JUDGMENT (Prayer: Criminal Appeal is filed under Section 378 of the Code of Criminal Procedure, against the judgment and order dated 11.04.2019 in S.C.No.53/2012 on the file of the Additional District & Sessions Judge, (Fast Track), Nagercoil, Kanyakumari District.) P.N. Prakash, J. 1. This criminal appeal is filed against the judgment and order dated 11.04.2019 in S.C.No.53/2012 on the file of the Additional District & Sessions Judge, (Fast Track), Nagercoil, Kanyakumari District. 2. The prosecution story runs thus: 2.1. Manikandan (A-1), Iyyappan (A-2) and Babu (A-3) are the sons of one Selvaraj and Subash @ Kannan (A-4) is a close relative of A-1 to A-3. The incident in this case is said to have taken place around 7.00 p.m. on 09.06.2011 in the junction of Rajakkamangalam and Sasthan Koil Road. The deceased Selvakumar was the brother of Gunasekaran [P.W.-1] and a close relative of Suresh [P.W.2], Vaikundarajan [P.W.-3] and Muthukumar [P.W.4]. 2.2. Selvakumar had several criminal cases to his credit and in one such case, he is said to have attacked Selvaraj, the father of Manikandan (A-1), Iyyappan (A-2) and Babu (A-3), in connection with which, a case in Rajakkamangalam Police Station Crime No.117/2011 was registered under Sections 294(b), 324 and 506(ii) IPC and Section 3(1) of the Tamil Nadu Property (Prevention of Damages and Loss) Act, 1992 on 03.05.2011 against Selvakumar [vide Ex.P.23]. Selvakumar was arrested and later he was released on bail. While on bail, on 09.06.2011, Selvakumar got down from a bus at Thammathukonam Junction and while he was walking towards his house, he was intercepted by Manikandan [A-1], Iyyappan [A-2] and Babu [A-3], who came by a motorcycle and Subash @ Kannan [A4], who was already lying in wait and was hacked in the junction of Rajakkamangalam Road and Sasthan Koil Road. This was witnessed by Gunasekaran, Suresh, Vaikundarajan and Muthukumar [P.W.-1 to P.W.4], who were in Murugesan Tea Shop on the opposite side. Immediately, when they rushed to the place of occurrence, the accused abandoned their motorcycle (M.O.-4) and fled. Suresh [P.W.-2] and others carried Selvakumar to the Government Hospital, Kanyakumari, where Dr.Xavier Christhurajan [P.W.-10] examined Selvakumar at 7.10 p.m. on 09.06.2011 and recorded 5 cut injuries in the Accident Register. The copy of the Accident Register was marked as Ex.P.16. Since Selvakumar was alive, he was admitted as an inpatient in the ICU for intensive treatment and intimation was sent to the police. 2.3. The copy of the Accident Register was marked as Ex.P.16. Since Selvakumar was alive, he was admitted as an inpatient in the ICU for intensive treatment and intimation was sent to the police. 2.3. On a written complaint [Ex.P-1] given by Gunasekaran [P.W.-1], Balakrishnan, Sub Inspector of Police registered a case in Rajakkamangalam Police Station Crime No.131/2011 on 09.06.2011 at 22 hrs. for the offences under Sections 294 (b), 341 and 307 IPC and prepared the printed FIR [Ex.P-19]. Balakrishnan - Sub Inspector of Police died and therefore, the prosecution was unable to examine him in the trial Court. 2.4. Sridhar [P.W.-12] Inspector of Police took up the investigation of the case and went to the place of occurrence on 10.06.2011 and prepared the observation mahazar [Ex.P-2] and from the place of occurrence, seized bloodstained soil and soil without bloodstain and a Bajaj two wheeler bearing registration No.TN 74 C 3662 [M.O.4] under a cover of mahazar [Ex.P.3]. He also prepared a rough sketch [Ex.P-20]. In the Accident Register [Ex.P.16], with regard to history of assault, it is stated that four known persons had assaulted Selvakumar at Thammathukonam at 6.55 p.m. on 09.06.2011 using aruval and it is also stated, “brought by relative Suresh”. Selvakumar succumbed to the injuries in the Government hospital at 7.10. a.m. on 11.06.2011 vide death intimation [Ex.P-13]. 2.5. On 15.06.2011, Manikandan (A-1), Iyyappan (A-2), Babu (A-3) and Subash @ Kannan [A-4] surrendered before the Judicial Magistrate, Padmanabhapuram, which is not the jurisdictional Court of Magistrate. On coming to know of it, the Investigating Officer [P.W.-12] made necessary applications and took them in custody on 21.06.2011 and based on their police confession, four bill hooks [M.O-7 to M.O.10] were recovered under seizure mahazars [Ex.P-5 to Ex.P-8] on 21.06.2011 by the Investigating Officer. In the meanwhile, inquest over the body of Selvakumar was conducted and the inquest report was marked as Ex.P-21. 2.6. Dr.Velmurugan [P.W.-11] conducted autopsy on the body of Selvakumar and issued postmortem certificate [Ex.P-17] and final opinion [Ex.P-18]. In his evidence as well in the postmortem certificate [Ex.P-17], the following antemortem injuries have been noted: “The following antemortem injuries noted: 1.14 cm long sutured out wound seen over the right parietal region. On examination, it is bone deep. 2.5 ½ cm long sutured cut wound seen over the right side of fore head. On examination, it is skin thick. On examination, it is bone deep. 2.5 ½ cm long sutured cut wound seen over the right side of fore head. On examination, it is skin thick. 3.10 x ½ cm abrasion seen over the upper 3rd of inner aspect of right fore arm. 4. 5 ½ cm long oblique sutured cut wound seen over the front of lower 3rd of right thigh. On examination muscles deep. 5. 2 cm long oblique sutured cut wound seen over the front of right knee. On examination, it is skin thick. 6. 2 cm long sutured cut wound seen over the front of right knee close to the previous wound. On examination, it is skin thick. 7. 8 cm long oblique sutured cut wound seen over the front of right knee 2 xm below the previous wound. On examination, it is skin thick. 8. 1 cm long oblique sutured cut wound seen over the front of left knee. On examination, it is skin thick. 9. 2 cm long horizontal sutured cut wound seen over the inner aspect of left knee. On examination, it is bone deep. 10. 3 cm long sutured cut wound seen over the base of dorsal aspect of thumb. On examination, it is skin thick. 11. 1 ½ x ½ cm abrasion seen over the front of lower 3rd of left fore arm. 12. 1 x ½ x ½ cm cut injury seen over the middle of front of left fore arm. 13. 3 x 1 cm abrasion seen over the outer aspect of left elbow. 14. 12 cm long sutured cut wound seen over the outer aspect of middle of left arm. One examination, it is muscles deep. 15. 1 cm long sutured cut wound seen over the middle of back of left leg. On examination, it is skin thick. All the sutured wounds have regular margins. O/D. Scalp, skull and dura: Sub scalpal bruising noted over the bifrontal, biparietal and right temporal region measuring 30 x 28 cm. Fracture of right temporal and parietal bones noted. Diffused subdural and sub arachnoid hemorrhage noted over the both cerebral hemispheres more on the right side.” 2.7. After receiving the viscera report, Dr.Velmurugan [P.W.-11] gave his final opinion in Ex.P.-18, which is as under: “Final opinion: The deceased would appear to have died of head injury and complication. The examination of viscera has not detected any poison or alcohol.” 2.8. After receiving the viscera report, Dr.Velmurugan [P.W.-11] gave his final opinion in Ex.P.-18, which is as under: “Final opinion: The deceased would appear to have died of head injury and complication. The examination of viscera has not detected any poison or alcohol.” 2.8. Senthilvel [P.W.-13] Inspector of Police, who succeeded Sridhar [P.W.12] completed the investigation and filed a final report in PRC No.2/2012 in the Court of the Judicial Magistrate No.1, Nagercoil, under Sections 294(b), 341 and 302 IPC against Manikandan [A-1], Iyyappan [A-2], Babu [A-3] and Subash @ Kannan [A-4]. 3. On appearance of the accused, the provisions of Section 207 Cr.P.C. were complied with and the case was committed to the Court of Session, Kanyakumari at Nagercoil in S.C.No.53 of 2012 and was made over to the Additional District and Sessions Court (FTC), Nagercoil for trial. The trial Court framed three charges against the accused, namely, under Section 341, 294(b) and 302 IPC. When questioned, they pleaded “not guilty”. 4. To prove the case, the prosecution examined 13 witnesses and marked 23 exhibits and 10 material objects. In the cross-examination of the prosecution witnesses, the defence marked three exhibits [D-1 to D-3], which are all copies of FIRs, in which, Selvakumar was shown as accused, in order to show that Selvakumar was a person with criminal antecedents. When the accused were questioned under Section 313 Cr.P.C., on the incriminating circumstances appearing against them, they denied the same. No witness was examined from the side of the accused nor any document was marked. 5. After considering the evidence on record and on hearing either side, the trial Court, by judgment and order, dated 11.04.2019 in S.C.No. 52/2011, has acquitted Subash alias Kannan [A-4], but has convicted and sentenced Manikandan (A-1), Iyyappan (A-2) and Babu (A-3) as follows: Accused Section ofLaw Sentence ofImprisonment Fine amount A1 to A3 341 IPC To undergo rigorousimprisonment for aperiod of six months each Rs.500/-, in default toundergo simpleimprisonment for one month each. A1 to A3 302 IPC To undergoimprisonment for life Rs.5000/- each, in default toundergo simpleimprisonment for one year each The aforesaid sentences were ordered to run concurrently. Challenging the same, Manikandan (A-1), Iyyappan (A-2) and Babu (A-3) are before this Court. 6. Heard Mr.Niranjan S.Kumar, learned counsel for the appellants and Mr.A.Thiruvadikumar, learned Additional Public Prosecutor for the respondent. 7. A1 to A3 302 IPC To undergoimprisonment for life Rs.5000/- each, in default toundergo simpleimprisonment for one year each The aforesaid sentences were ordered to run concurrently. Challenging the same, Manikandan (A-1), Iyyappan (A-2) and Babu (A-3) are before this Court. 6. Heard Mr.Niranjan S.Kumar, learned counsel for the appellants and Mr.A.Thiruvadikumar, learned Additional Public Prosecutor for the respondent. 7. The trial Court has believed the eyewitness account of Suresh, Vaikundarajan and Muthukumar [P.W.-2 to P.W.-4] qua Subash @ Kannan [A-4], the reason, for which, has been given in the impugned judgment and order in Paragraph No.39, which reads thus: “39. ... Though P.W.2 to 4 have stated that the 4th accused was standing with an Aruval, no witnesses alerted themselves with the pending enmity and even otherwise when a person standing with an aruval that too in a junction will cause an alarm in the minds of the people and hence the presence of the 4th accused has to be doubted as accused No.1 to 3 came in a motorcycle and all the four accused have attacked the deceased, which is not believable.” 8. This case is based on the eyewitness account. Gunasekaran [P.W.-1] has stated inter-alia that Selvakumar is his brother; Selvakumar had earlier broken Selvaraj's arm, the father of the accused Manikandan (A-1), Iyyappan (A-2) and Babu (A-3); this being the motive, on 09.06.2011, around 6.55 in the evening, while he [P.W.-1] along with Suresh [P.W.-2], Iyyappan [not examined], Mathiyalagan [not examined], Muthukumar [P.W.-4] and Vaikundarajan [P.W.-3] were having tea in the tea shop of Murugesan at Rajakkamangalam – Chettikulam Road, they saw Selvakumar alighting from the bus and proceeding towards his house; at the turning of Thammathukonam and Sasthan koil, Manikandan [A-1], Iyyappan [A-2] and Babu [A-3] came in a motorbike and indiscriminately hacked Selvakumar; Subash @ Kannan [A-4], who was already there in Sasthan Koil Road, joined Manikandan [A-1], Iyyappan [A-2] and Babu [A-3] in the attack; when they saw the attack, they rushed to the opposite side abandoning the motorcycle and fled; Selvakumar was carried to the Government Hospital in an autorickshaw for treatment; while they were at the hospital, the police came and he gave a complaint [Ex.P.1]; on 11.06.2011 at 7.10 a.m., Selvakumar died; Suresh [P.W.-2], Vaikundarajan [P.W.-3] and Muthukumar [P.W.-4], who were with Gunasekaran [P.W.-1] have substantially corroborated the complaint [P.W.-1]. 9. 9. The learned counsel for the appellants contended that when the trial Court has disbelieved the evidence of Suresh [P.W.-2], Vaikundarajan [P.W.-3] and Muthukumar [P.W.-4] with regard to the allegations against Subash @ Kannan [A-4], it ought not to have convicted Manikandan [A-1], Iyyappan [A-2] and Babu [A-3]. 10. Be it noted, the principle, falsus in uno falsus in omnibus is not applicable to India. In this context, it may be profitable to refer to the judgment of the Supreme Court in Dinesh v. State of Uttarpradesh [ 2008 (15) SCC 745 ] and Laxman v. State of Maharashtra [ 1974 (3) SCC 704 . 11. The trial Court has given cogent reasons as to why it is not accepting the version of the witnesses with regard to the involvement of Subash @ Kannan [A-4], the relevant portion of which, we have extracted in paragraph No.7, supra. 12. It is contended by the learned counsel for the appellants that Selvakumar was admittedly a rowdy element and therefore, he could have been attacked by someone else. It is also contended that when the accused party had given a police complaint, based on which, a case in Crime No. 117/2011 was registered against Selvakumar for the attack on Selvaraj [father of A-1 to A-3], there was no reason for Manikandan [A-1], Iyyappan [A-2] and Babu [A-3] to attack Selvakumar. He further contended that when Selvakumar attacked the father of the accused, the accused ran away and did not retaliate, which only shows that the accused were peace-loving people. 13. We are unable to countenance the aforesaid submission. Just because the accused party had set the criminal law in motion in connection with the attack on Selvaraj by Selvakumar, it would not mean that they would not have been nursing a grudge against Selvakumar. Selvakumar was released on bail in that case and while on bail, he was attacked by the accused party. Motive is a double edged weapon, which can cut either side. In a case based on circumstantial evidence, motive may assume significance, but in a case based on direct evidence, much importance need not have to be given to motive. 14. Selvakumar was released on bail in that case and while on bail, he was attacked by the accused party. Motive is a double edged weapon, which can cut either side. In a case based on circumstantial evidence, motive may assume significance, but in a case based on direct evidence, much importance need not have to be given to motive. 14. The learned counsel for the appellants contended that Gunasekaran [P.W.-1], Suresh [P.W.-2], Vaikundarajan [P.W.3] and Muthukumar [P.W.-4] were all relatives of Selvakumar and hence, they are interested witnesses; in the absence of the prosecution examining any independent witness, the testimony of Gunasekaran [P.W.-1], Suresh [P.W.-2], Vaikundarajan [P.W.3] and Muthukumar [P.W.-4] deserves to be discarded. The answer to this submission lies in the following passage from the judgment of the Supreme Court in Dalip Singh v. State of Punjab [ AIR 1953 SC 364 ]. “26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts.” (emphasis supplied) 15. As regards the non examination of Iyyappan, Mathiyalagan and others, it is seen that for the incident which took place in the year 2011, the trial began only in the year 2018. At this juncture, it may be apposite to extract the following sapient passage of the Supreme Court in Appabhai v. State of Gujarat [ AIR 1988 SC 696 ], “11. At this juncture, it may be apposite to extract the following sapient passage of the Supreme Court in Appabhai v. State of Gujarat [ AIR 1988 SC 696 ], “11. ...Experience reminds us that civilized people are generally insensitive, when a crime is committed even in their presence...” 16. The learned counsel for the appellants contended that Gunasekaran [P.W.-1], in his evidence, has stated that the neighbour had scribed the complaint [Ex.P.-1] but the investigating officer [P.W-12] has stated that the handwriting in the complaint [Ex.P-1] is the same as that of the handwriting in the FIR and in the statement of the witnesses. Therefore, he contended that no reliance could be placed on the complaint [Ex.P-1]. 17. The learned counsel contended that there is a delay in the registration of the FIR [Ex.P-19] and there is also a consequential delay in the FIR being sent to the Court. In this case, the incident is said to have taken place around 6.55 p.m. on 09.06.2011 and Selvakumar was carried to the hospital immediately thereafter, as could be seen from the evidence of Dr.Xavier Christhurajan [P.W.-10] and Accident Register copy [Ex.P-16]. On getting information from the hospital, Balakrishnan, Sub Inspector of Police, went to the hospital, collected the complaint, reached the police station and thereafter, registered the FIR [Ex.P-19] at 22.30 hrs. on 09.06.2011, which, in the facts of this case, cannot be said to be delayed. 18. At this juncture, it is profitable to allude to the judgment in Ravinder Kumar and another v. State of Punjab [ (2001) 7 SCC 690 ] wherein, the Supreme Court has categorically held that a delayed FIR is not illegal and in fact, has also gone to the extent of holding that even an FIR registered with promptitude and dispatch is not an unreserved guarantee for it being genuine. The relevant passage from the said judgment reads as under: “The attack on prosecution cases on the ground of delay in lodging FIR has almost bogged down as a stereotyped redundancy in criminal cases, it is a recurring feature in most of the criminal cases that there would be some delay in furnishing the first information to the police. It has to be remembered that law has not fixed any time for lodging the FIR. Hence, a delayed FIR is not illegal. It has to be remembered that law has not fixed any time for lodging the FIR. Hence, a delayed FIR is not illegal. Of course, a prompt and immediate lodging of the FIR is the ideal as that would give the prosecution a twin advantage. First is that it affords commencement of the investigation without any time lapse. Second is that it expels the opportunity for any possible concoction of a false version. Barring these two plus points for a promptly lodged FIR the demerits of the delayed FIR cannot operate as fatal to any prosecution case. It cannot be overlooked that even a promptly lodged FIR is not an unreserved guarantee for the genuineness of the version incorporated therein.” (emphasis supplied) 19. The learned counsel contended that the auto driver, who carried Selvakumar to the hospital was not examined and therefore, the trial is vitiated. This submission deserves to be stated only to be rejected because ambulance drivers and auto drivers, whose services are required in such emergency situation, need not have to be compulsorily examined as witnesses, because they are not witnesses to a fact, but could, at the most say that they carried a passenger with injuries to the hospital. We have the hospital records to show that Selvakumar was admitted with multiple injuries at 7.10 p.m. in the Government hospital on the same day. 20. The learned counsel contended that though Gunasekaran [P.W.-1], Suresh [P.W.-2], Vaikundarajan [P.W.3] and Muthukumar [P.W.-4] have stated that their clothes also had bloodstains, the police have not recovered their apparel. In the cross-examination of these witnesses, they have candidly admitted that while they were carrying Selvakumar to the hospital, their clothes also got stained. Had they stated that their clothes did not get stained, then, there is scope for suspecting their testimony. However, they have clearly stated in their cross-examination that since the police did not ask them to give their clothes, they did not give them to the police. For the fault of the Investigating Officer in not collecting the clothes of Suresh [P.W.-2] and others, these witnesses cannot be faulted. 21. The learned counsel contended that the Investigating Officer had not conducted any investigation with regard to the motorcycle [M.O.-4]. This again is a remissness on the part of the Investigating Officer, for which, the witnesses cannot be blamed. 22. 21. The learned counsel contended that the Investigating Officer had not conducted any investigation with regard to the motorcycle [M.O.-4]. This again is a remissness on the part of the Investigating Officer, for which, the witnesses cannot be blamed. 22. The learned counsel strongly contended that the place of occurrence has not been properly established by the prosecution and there is a confusion with regard to the same. He took us through the rough sketch [Ex.P-20] and contended that Thammathukonam junction is half a kilometer away from Sasthan Koil Road and therefore, Gunasekaran [P.W.-1], Suresh [P.W.-2], Vaikundarajan [P.W.3] and Muthukumar [P.W.-4] could never have witnessed the incident. From the evidence of Gunasekaran [P.W.-1], Suresh [P.W.-2], Vaikundarajan [P.W.3] and Muthukumar [P.W.-4], it is seen that they were drinking tea in the tea shop of one Murugesan, which is on the Rajakkamangalam Road near the junction of Rajakkamangalam Road and Sasthan Koil Road. The incident had not taken place in Thammathukonam junction, but the whole area is referred to as Thammathukonam. 23. The learned counsel contended that in the rough sketch, the tea shop of Murugesan has not been specifically shown. On a perusal of the rough sketch [Ex.P-20], the shop and house of Murugesan is shown, but it is true that the same has not been specifically shown as tea shop. When the Investigating Officer [P.W.12] was asked in the cross-examination as to whether there was a Dalmia cement shop on the north of the place of occurrence, he has stated that the said shop is on the north western side. To a further question as to whether there was any other shop, he has answered that there was a house and shop of Murugesan, which he has noted in the rough sketch [Ex.P-20]. The defence themselves have asked him as to whether he [P.W.-12] has specifically stated in the rough sketch that the shop of Murugesan is a tea shop, for which, the Investigating Officer [P.W.-12] has replied that he has not specifically stated so. It is relevant to extract the relevant portion of the cross-examination of the Investigating Officer [P.W.-12]: “TAMIL” 24. From the above, it is clear that the Investigating Officer has shown the Dalmia Cement Shop and the house cum shop of Murugesan in the rough sketch [Ex.P-20]. It is relevant to extract the relevant portion of the cross-examination of the Investigating Officer [P.W.-12]: “TAMIL” 24. From the above, it is clear that the Investigating Officer has shown the Dalmia Cement Shop and the house cum shop of Murugesan in the rough sketch [Ex.P-20]. Just because, he had not specifically stated that the shop of Murugesan is a tea shop, it would not lead to the inference that there was no tea shop of Murugesan, as contended by the learned counsel for the appellants. 25. We find that the defence was not able to make any serious dent in the testimony of Gunasekaran [P.W.-1], Suresh [P.W.-2], Vaikundarajan [P.W.3] and Muthukumar [P.W.-4] with regard to the attack mounted on Selvakumar by Manikandan [A-1], Iyyappan [A-2] and Babu [A-3]. 26. The fact remains that after the incident, Manikandan (A-1), Iyyappan (A-2), Babu (A-3) and Subash @ Kannan [A-4] voluntarily surrendered before the Judicial Magistrate, Padmanabhapuram, which was not the jurisdictional Court of Magistrate and this cannot be ignored. 27. In the result, we find no merit in this appeal and the same is dismissed. The respondent police is directed to secure the presence of the appellants and commit them to prison to undergo the remaining period of sentence.