Durai, Durai @ Sudalai and Ramakrishnan @ Durai vs State

M. Chockalingam, J.—This judgment shall govern both the Criminal Appeal Nos. 128 of 2005 and 131 of 2005.

The appellants, who are accused Nos. 1 to 3, stood charged, tried for the offences under Sections 120(b), 341 and 302 r/w 109 IPC and found guilty under Sections 341 and 302 IPC and awarded one month simple imprisonment u/s 341 IPC and life imprisonment u/s 302 IPC and the sentence to run concurrently in a case in S.C. No. 42 of 2004 by judgment dated 28.02.2005 by the Sessions Division, First Additional District Court, have brought-forth these appeals seeking to set aside the conviction and sentence imposed on them. Criminal Appeal (MD) No. 128 of 2005 has been brought-forth by the third accused while Criminal Appeal (MD) No. 131 of 2005 has been brought-forth by accused No. 1 and 2. The fourth accused in the said Sessions Case has been acquitted of all the charges levelled against her.

The short facts necessary for the disposal of the appeals can be stated thus:

(a) PW.1 is the wife of Sekar since deceased in the incident. Husband of the fourth accused was murdered. There was accusation against the said Sekar on that count. A-4 was aggrieved over the said Sekar and hatched up a conspiracy.

(b) On 28.10.2003 at 6.00 p.m., when PW.5 and PW.6 were coming for washing their clothes towards, a newly Pillaiyar Temple, being constructed, they heard a noise and they found that A-4 was instructing to A-1 to A-3 to finish the said Sekar as he had killed her husband, for which, they assured her to finish him of. PW.5 and PW.6, in turn, informed the same to PW.7.

(c) On 29.10.2003, PW.1 and her husband Sekar went to Keeizhapattam for seeing a bride for her cousin. At about 4.30 p.m., they reached a workshop of PW.8, after a while both them were returning to their house by bicycle and at about 6.30 p.m., when they were coming near "Theneerkulam Water Tank" all these three accused armed with Aruval waylaid and pushed them down from the bicycle. Immediately, A-1 cut the said Sekar on the neck, A-2 cut on the face and A-3 cut on the chest and when PW-1 intervened, they threatened her and she escaped with a grip of fear and proceeded to the village to inform to PW.2 and PW.3. At that time, when PW.11 was on patrol duty at Annasalai of Thatchanallur, he was informed by a third party that one person was lying in a pool of blood struggling for his life with serious injuries near the place of occurrence.

(d) On coming to know about the same, PW.11 reached over the place and found the injured with severe injuries and he asked about his name and his father''s name and phoned over to the respondent police. Immediately, he took the injured in an auto of PW.4, to the Tirunelveli Medical College and Hospital, where PW.12 was the Doctor on duty at 7.10 p.m.,. He medically examined the injured Sekar and noted the injuries sustained by the injured Sekar and prepared Wound Certificate, which was marked as Ex.P.4.

(e) In the mean time, PW.1 to PW.3 came to the place of occurrence and they were informed that the injured was taken to the Highground Hospital and they returned to the hospital.

(f) Thereafter, an intimation was sent to the respondent police from the hospital and accordingly, PW.19, the Sub Inspector of Police, proceeded to the Tirunelveli Government Hospital and also recorded the statement from PW.1 and the same was marked as Ex.P.1.

(g) Apart from that, on receipt of death intimation of the injured Sekar, which was marked as Ex.P.5, PW.19, the Sub Inspector of Police registered a case in Crime No. 1516/2003 u/s 342, 302 and 120(b) IPC. The F.I.R. is Ex.P.14, which was despatched to the Court.

(h) On 29.10.2003, PW.21, the Inspector of Police, on receipt of the copy of the First Information Report, took up investigation in the crime and proceeded to the scene of occurrence, made inspection and prepared an Observation Mahazar Ex.P.16 and Rough Sketch Ex.P.17 in the presence of witnesses and he recovered the material objects found in the place of the occurrence. Thereafter, on 30.10.2003, he went to the Government Hospital and conducted inquest on the dead body of the deceased and prepared an Inquest Report, which was marked as Ex.P.20. Following the same, the dead body of the deceased was sent for the purpose of autopsy.

(i) On receipt of the requisition, PW.13 the Doctor, attached to the Government Hospital, Tirunelveli conducted autopsy on the dead body of the deceased and found injuries. The doctor issued post-mortem Certificate, which was marked as Ex.P.6 wherein he opined that the deceased would appear to have died of shock and haemorrhage due to cumulative effect of heavy cut injuries in the region of face, head, neck and both upper limbs.

(j) Pending investigation, the accused were arrested on 20.10.2003. All these three accused came forward to give confessional statements in the presence of witnesses and the same was recorded separately and the admissible portion of the confessional statements were marked as Ex.P.20, Ex.P.21 and Ex.P.22 respectively. Pursuant to the admissible portion of the statements, A-1 produced MO.10, A-2 produced MO.11 and A-3 produced MO.13 and they were recovered under Mahazars Ex.P.11, Ex.P.12 an Ex.P.13 respectively.

(k) On completion of investigation, final report was filed against the accused and the case was committed to the Court of Sessions and necessary charges were framed against the accused.

In order to substantiate the charges levelled against the accused, the prosecution marched 21 witnesses, marked 22 Exhibits and 12 MOs. On completion of the evidence on the side of the prosecution, the accused were questioned u/s 313 Cr.P.C. as to the incriminating circumstances found in the evidence of the witnesses. The accused denied them as false. No defence witness was examined. The trial Court, after hearing the arguments on either side and on scrutiny of the materials available before it, found the accused 1 to 3 guilty and awarded punishments referred to above and the fourth accused was acquitted of the charges and hence, these appeals at the instance of the accused 1 to 3.

Learned Counsel appearing for the first accused/1st appellant in Crl.A. No. 131 of 2005, inter alia submit that, in the instant case PW.1 was the only eye witness and even according to the prosecution, PW.1 could not have seen the occurrence at all and hence her evidence should have been rejected. If PW.1 had actually scene the occurrence and, that too, in an occurrence in which her husband was brutally attacked, she would have gone to the police station or should have taken the injured to the hospital but she had not done so. It is pertinent to note that PW.1 went to her native place, which is 11/2 Kms far away from the scene of occurrence, by boarding a bus and though she went across the police station either in the course of going to her native place or going to the hospital, she had not informed the same to the police. Even PW.2 and PW.3 who were informed of the crime, though came across police station, in the course of going to hospital, no one had entered the police station and informed the same. This strong circumstance itself doubts the evidence of PW.1.

Added further the learned Counsel that according to PW.1, the distance between the police station and the place of occurrence was only 4 feet, according to the Investigating Officer, the distance is 3/4th KM and according to F.I.R, the distance is 11/2 KM. All would raise a doubt that whether the occurrence had taken place at all in that area at that time as put-forth by the prosecution. When the occurrence had taken place in a busy locality, it would have been witnessed by a number of persons. If it be so, no independent witness was examined. Apart from that, the trial Court was not prepared to accept the evidence of the same witness in respect of the conspiracy. In the instant case, conspiracy was also connected to the motive. When the trial Court had rejected the evidence of PW.1 as to the conspiracy, the entire evidence edifies the case of the prosecution as failed and hence, the trial Court should not have accepted the evidence of PW.1 and on the basis of the same, should not have found the accused guilty.

Added further the learned Counsel that, Ex.P.4 is the Wound Certificate. As could be seen that, it was the Constable PW.11, who had admitted the deceased Sekar in the Hospital. According to PW.11 Constable, when he was in patrol at Annasalai of Thatchanallur, in the evening on the date of occurrence, he was informed of the occurrence by a third person and then, PW.11 went to the scene of occurrence and took the deceased Sekar to the Highground Hospital and he informed to the Doctor about the occurrence. The person who informed about the incident to PW.11, should have been examined but he was not examined in the instant case. These are nothing but a drama enacted for the purpose of prosecution case, which should have been rejected outrightly by the trial Court.

Added further the learned Counsel that it is also highly doubtful whether the F.I.R would have come into existence as put-forth by the prosecution. The person who informed about the occurrence to PW.11 was not examined. Even according to PW.11, he informed the incident to PW.19, the Sub Inspector of Police, who was coming on the way, when PW.11 was proceeding to the Hospital. If it be so, a case could have been registered immediately after the information was given by PW.11 but the case was not registered. All would go to show that the case came to be registered only after arrival of PW.1 to PW.3 and with all embellishments, the case registered against A1 to A4 on the basis of the complaint given by PW.1 as if she had witnessed the incident.

Added further the learned Counsel that A1 to A3 had no motive. The lower Court rejected the case of conspiracy and if it be so, the only person who had got the real motive was A-4 because according to her, her husband was killed by the deceased Sekar and she was acquitted. In such circumstances, the trial Court should have rejected the prosecution case outrightly as there was no motive to the occurrence. Thus, A-1 is entitled for acquittal in the hands of this Court.

Advancing his arguments, learned Counsel appearing for the third accused, would submit that, the name of the third accused does not find place in the F.I.R. and even according to PW.1, A-3 caused injury on the left side of the chest with Aruval but there was no corresponding injury either in Accident Register Copy Ex.P.4 or in the post-mortem Certificate Ex.P.6 and further PW.1 has not correctly accounted for the injuries sustained by the deceased and thus, PW.1 could not have seen the occurrence at all or A-3 could not have participated in the occurrence.

Added further the learned Counsel that no injury was attributed against A-3 and even as per the post-mortem Certificate, injuries sustained on the head, neck, face and arms were fatal. As could be seen, A-3 had inflicted injury on the left chest, which was not fatal and this point has got to be considered by this Court. Added further the learned Counsel that A-3 had no motive to cause the death of the deceased Sekar.

Advancing his arguments, learned Counsel appearing for the second accused, would submit that all the blood stained weapons and Material Objects were not subjected to chemical analysis, which would be fatal to the prosecution case. Insofar as A-2 is concerned, he had no motive to commit such crime and the prosecution has failed to prove the same.

Added further the learned Counsel that u/s 313 Cr.P.C., A-2 had stated that he was taken from his house at 2.00 a.m. and that his part of statement was not free from force before the Court. Under the circumstances, A-2 is entitled for acquittal in the hands of this Court.

The Court heard the learned Additional Public Prosecutor appearing for the State on the above contentions.

The Court paid its anxious consideration on the rival submissions made and also had a thorough scrutiny of the materials available.

In the instant case, it is not in controversy that one Sekar, the husband of PW.1 sustained injuries in the occurrence took place at the time and at the place as put-forth by the prosecution and the injured was taken to the Highground hospital, where he was admitted by PW.12 Doctor, following which, he succumbed to injuries and the case came to be registered under the penal provisions of murder and the dead body was subjected to post-mortem and the Doctor, who conducted autopsy opined that he died out of shock and haemorrhage due to injuries sustained on the neck, face and arms and the prosecution has proved that the said Sekar died out of homicidal violence. The accused have also not disputed the cause of death of the deceased either before the trial Court or before this Court. On the medical evidence, this Court holds that the deceased died on account of homicidal violence.

In order to substantiate the accusation made against these appellants, the prosecution has examined only one eye witness viz., PW.1. It i also true, she is the wife of the deceased Sekar. It is a well settled proposition of law that merely on the ground relationship, the evidence of eye witness, who is a relative cannot be discarded but where the eye-witness is a close relative of the deceased, the court has to exercise great care and caution and on careful scrutiny of the evidence, this Court thoroughly satisfied with the evidence of PW.1 and the evidence of PW.1 has inspired the confidence of the Court. PW.1 has categorically narrated that on the date of occurrence at 4.30 p.m., both of them left their house for seeing a bride for her cousin and they went to a workshop of PW.8, after a while both them were returning to their house, at that time, all these three accused were waylaid and pushed them down from the cycle. Immediately, A1- cut the said Sekar on the neck, A-2 cut on the face and A-3 cut on the chest and when PW-1 intervened, they threatened her and she escaped with a grip of fear and proceeded to the village and informed to PW.2 and PW.3 and took them to the spot.

The contention put-forth by the learned Counsel for the appellants that PW.1 could not have seen the occurrence, if considered, it remains only for the purpose of rejection. At the place of occurrence, PW.1 and her husband Sekar were only two persons. The place of occurrence was a road leading to the main road from Tirunelveli to Thatchnallur. The contents what is contained in the Rough Sketch was never disputed; on one side of the road was Kanmoi and other side was agricultural fields. It would be quite clear that at the time of occurrence PW.1 and her husband were waylaid and the accused attacked the deceased with deadly weapons and when she intervened she was also threatened. It is pertinent to note that she was a woman folk, she was unarmed and was threatened, under the given circumstances, one would not naturally expect a woman to be remained at the place of occurrence when she was under a grip of fear and terror seeing the attack made by the accused with deadly weapons so naturally she escaped from the place of occurrence and went to bring her relatives to the spot, which was 11/2 kms distance from their village. At this juncture, it is pertinent to note the evidence of PW.8, which says that PW.1 had accompanied her husband the deceased Sekar. In his evidence PW.8 says that the deceased Sekar came inside his workshop and he informed him that his wife was waiting outside and after a while, he came out of the shop and took her with him.

The contention of the learned Counsel that immediately after the occurrence she should have gone to the police station, which was situated on the way and even PW.2 and PW.3 had not gone to the police station cannot be countenanced for the simple reason that already she was under a grip of fear and terror and nobody was to help her and hence she went to her village to bring her relatives to the spot and accordingly, PW.1, PW.2 and PW.3 came to the spot but they were informed that the injured was taken to the hospital and immediately, they rushed to the hospital. In his evidence of PW.11 Constable, he has deposed that on the date of occurrence when he was on patrol duty, was informed by a third person that one person with serious injuries was lying in a pool of blood at the place of occurrence. Immediately, he came to the spot, saw the injured in a serious condition and asked his name and his father''s name and he took him to the hospital. The injured said his name as Sekar and his father''s name alternatively as Anthony, Rajamani. Ex.P.4 the A.R. Copy, which was prepared by PW.12 Doctor, who examined the injured in the hospital at the time of admitting, also finds the name of the injured and name of his father as deposed by PW.11. Naturally, the wound Certificate Ex.P.4 is without any embellishments. Thereafter, PW.1 brought PW.2 and PW.3 to the place of occurrence and immediately, they returned to the hospital where the injured was admitted and the Sub Inspector of Police recorded the statement from PW.1, which is the basis for the whole case and the case case came to be registered straight away for the offence u/s 302 IPC since the said Sekar already died. In the instant case, the evidence of PW.1 viewing from in any corner, cannot be seen with any doubt and the way in which she has narrated the entire evidence in a graphical manner cannot be narrated by a person who had not seen the occurrence. Thus, the contention put-forth by the learned Counsel for the appellants has got to be rejected.

With regard to the contention, put-forth by the learned Counsel for the appellants that medical evidence did not corroborate the ocular testimony, cannot be countenanced. According to PW.1, the first accused attacked the deceased Sekar on the neck, the second accused on the face and the third accused on the chest. Corresponding injuries are found in the Accident Register Copy Ex.P.4 as well as in the post-mortem Certificate Ex.P.6. With regard to the contention that PW.1 did not account for all other injuries, it is pertinent to note that in a given situation when her husband was attacked by the three accused armed with arrivals and her husband was unarmed, no reasonable man or prudent man would expect her to count the attack and injuries sustained. She has naturally spoken about the attack and the injuries sustained by the deceased. The medical evidence canvassed by PW.12 and the post-mortem certificate would clearly in support of the prosecution case. The evidence of PW.1 has inspired the confidence of the Court.

Added further the learned Counsel for the appellants that the arrest of the three accused and their confessional statements Exs.P.20, 21 and 22 respectively and pursuant to their confession, recovery of MOs.10, 11 and 12 are subsequent introductions in the case and the Material Objects recovered were not subjected to chemical analysis, which is fatal to the prosecution case.

It is a flaw committed by the Investigating Officer. In a given case like this, the Investigating Officer must have sent the Material objects for chemicals analysis but he had failed to do so. At the same time, the Court is of the considered opinion that, this part of non-examination of the Material Objects by the medical evidence itself will not be fatal to the prosecution case. Since, in the instant case, the prosecution has rested its case not only on circumstantial evidence but also on the direct evidence through PW.1, which has inspired the confidence of the Court as narrated above. In the investigation process, the prosecution has proved that the accused had waylaid the deceased and attacked him with aruvals and caused his death.

Coming to the question of act of the accused, the contention put-forth by the learned Counsel for the third accused that the accused had no motive and the third accused inflicted injury on the chest and this injury is not fatal, has got to be considered by this Court. The Court is of the considered opinion that, in the instant case, all the three accused waylaid the deceased, armed with aruval attacked him in a common intention to cause death and thus, they shared the act of committing the crime.

The question of grievous injury or simple injury, fatal or non-fatal, vital or not vital organs will not arise in this case, when all the three accused, who were the appellants herein gathered together and shared the common intention of causing death and so caused the death of the deceased Sekar.

The trial Court has perfectly correct in finding the three accused guilty and awarding the punishments referred to above. The Court without disturbing the judgment of the trial Court either on facts or legal proposition can confirm the same and accordingly confirmed. Both the appeal fail and the same are dismissed.