Damu alias Damodharan and Others vs State

M. Karpagavinayagam, J.—The appellants/A-1 to A-6 were convicted for the offences under Sections 148 and 302 read with 34 IPC and

each sentenced to undergo three years rigorous imprisonment and life imprisonment respectively, for having attacked the deceased Sukumaran on

his head, resulting in his death. In addition to this, A-5 was convicted for the offence u/s 324 IPC and sentenced to undergo three years rigorous

imprisonment, for having caused injury on P.W.1 Baskar. These convictions and sentences are the subject matter of challenge before this Court in

this appeal filed by all the accused, namely A-1 to A-6.

Short facts leading to the conviction could be summarised as follows:

(a) The deceased Sukumaran was carrying on money lending business. P.W.1 Baskar is his younger brother, doing work as Painter in a paint

company. A-1 and A-6 are brothers and other accused are their associates.

(b) After finishing his work of collecting money from various persons, the deceased Sukumaran was returning home along with his brother P.W.1

Baskar on 17.3.1993 at about 10.30 p.m. While they were walking near Muniandi Vilas (an Hotel), A-1 to A-6, with deadly weapons, suddenly

appeared at the scene.

(c) A-5 Shankar instigated the other accused to attack the deceased Sukumaran, as he was the informant to the Police complaining against the

accused. Then, all the accused began to attack the deceased in the presence of P.W.1 Baskar. A-5 Shankar cut the deceased with a knife and

caused injury on his left hand. A-1 Damu @ Damodaran caused injury again on the left hand of the deceased. Thereafter, all the accused gave

indiscriminate cuts on the head of the deceased, due to which, the deceased fell down. Then, all the accused gave cut on the leg of the deceased.

(d) P.W.1 Baskar cried aloud asking the accused as to why they attacked his brother, the deceased. A-5 Shankar attacked P.W.1 with the knife,

causing injury on his head. P.W.2 Kumari, the wife of the deceased, was coming on the way in search of her husband, who did not turn up in time.

P.W.2 also witnessed the occurrence. Then, when P.Ws.1 and 2 cried aloud, all the accused ran away from the scene of occurrence.

(e) When the deceased was gasping for life, P.W.1 took the deceased in an auto and brought him to the hospital. On 17.3.1993 at about 11.15

p.m., P.W.6 Dr. Muniappan admitted the deceased and declared him dead. Then, he sent Ex.P-9 death intimation to the Police. He treated P.W.1

Baskar at about 11.15 p.m. Ex.P-10 is the accident register relating to the injuries caused on P.W.1.

(f) On receipt of the message, P.W.14 Inspector of Police went to the hospital and recorded Ex.P-1 statement from P.W.1. Then, a case was

registered against all the accused for the offences under Sections 147, 148, 341, 324 and 302 IPC. After arranging for sending the F.I.R. copy

and the complaint to the Court, he went to the scene of occurrence.

(g) On 17.3.1993 mid-night, at about 1.00 a.m., P.W.14 Inspector of Police visited the spot and prepared observation mahazar and drew rough

sketch. He also observed all the other formalities. Then, he conducted inquest. During the course of inquest, P.Ws.1 and 2 and other witnesses

were examined. Thereafter, he arranged for sending the dead body for post-mortem.

(h) On 18.3.1993, P.W.7 Dr. Thaheera Begum commenced post-mortem and found 20 injuries on the body of the deceased. She gave her

opinion in Ex.P-12 post-mortem certificate that the deceased would appear to have died of shock and haemorrhage due to the multiple extensive

incised wounds on the head.

(i) On 19.3.1993, A-1 to A-3 surrendered before the Court. After police custody, the knives were recovered from them. On 29.3.1993, A-6

surrendered before the Court. The Police custody was obtained and on the confession of A-6, one more knife was recovered. On 5.4.1993,

P.W.14 Inspector of Police arrested A-4 and A-5 and on their confession, the other knives were recovered. Thus, M.Os.4 to 9, the knives were

recovered from the respective accused persons. (j) P.W.14''s successor Inspector of Police took charge and completed further investigation.

Ultimately, he filed the charge sheet against all the accused for the offences under Sections 147, 148, 302 read with 34, 324 and 324 read with

149 IPC.

(k) During the course of trial, P.Ws.1 to 14 were examined, Exs.P-1 to P-28 were filed and M.Os.1 to 12 were marked.

(l) The plea of the accused while they were questioned u/s 313 Cr.P.C., was one of total denial.

(m) Ultimately, the trial Court convicted all the accused for the offences under Sections 148 and 302 read with 34 IPC in respect of having caused

the death of the deceased and also convicted A-5 for the offence u/s 324 IPC in respect of the injury caused on P.W.1 and sentenced them as

stated above. Hence, this appeal.

Mr. Doraisamy, learned Senior Counsel for the appellants would elaborately take us through the entire evidence and contend that the

prosecution case would fail, since the independent witnesses turned hostile and the interested witnesses have not come with clean hands and as

such, the prosecution case is liable to be rejected.

The gist of the submissions made by learned Senior Counsel for the appellants is as follows:

(a) Admittedly, there is no motive for the accused to attack the deceased and P.W.1.

(b) The presence of P.W.1 Baskar is doubtful. He is an interested witness, who is none else than the brother of the deceased. P.W.1, in the

earliest document, namely Ex.P-10 accident register, said that he was attacked by six known persons with metal sticks, which is contradictory to

the prosecution case.

(c) P.W.6 Doctor also would state that P.W.1 would not have been attacked with the material objects, namely the knives.

(d) The conduct of P.W.1 in not intervening in the attack made on the deceased by the accused would create suspicion.

(e) Even though the workers in Muniandi Vilas (hotel) were examined, they did not support the prosecution case.

(f) P.W.2 is not a reliable witness, as her name has not been mentioned in Ex.P-1 complaint. Further, P.Ws.2''s evidence cannot be relied upon, as

she did not make any effort to take the deceased to the hospital.

(g) Admittedly, the occurrence took place on 17.3.1993 at 10.30 p.m. and the statement was recorded from P.W.1 at 11.25 p.m. in the hospital.

The F.I.R. which was registered at about 12.10 in the mid-night, reached the Magistrate only at 6.00 a.m. next day morning. Therefore, there is

delay in the F.I.R. reaching Court and the same has not been explained.

Justifying the grounds of conviction imposed on the accused by the trial Court, learned Additional Public Prosecutor would point out various

portions of evidence and contend that the infirmities pointed out by learned Senior Counsel for the appellants, would not affect the core of the

prosecution case, since the evidence of P.Ws.1 and 2 is cogent and the same is also corroborated by the other materials. As such, there is no

reason to hold that the conviction imposed on the accused by the trial Court is wrong. He would also cite some authorities to substantiate his plea.

We have given our thoughtful consideration to the respective submissions made by the learned counsel for the parties and also gone through the

records.

At the outset, it shall be stated that we are not impressed by the evidence of P.W.2, who is the wife of the deceased. According to prosecution,

when P.W.1 Baskar and the deceased Sukumaran were returning home, they were attacked by all the six accused persons. As per P.W.2''s

evidence, she also witnessed the entire occurrence. P.W.1 Baskar took the deceased in the auto and then brought the deceased to the hospital at

about 11.15 p.m. P.W.6 Doctor, after declaring his death, sent the death intimation Ex.P-9 to the Police. P.W.14 Inspector of Police, on receipt

of the message, rushed to the hospital and recorded the statement of P.W.1 at about 11.30 p.m.

According to P.W.2, she also came in another auto and reached the hospital at about 10.45 p.m. Admittedly, P.W.2''s presence has not been

mentioned by P.W.1 Baskar in Ex.P-1 complaint, which was recorded at about 11.45 p.m., even though it is stated that P.W.2 reached the

hospital at about 10.45 p.m. Further, when P.W.14 Inspector of Police has been cross-examined, he would admit that P.W.1 did not mention

about the presence of P.W.2 at the time when he was examined during the course of investigation.

It is also noticed from the evidence of P.W.2 that the deceased used to come home every day at about 9 p.m., and since he did not return home

in time, she chose to go to the road-side in order to see as to whether her husband, the deceased, is coming back. The occurrence took place at

about 10.45 p.m. P.W.14 Inspector of Police in his cross-examination, would admit that from his investigation, he came to know that P.W.2 came

that side incidentally.

It is true, as pointed out by learned Additional Public Prosecutor, that P.W.1 speaks about the presence of P.W.2 in his deposition and P.W.2

also would speak about the presence of P.W.1 in her deposition. But, that does not make this Court to place reliance on the evidence of P.W.2,

since P.W.2, being the wife of the deceased, did not make any effort to intervene in the attack or to take the deceased to the hospital, who was in

a very serious condition. On the other hand, she would state that she came to the hospital in another auto at about 10.45 p.m. If P.W.1 really saw

P.W.2 in the occurrence and in the hospital before the statement was recorded, P.W.1 would have very well said about her presence in Ex.P-1

complaint or in the statement made to the Police. This is not done. Therefore, we are not able to place much reliance on the evidence of P.W.2.

Even at this stage, when this aspect was confronted with the learned Additional Public Prosecutor, he would submit that even assuming that

P.W.2 came late, the fact remains that she was able to see one part of the occurrence and that was the reason for her coming to the hospital later.

If it is true, then it should be taken that P.W.2 has not seen the entire occurrence. Therefore, we have no hesitation to eschew the evidence of

P.W.2 with reference to the occurrence which took place in front of Muniandi Vilas (Hotel). At the same time, it is to be stated that merely

because we are discarding the evidence of P.W.2, it cannot be stated that the other evidence should be completely rejected.

The narration of the incident as mentioned in Ex.P-1 complaint and the deposition of P.W.1, would make it obvious that the occurrence must

have taken place in the manner as alleged by P.W.1.

According to P.W.1, after finishing their work, both the deceased and P.W.1 returned home and on their way, all the accused appeared in the

scene of occurrence and attacked the deceased. There are about 20 injuries on the deceased. P.W.7 Doctor, who conducted post-mortem on the

body of the deceased, would state that all the injuries could have been caused by the weapons recovered from the accused. As a matter of fact,

P.W.1 is an injured witness. According to P.W.1, he was also attacked.

Much was said about the conduct of P.W.1. Merely because he had not intervened while the attack was going on, it cannot be said that the

conduct of P.W.1 in keeping quiet is artificial. It all depends upon the mental attitude of the person who saw the occurrence. Here is a case, where

under his very nose, his brother was attacked by these six accused persons in the main bazaar opposite to the hotel in the presence of public. In

such a situation, any person who is very closely related to the deceased, would have felt dumb-founded or spell-bound on seeing the shocking

scene. Therefore, the absence of immediate reaction by P.W.1, would not make his evidence doubtful. On the other hand, after the deceased fell

down, he was able to realise as to what had happened and then he questioned the accused as to why they attacked. Thereafter, A-5 attacked

P.W.1 also.

It was vehemently contended that the earliest document, namely Ex.P-10 accident register relating to the injuries sustained by P.W.1, would

show that P.W.1 told P.W.6 Doctor that he was attacked by six known persons with metal sticks, which is contradictory to the prosecution case.

It is true that P.W.6 Doctor would state that he was told by P.W.1 Baskar that he was attacked by six known persons with metal sticks. But, the

fact remains that at the same time, between 11.00 p.m. and 11.15 p.m., P.W.6 Doctor prepared Ex.P-8 accident register relating to the death of

the deceased, sent Ex.P-9 death intimation to the Police and also prepared Ex.P-10 accident register relating to the injuries sustained by P.W.1.

So, the evidence of P.W.1 Baskar, Ex.P-1 complaint and Exs.P-8,9 and 10, the accident register relating to the death of the deceased, the death

intimation and the accident register relating to the injuries sustained by P.W.1 respectively, all would show the case of P.W.1 that the attack was

made by six known persons.

The statement given to P.W.6 Doctor who recorded the same in the accident register while mentioning the injuries sustained, would not be

considered to be an F.I.R. or the complaint which contains all the ingredients of the offence. Only the Doctor under the medico-legal theory is

expected to record the injuries in the accident register as soon as the victim is admitted and shall also mention about the number of persons

involved, about the identity of the persons and the weapons used. In that context, it could be very well taken that P.W.1 wanted to say that totally

six persons had involved in the attack and they used the metal sticks.

As correctly pointed out by learned Additional Public Prosecutor, from Ex.P-1 complaint, it is seen that no metal stick was used by any of the

accused. On the other hand, the weapons, namely M.Os.4 to 9 knives were recovered by P.W.14 Inspector of Police on the confession of the

respective accused. P.W.7 Doctor, who conducted post-mortem, also would state that the injuries sustained by the deceased could have been

caused by these M.Os.4 to 9.

It is true that with regard to the injury caused on P.W.1 Baskar, P.W.6 Doctor would say that the knife would not have caused these injuries.

It all depends upon the fact situation as to how the knife had been handled by the accused while causing the injuries. Merely because the medical

testimony does not corroborate the ocular testimony, we cannot on that score, reject the ocular testimony, which has been adduced by P.W.1

Baskar. As such, we cannot conclude that the presence of P.W.1 is doubtful, especially when he is the injured witness.

Further, P.W.1''s conduct is very natural in taking the deceased to the hospital immediately to save the life of the deceased. He was interested

in not giving a complaint or the other to the Police Station by taking the deceased to the Police Station for the purpose of implicating some

accused. On the other hand, P.W.1 was very particular in taking the deceased immediately to the hospital, where he was admitted and there,

treatment was also given to P.W.1 by P.W.6 Doctor.

The workers at Muniandi Vilas (Hotel) who were examined as witnesses, naturally will turn hostile, as we cannot expect that those people will

come forward with truth. As such, the mere fact that they have become hostile witnesses, would not make the evidence of P.W.1 unreliable.

It was pointed out that the statement was recorded from P.W.1 at 11.25 p.m. on 17.3.1993, but the F.I.R. reached the Magistrate concerned

only at 6.00 a.m. next day. In our view, there is no delay at all in the F.I.R. reaching the Magistrate. The occurrence took place at about 10.30

p.m. P.W.14 Inspector of Police, on receipt of information, came to the hospital and recorded the statement from P.W.1 at about 11.25 p.m. and

at 12.00 mid-night, he came to the Police Station and registered the F.I.R. He also deputed a Sub-Inspector of Police to go to the house of the

Magistrate and hand over the F.I.R. According to the prosecution, the Sub-Inspector of Police went to the house of the Magistrate and handed

over the F.I.R. at about 6.00 a.m. next day. Thus, there is no delay in the F.I.R. reaching the Magistrate. Even assuming that there is delay, it

cannot be said that the same would affect the case of the prosecution, especially when this Court holds that the evidence of P.W.1 is corroborated

by other materials and the same is credible and reliable.

In this context, we may refer to the observations of the Supreme Court in Alla China Apparao and Others Vs. State of Andhra Pradesh, ,

which reads as follows:

... .... A question that now arises is that where first information report is shown to have actually been recorded without delay and investigation

started on its basis, if any delay is caused in sending the same to the Magistrate which the prosecution fails to explain by furnishing reasonable

explanation, what would be its effect upon the prosecution case. In our view, ipso facto the same cannot be taken to be a ground for throwing out

the prosecution case if the same is otherwise trustworthy upon appreciation of evidence which is found to be credible. ....

On similar lines, the Supreme Court would hold in 2002 SCC (Cri) 728 (Ashok Kumar Pandey vs. State of Delhi) as follows:

.... .... In our view, even in cases where there is some delay in dispatch of the first information report to the court and its receipt by it, that alone

can in no case be taken to be a ground for throwing out the prosecution case if otherwise the same is proved by unimpeachable evidence.

However, in cases where the court otherwise doubts the veracity of the prosecution case, this may be taken to be one of the grounds to discard

the same.

In view of the above observations made by the Supreme Court, we have no hesitation to hold that there is no delay in the F.I.R. reaching the

Court and even assuming that there is delay, that would not affect the core of the prosecution case, in view of the fact that the prosecution case is

proved by the unimpeachable evidence adduced by P.W.1.

Yet another argument advanced by learned Senior Counsel for the appellants is that there is no motive for the accused to attack the deceased.

The ""motive"" is a double-edged weapon. Motive can be used by the prosecution to falsely implicate the accused and in the same way, the accused

also can have motive to attack the deceased. It is stated by learned Senior Counsel that, according to prosecution, the deceased and P.W.1 were

informants to give information to the Police about the accused, but this has not been clearly proved by the prosecution.

On going through Ex.P-1 complaint and the evidence of P.W.1 Baskar, it is clear that while the attack was made on both P.W.1 and the

deceased, A-5 instigated the other accused to attack the deceased, since he was the informant to the Police. But, P.W.14 Inspector of Police has

failed to collect proper evidence from the other witnesses or produce relevant records to show as to what were the complaints pending against the

accused and on whose complaint, the accused were enquired by the Police. As such, this Court is to hold that the motive aspect has not been

established.

It is well settled that merely because the motive aspect has not been established, that may not be a ground to reject the evidence of ocular

witness, who is reliable and whose evidence is trustworthy.

In this context, it would be worthwhile to refer to the decision of the Supreme Court reported in 2004 SCC (Cri) 149 (Balram Singh vs. State

of Punjab) with reference to the amount of impact on the credibility of the prosecution case. Following is the relevant observation of the Supreme

Court in that decision:

As noted above, learned counsel then contended that the motive alleged by the prosecution is very weak. This again would depend upon the

evidence produced by the prosecution in regard to the actual incident. If the incident in question as projected by the prosecution is to be accepted

then the presence or absence of a motive or strength of the said motive by itself also will not make the prosecution case weak. .. ...

The abovesaid observation of the Supreme Court, in our view, would apply on all fours to the present facts of the case.

For the reasons stated above, there is no merit in the appeal and consequently, the same is dismissed, confirming the conviction and sentence

imposed on the appellants/accused. Since all the accused are on bail, the trial Court is directed to take steps to secure their custody to undergo the

remaining period of sentence.