against the judgment dated 25.9.2003 in S.C.No.100 of 2002 on the file of the learned Principal Sessions Judge, Nagapattinam.) M. Jeyapaul, J. The accused Mohan and Murugan, who were convicted for an offence under Section 302 of the Indian Penal Code and sentenced to undergo life imprisonment and to pay a fine of Rs.1,000/-, in default, to undergo one year rigorous imprisonment and the second accused who was convicted for an offence under Section 364 of the Indian Penal Code and sentenced to undergo seven years rigorous imprisonment, have preferred the present appeal. 2. As many as 19 witnesses have been examined and 22 documents have been marked on the side of the prosecution. Neither oral nor documentary evidence was let in on the side of the defence. 3. The brief text of the story of the prosecution as reflected in the evidence adduced on the side of the prosecution is as follows:- The Sub Inspector of Police Mrs. Amudha (PW.14) came in search of the first accused Mohan in connection with yet another case at Konerirajapuram village. PW.14 enquired with the deceased Asirvatham the whereabouts of the said Mohan. Thereafter she had left winding up her investigation in connection with yet another case. 4. Vincent (PW.1), Jayaraj (PW.2), Moses (PW.3) were chatting at the market street in Konerirajapuram village at about 7.30 P.M. On 28.12.2001. The second accused Murugan, who came over there having informed Asirvatham, the deceased in this case, that he wanted to talk to him in confidence, took him inside the compound of Veterinary Hospital which is located close by. Having suspected some foul play, PWs.1 to 3 went to the said hospital. 5. PW.1 has deposed in the chief examination that he had witnessed the whole occurrence. But in the cross-examination, he has fumbled and would say that at the time when he along with his companions went inside the hospital, he found Asirvatham in a pool of blood. PW.2 has withstood the cross-examination and has spoken about each and every cut injury caused not only by the first accused but also by the second accused. PW.3 has admitted the presence of PWs.1 and 2 just before the occurrence. But he turned hostile relating to the occurrence proper. The occurrence took place at about 9.00 P.M. on 28.12.2001. PW.2 has withstood the cross-examination and has spoken about each and every cut injury caused not only by the first accused but also by the second accused. PW.3 has admitted the presence of PWs.1 and 2 just before the occurrence. But he turned hostile relating to the occurrence proper. The occurrence took place at about 9.00 P.M. on 28.12.2001. Antonysamy (PW.4) who is none other than the son of Asirvatham also accompanied PWs.1 to 3 to the Government hospital at Kumbakonam. 6. Dr.Paramasivam (PW.10) examined the injured Asirvatham at 10.10 P.M. on 28.12.2001 and found the following injuries:- "1. Cut injury right forearm upper 3rd 12cm x 4 cm bone protruding out. 2. Cut injury right dorsum of hand 6 x 2 cm muscle depth. 3. Cut injury Right side of face extending from angle of eye to ear 12 cm x 3 cm x muscle depth. 4. Cut injury over chin 15 cm x 10 cm exposing post aspect of tongue and oral cavity. 5. Cut injury Left hand (NC) medial aspect 5 cm x 3 cm exposing bone and tendon. 6. Cut injury left fronto parietal region 5 cm x 1 cm bone depth. 7. Cut injury left deltoid 2 in number adjacent 3 x 1 cm muscle depth." 7. Ex.P.10 is a copy of the accident register issued by PW.10. It is his version that he had sent intimation to the police at about 10.45 P.M. on the said day. 8. PWs.2 to 4, having engaged a car, took the injured Asirvatham to Government Hospital, Tanjore for treatment as per the reference made by Dr. Paramasivam (PW.10). PW.11, having recorded the injuries found on the person of the injured in the accident register Ex.P.11 pronounced the said Asirvatham dead. He prepared the death intimation Ex.P.12 and despatched the same to the Out Post Police Station at Tanjore Government Hospital. 9. Vincent (PW.1) proceeded to Palaiyur Police Station and having recorded the complaint with the help of a person submitted the complaint Ex.P.1 to the Head Constable PW.18. Mr.Shanmugam PW.15 who received the said FIR from PW.1 registered a case in Crime No.305 of 2001 under Section 302 of the Indian Penal Code and prepared a printed FIR Ex.P.19 and despatched the original to the learned Judicial Magistrate concerned and the copies thereof to the higher officials. 10. Mr. Mr.Shanmugam PW.15 who received the said FIR from PW.1 registered a case in Crime No.305 of 2001 under Section 302 of the Indian Penal Code and prepared a printed FIR Ex.P.19 and despatched the original to the learned Judicial Magistrate concerned and the copies thereof to the higher officials. 10. Mr. Mahendiran (PW.18) Inspector of Police attached to Palaiyur Police Station having received a copy of the FIR registered in Crime No.305 of 2001 under Section 302 of the Indian Penal Code on 29.12.2001 rushed to the scene of occurrence at about 7.15 A.M. Having inspected the scene of occurrence, he drew a rough sketch Ex.P.21 and prepared an observation mahazer Ex.P.2 in the presence of Selvaraj PW.5 and the another witness. He seized the bloodstained and sample earth (MO-5 and MO-6) under relevant seizure mahazar Ex.P.3. He held inquest on the dead body of Asirvatham at the Government Hospital, Tanjore itself between 10.30 AM and 11.30 A.M. on the very same day and prepared inquest report Ex.P.22. 11. The photographer PW.8 took photographs (MO-9) of the dead body as per the request made by PW.18. 12. On 30.12.2001, the first accused Mohan was arrested by PW.18 in the presence of Sekar (PW.6). On the basis of the admissible portion in the confession statement Ex.P.4 given by the first accused Mohan, the dothi MO-3 and shirt MO-4 were recovered under recovery mahazar Ex.P.5. The weapon of offence MO-1 was also recovered at the instance of the first accused based on his confession at 7.43 A.M. on 30.12.2001 under relevant seizure mahazar Ex.P.6. 13. On 31.12.2001, the second accused Murugan was arrested at about 6.00 P.M. in the presence of David PW.7. On the basis of the admissible portion found in the confession statement Ex.P.7 of the said accused, another weapon of offence MO-2 was recovered. The shirt MO-8 was also recovered from the said accused. 14. Dr. Vijayalakshmi (PW.12) conducted post-mortem examination on the dead body of Asirvatham at about 4.10 PM on 29.12.2001. She found the following external and internal injuries on the said dead body:- "External Injuries:- 1. A curved chop wound noted over the laternal part of left side frontal region of scalp over the hair marigin measuring 5 cm x 4 cm x Bone deep with the skin flap hanging laterally. 2. She found the following external and internal injuries on the said dead body:- "External Injuries:- 1. A curved chop wound noted over the laternal part of left side frontal region of scalp over the hair marigin measuring 5 cm x 4 cm x Bone deep with the skin flap hanging laterally. 2. An oblique cut wound over the middle of occipital region of scalp measuring 10 cm x 2 cm x Bone deep with cut fracture of the underlying bone through which the cut portions of Brain matter was found coming out. 3. A wide transverse cut wound extending from the lateral end of Right eye on to the Right cheek, Right ear Pinna and the Right Temporal region of scalp measuring 14 cm x 2 cm x Bone deep with cut fracture of the underlying bones and the Right ear cartilage. 4. A wide chop wound over the chin region and the adjoining front of upper part and lateral aspects of Neck over an area of 14 cm x 8 cm x Bone deep exposing the cut portions of both sides Mandible and symphysis menti outside. On further dissection – the muscles of Neck, Great vessels, Nerves, Larynx, epiglottis, upper part of Trachea, vocal cords, and other all the Neck structures in this area were found cleanly cut exposed outside. 5. An incised wound over the top of Right shoulder measuring 2 x 1 cm x Muscle deep. 6. A curved cut wound 2 cm below the above wound No.5 over the Right upper arm measuring 3 cm x 2 cm x Bone deep with tailing scratch abrasion on either ends each side measuring 2 cm. On dissection – cut fracture of the acromian process noted and cut fracture of Head of Humerus. 7. A curved incised wound below the Right shoulder measuring 5 cm x 3 cm x Muscle deep. 8. An elipital cut wound over the upper third of Right upper arm measuring 4 cm x 3 cm x Muscle deep with Tailing scratch abrasion from its medial end measuring 3 cm in length. 9. A Transverse cut wound over the middle of back of Right upper arm measuring 3 cm x 2 cm x Bone deep with Tailing scratch abrasion at both ends each measuring 4 cm. 10. 9. A Transverse cut wound over the middle of back of Right upper arm measuring 3 cm x 2 cm x Bone deep with Tailing scratch abrasion at both ends each measuring 4 cm. 10. A wide cut wound over the back of upper third of Right forearm measuring 10 cm x 4 cm x Bone deep exposing the cut fractured portions of both bones underneath and also the Muscles, Vessels, nerves and Tendons outside. 11. A linear cut wound over the medial border of dorsum of Right hand measuring 8 cm x 2 cm x Bone deep with cut fractures of the underlying metacarpal and carpal bones. The underlying muscles, vessels, tendons and nerves were also found cut and exposed outside. 12. A Transversely oblique cut wound over the medial half of dorsum of left hand measuring 8 cm x 4 cm x Bone deep exposing the underlying cut portions of the meta carpal bones, tendons, muscles, nerves and vessels also outside. 13. A curved cut wound over the palmar aspect of medidal half of left palm measuring 5 cm x 3 cm x Bone deep exposing the underlying cut portions of the bones, vessels, Muscles and tendons outside. 14. A punctured wound over the front of lower third of left forearm measuring 2 cm x 1 cm x Muscle deep. 15. Multiple cut wounds over the distal half of left little finger and ring finger with cut fractures of the underlying bones, Tendons, Muscles, Vessels and Nerves were also found cut and exposed outside. 16. A Linear scratch Abrasion over the left side supra scapular area and the adjoining back of Neck measuring 14 cm x ½ cm. 17. A punctured wound over the middle of left scapular region measuring 2 cm x 1 cm x ½ cm. Internal Injuries:- 18. On reflecting the scalp skin sub scalp contusion noted over the whole of scalp. Multiple cut radiating linear fractures of both sides frontal, perital, Temporal and occipital bones. Irregular cut lacerations of both sides cerebral hemispheres. Brain was pale. All the above mentioned injuries were of antemortem in nature probably due to assault by a heavy cutting weapon like Arival. Death would have occurred 12-24 hours prior to postmortem examination. Extremities: Pale. Heart: Normal in size. All the chambers were empty. Valves – Normal. Coronary vessels – Patent. Great Vessels – Normal. Brain was pale. All the above mentioned injuries were of antemortem in nature probably due to assault by a heavy cutting weapon like Arival. Death would have occurred 12-24 hours prior to postmortem examination. Extremities: Pale. Heart: Normal in size. All the chambers were empty. Valves – Normal. Coronary vessels – Patent. Great Vessels – Normal. Lungs – c/s both pale and edematous. Larynx and Hyoid bone – Intact. Stomach : Contained about 100 ml of light brown coloured fluid with no specific smell. Mucosa – Pale. Liver, Spleen, Kidneys – c/s pale. Small Intestine : Empty. Mucosa – Pale. No specific smell made out. Bladder : Empty. Pelvis – Intact." She has opined in her post-mortem certificate Ex.P.14 that the deceased appeared to have died of shock and haemorrhage due to multiple cut injuries involving many of the vital structures. 15. PW.19 Mr.Amirtha Kumar, the Inspector of Police took up further investigation in this matter and having examined the Engineer PW.9 attached to the Electricity Department laid final report as against the accused under Sections 364 and 302 of the Indian Penal Code. 16. When the incriminating portion found in the testimony of the prosecution witnesses were brought to the notice of the accused, they had stoutly denied their involvement in the occurrence alleged against them. It is their version that they are innocent and that they have not committed any offence as alleged by the prosecution. 17. The trial Judge, having relied upon the testimony of PWs.1 and 2 in the background of the other documentary evidence available on record, has come to the conclusion that the second accused committed the offence under Section 364 of the Indian Penal Code and both the accused committed the offence of murder. 18. The learned senior counsel appearing for the appellants/accused, taking us to the cross-examination of PW.1, would submit that PW.1 was not the author of the text of FIR Ex.P.1 inasmuch as PW.1 has categorically deposed during the cross examination that he had simply subscribed his signature to the FIR which was already written. He would further bring to the notice of this Court that all the three alleged ocular witnesses PWs.1 to 3 gained entry into the veterinary hospital only after the deceased fell down to the ground after having received multiple cut injuries. He would further bring to the notice of this Court that all the three alleged ocular witnesses PWs.1 to 3 gained entry into the veterinary hospital only after the deceased fell down to the ground after having received multiple cut injuries. The learned senior counsel would further refer to the cross-examination of PW.1 and would submit that PW.1 has categorically stated that he did not know who delivered cuts on Asirvatham and how he received injuries. 19. The learned senior counsel appearing for the appellants/accused would contend that the testimony of PW.2 is writ large with artificiality inasmuch as he has chosen to describe with meticulous details the alleged 17 injuries received by the deceased Asirvatham. It is humanly impossible to recollect and vomit such information before the Court by a human being, it is further submitted. He has further brought to the notice of this Court that PW.3 has completely turned hostile to the version of the prosecution. 20. The last submission made by the learned senior counsel appearing for the appellants/accused is that the admission intimation sent by PW.10 and the death intimation sent by PW.11, the Doctor who gave first aid and the Doctor who pronounced the said Asirvatham as dead respectively have fallen on deaf ears inasmuch as the police station concerned has not woken up to register a case based on such intimation given by those Doctors. 21. The learned Additional Public Prosecutor would submit that PW.2 has stood the rigorous test of cross-examination elaborately done before the trial Court. It is his submission that the testimony of PW.2 will have to be accepted as he has come out with minute details of the occurrence only during the course of cross-examination. As far as PW.1 is concerned he would submit that the village rustic, who virtually shivered during the course of cross-examination, has given some confused version. It is his submission that the whole evidence of PW.1 will have to be looked into by the Court. The cross-examination alone cannot be dissected and separately looked into, it is his further submission. 22. He would further contend that though PW.3 has turned hostile, his version before the Court would clinchingly establish that PWs.1 to 3 were present at the time when the occurrence unfolded. 23. The cross-examination alone cannot be dissected and separately looked into, it is his further submission. 22. He would further contend that though PW.3 has turned hostile, his version before the Court would clinchingly establish that PWs.1 to 3 were present at the time when the occurrence unfolded. 23. As rightly pointed out by the learned senior counsel appearing for the appellants/accused, PW.1 has given a go by to his chief examination and has come out with a quite contrary version. It is found that PW.1 has categorically deposed during the course of chief examination that he was an ocular witness to the occurrence and that he was the author of FIR Ex.P1. If we go through the whole text of the evidence of PW.1, it is found that PW.1 has categorically stated that he was shivering when he entered into the box for deposing in connection with this case. PW.1 is a village rustic. The fact that PW.1 is the village rustic will have to be taken note of by this Court, while analysing his testimony. 24. Coming to the testimony of PW.2, it is found that his testimony could not be shaken by the rigorous cross examination embarked upon by the defence. On a careful analysis of his testimony, it is found that he has not meticulously stated about the nature of injuries and the delivery of blow by each of the accused during chief examination. But during the course of cross-examination, the defence has made an attempt to demolish his version that he was an ocular witness. Many questions were put during the course of cross-examination relating to the multiple injuries sustained by the deceased. Without any hesitation PW.2 has come out with all the details about the injuries found on the deceased. Normally, it is not possible for a human being to observe in a fraction of second to witness and send all vital informations to his brain, but there are exceptionally gifted persons who could store information regarding an important occurrence and retrieve it whenever it is required. PW.2 may be one of such persons who could store the information and retrieve it when occasion arises. If at all, PW.2 has come out with all these meticulous details during the course of chief examination, we might have inclined to hold that it was a tutored version. PW.2 may be one of such persons who could store the information and retrieve it when occasion arises. If at all, PW.2 has come out with all these meticulous details during the course of chief examination, we might have inclined to hold that it was a tutored version. All questions relating to the nature of injuries and seat of injuries were put only during the course of cross examination and those questions were unfailingly answered by PW.2. This Court observes that the testimony of PW.2 is found to be cogent and acceptable. The trial Court has rightly relied upon the testimony of PW.2. 25. Of course PW.3 has turned hostile to the version of the prosecution. But it is found that he has spoken about the presence of PWs.1 to 3 at the scene of occurrence. He has also admitted that the second accused came down to the place where they were chatting and took Asirvatham inside the veterinary hospital campus. PW.3 has turned hostile for reasons best known to him. 26. If at all the prosecution relies solely upon the testimony of PW.1, there is every scope for doubting his version inasmuch as he has given totally a different version during the course of cross-examination. But the prosecution's version was strongly spoken to by PW.2. There is no reason to discredit the evidence of PW.2. 27. Coming to the confession of these accused and the recovery part of the case, it is found that the shirts, dothi and one bill-hook recovered from the accused were found with human blood of 'B' group. The recoveries have been made only based on the admissible portion in the confession statement of the respective accused. There is no explanation from the side of the accused as to how their apparels and the bill-hook recovered from them found tainted with human blood of 'B' group. Therefore, the recovery part of the prosecution story also gives credence to the ocular version of PW.2. 28. Of course, Dr. Paramasivam (PW.10) and Dr. Rajkumar (PW.11) have stated that admission intimation and death intimation respectively have been despatched to the police station concerned. The fact remains that the police station concerned had not acted upon such intimation. 29. The Head Constable PW.15 has registered the case based on the FIR Ex.P.1 submitted by PW.1 by 6.30 PM on 29.12.2001. Paramasivam (PW.10) and Dr. Rajkumar (PW.11) have stated that admission intimation and death intimation respectively have been despatched to the police station concerned. The fact remains that the police station concerned had not acted upon such intimation. 29. The Head Constable PW.15 has registered the case based on the FIR Ex.P.1 submitted by PW.1 by 6.30 PM on 29.12.2001. When there is ocular witness in this case and supportive evidence is also available, the whole case of the prosecution cannot be thrown to wind just because the investigating agency had not acted promptly immediately on receipt of intimation from Pws.10 and 11. 30. We find that the prosecution has established the charge as against the second accused that it was he who took away the deceased with a view to murder him and that the first and second accused butchered him and having caused lethal injuries on the person of the deceased caused his death and thereby the second accused committed the offence under Section 364 of the Indian Penal Code and the first and second accused committed the offence under Section 302 of the Indian Penal Code. The trial Court has rightly returned a verdict of conviction. There is no warrant for interference with the well considered judgment passed by the trial Judge. Confirming the judgment pronounced by the learned Principal Sessions Judge, Nagapattinam in S.C.No.100 of 2002, the appeal stands dismissed.