E. Kumar alias Vembadian vs State

M. Chockalingam, J.—Challenge is made to the Judgment of the Sessions Division, Tirunelveli, dated 28.8.2007 made in S.C. No. 25 of 2007 whereby the appellant herein was ranked as A.1, along with three others ranked as A.2 to A.4, stood charged under Sections 341, 302 r/w 34 and 506 (2) of the IPC and A.2 to A.4 stood charged under Sections 341 and 302 r/w 34 IPC. On trial, A.1, who is the appellant herein, was found guilty as per the charges and awarded life imprisonment and fine of Rs. 10,000/- with a default sentence of two years rigorous imprisonment u/s 302 IPC; one month rigorous imprisonment and fine of Rs. 500/- with a default sentence of 15 days rigorous imprisonment u/s 341 IPC and one year rigorous imprisonment and fine of Rs. 1,000/- with a default sentence of six months rigorous imprisonment u/s 506(2) IPC. The sentences are directed to run concurrently. A.2 to A.4 were convicted u/s 341 IPC and awarded each one month rigorous imprisonment and fine of Rs. 500/- in default to undergo 15 days rigorous imprisonment and they were acquitted of the charges u/s 302 IPC r/w 34 of the I.P.C.,.

The short facts that are necessary for the disposal of this appeal can be stated thus:

(i) PW.1, PW.2, PW.3, PW.4 and PW.11 and the deceased were the residents of Ambedkar Colony in Karukurichi. The accused also belonged to the same place. Originally, a case was registered against A.1 and A.2 in respect of the commission of murder of the son of the deceased. Three months thereafter, another case was registered at the instance of the daughter-in-law of the deceased. While both the matters were pending, on the date of occurrence i.e. on 3.9.2006 at about 1.30 p.m., when the deceased was going in front in a cycle while PW.1, PW.2, PW.3, PW.4 and PW.11 were going behind him in a short distance. At that time, all the accused waylaid the deceased. On seeing the accused with the weapons of crime, the deceased stopped his cycle and began to run. But, the accused chased him. The first accused attacked the deceased on different parts of the body with a sword. PW.1 to PW.4 and PW.11 shouted at him and requested him not to cut. Despite the same, the first accused continued to give blows. Further, he also intimidated the witnesses from coming near or coming to rescue the deceased. When the witnesses raised alarm, the accused fled away from the place of occurrence.

(ii) PW.11 proceeded to Veravanallur Police station, the respondent herein and gave a report to PW.12, the Sub Inspector of Police, who was on duty at that time at about 3.00 p.m., on the date of occurrence. The said report was marked as Ex.P.1. On the strength of Ex.P.1 report, the case was registered in Crime No. 140 of 2006 under Sections 341, 294(B), 506(2) and 302 of the I.P.C.,. Express F.I.R. Ex.P.10 along with report Ex.P.1 was despatched to the Court and to the higher officials.

(iii) On receipt of copy of the F.I.R., PW.13, the Inspector of Police of the Circle, took up investigation, proceeded to the place of occurrence, made an inspection in the presence of witnesses and prepared an Observation Mahazar Ex.P.2 and also a rough sketch Ex.P.11. He recovered blood-stained mud MO.2 and the sample mud MO.3 and a cycle MO.4 under a cover of mahazar. He conducted inquest on the dead body of the deceased in the presence of witnesses and panchayatdars and prepared an inquest report, which was marked as Ex.P.12. Following the same, the dead body was subjected to post-mortem by Doctor PW.7, who has issued a post-certificate and that was marked as Ex.P.6 wherein he has opined that the deceased would appear to have died out of shock and haemorrhage due to multiple injuries, about 20 to 24 hours prior to post-mortem.

(iv) Pending investigation, the investigator arrested A.1 and A.2 in the presence of witnesses on 4.9.2006 at bout 7.30 a.m.,. During the course of investigation, A.1 and A.2 volunteered to give confessional statements and the same were recorded separately in the presence of witnesses. The admissible part of the confessional statement of A.1 was marked as Ex.P.4. Pursuant to his confession, A.1 produced MO.1 Sword, MO.5 lungi and MO.6 shirt, which were all recovered in the presence of witnesses under a cover of Mahazar Ex.P.5. On 5.9.2006, A.3 was arrested in the presence of witnesses. He also volunteered to give a confessional statement and that was recorded in the presence of witnesses. In the mean time, the police came to know that A.4 had surrendered before the lower Court on 18.9.2006.

(v) All the material objects recovered from the place of occurrence, from the dead body of the deceased and from the accused and also weapon of the crime were subjected to chemical analysis, which resulted in two reports viz., Chemical Analysis Report Ex.P.16 and Serological Report Ex.P.17.

(vi) On completion of the investigation, a final report was filed before the Court. The case was committed to the Court of Sessions. The necessary charges were framed against all the accused.

In order to substantiate the charges levelled against the accused, the prosecution examined 13 witnesses and relied on 17 Exhibits and 10 MOs. On completion of the evidence on the side of the prosecution, the accused were questioned u/s 313 Cr.P.C. on the incriminating circumstances found in the evidence of the prosecution witnesses. They denied them as false. Neither defence witness was examined nor document was marked. The trial Court after hearing the arguments advanced by either side and on considering the materials available on record took the view that the prosecution has proved its case insofar as A.1 and found him guilty of the charges levelled against him and awarded imprisonment as stated above and insofar as, A.2 to A.4, they were found guilty only u/s 341 IPC and they were acquitted of the charge u/s 302 r/w 34 of the I.P.C.,. Hence, the appeal at the instance of the first accused/appellant.

Advancing arguments on behalf of the appellant, the learned Counsel, Mr. S. Saji Bino would make the following submissions:

(i) In order to substantiate the charges against A.1 to A.4, the prosecution examined PW.1, PW.2, PW.3, PW.4 and PW.11 as eye-witnesses; out of whom, PW.2 and PW.4 have turned hostile. Thus, their evidence was not available for the prosecution. Insofar as PW.1, PW.3, PW.11, it was highly improbable that they were at the place of occurrence.

(ii) According to the prosecution, two complaints were originally given, one by the daughter-in-law of the deceased by name, Nadia and on the strength of which, a case was registered in Crime No. 112 of 2006 and equally, a case in Crime No. 130 of 2006 was registered for the acts committed by A.1 at the instance of the deceased. Both these complaints were one at the instance of the daughter-in-law and the other, at the instance of the deceased. But no one accused in the instant case was shown as accused. The motive attributed to A.1 that in view of the pendency of the criminal cases, he has acted so, can not be countenanced. Since the first accused was not shown as an accused in either Crime No. 112 of 2006 or 130 of 2006, he could not have any grudge or could not have been on inimical terms with the deceased. Thus, the prosecution has failed to prove the motive.

(iii) The occurrence had taken place at about 1.30 p.m. on 3.9.2006 but the Post-mortem Doctor PW.7 has categorically opined that he has conducted autopsy on the dead body of the deceased at about 11.30 a.m. on 3.9.2006. It is highly doubtful whether the time of occurrence and also the preparation of inquest report could have come into existence as put-forth by the prosecution.

(iv) PW.1, PW.3 and PW.11 have categorically admitted that they were not examined by the police. Hence, whatever be the evidence that was given in the lower Court by them can not be given any credence at all and can not be attached with any evidentiary value.

(v) Insofar as the evidence of PW.1 and PW.3, there were lot of contradictions. According to PW.1, they did not raise alarm, whereas PW.3 has deposed that they raised alarm.

(vi) According to PW.1, from the place of occurrence, they went to the police station by a cycle but according to PW.11, they went to the police station by bus. Thus, it was quite clear that PW.11 would not have accompanied with them and the complaint could not have been given so and thus, this witness could not have been in the place of occurrence at all.

(vii) The conduct of the eye-witnesses would be indicative of the fact that they could not have witnessed such occurrence as they had not even went to rescue the deceased.

(viii) The alleged arrest and recovery of M.O.1 sword under the cover mahazar Ex.P.5 pursuant to the confession alleged to have been given by A.1, was nothing but false. Under such circumstances, no evidentiary value can be attached to such document. Hence, the prosecution has miserably failed to prove the case. While the trial Court has taken the view that the prosecution has not proved the case as against A.2 to A.4 for the charge of murder and the same reasons are equally applicable to A.1 also and he is entitled for acquittal in the hands of this Court.

The Court heard the learned Additional Public Prosecutor on the above contentions. The Court paid its anxious consideration on the submissions made.

It is not a fact in controversy that one Chelliah alias Chitharathan died out of homicidal violence in the incident that took place at 1.30 p.m. on 3.9.2006 as put-forth by the prosecution. Following the inquest made by the investigator, the dead body was subjected to post-mortem doctor PW.7, who has issued a Post-Mortem Certificate Ex.P.6 to the effect that the deceased died out of shock and haemorrhage due to multiple injuries. Thus, it leaves no doubt to say that the deceased died out of homicidal violence.

In order to substantiate the charges levelled against A.1 to A.4, the prosecution has examined PW.1, PW.2, PW.3, PW.4 and PW.11 as eye-witnesses; out of whom, PW.2 and PW.4 have turned hostile and their evidence can not be relied on by the trial Court. But, the prosecution to its advantage, had the evidence of PW.1, PW.3 and PW.11. These three witnesses, insofar as the occurrence, they have spoken in one voice that the occurrence had taken place on 3.9.2006 at about 1.30 p.m. in which the first accused attacked the deceased with the sword MO.1 on different parts of the body and has caused his death instantaneously. The medical evidence projected through Doctor PW.7 stood in full corroboration with the ocular testimony projected through PW.1, PW.3 and PW.11.

Yet another circumstance against the accused/appellant was the recovery of the weapon of the crime viz., sword. Pursuant to the confession by the first accused, the witnesses who have been examined in that regard have spoken about the arrest and recovery of the weapon of the crime, which remain unshaken despite the cross-examination in full. Hence, there was no impediment for the Court in accepting that part of the evidence.

The contentions put-forth by the learned Counsel for the appellant remain to be considered. It is true that PW.2 and PW.4 have turned hostile. But, the other witnesses were available. Hence, in the instant case, even though two of the eye-witnesses have turned hostile, it has in no way has affected the case of the prosecution. The statements recorded from PW.1, PW.3 and PW.11 have been received by the lower Court within the reasonable time. All the three witnesses, due to lapse of time have given a version that the police have not enquired them. Perhaps, they would not have signed any statements. However, the statements recorded by the police officer by examining these witnesses viz., PW.1, PW.3 and PW.11 have reached the Court within the reasonable time. This would be indicative of the fact that the statements have actually been recorded.

The contention of the learned Counsel for the appellant that according to the prosecution, the occurrence had taken place at about 1.30 p.m., on 3.9.2006 and the Doctor PW.7 has categorically deposed that the post-mortem was done at about 11.30 a.m., on 3.9.2006 and hence, occurrence could not have taken place as put-forth by the prosecution, can not be accepted. A perusal of Ex.P.6 Post-mortem Certificate would clearly reveal that dead body was received by the medical personnel PW.7 and the post-mortem was also conducted only on 4.9.2006 at about 11.30 a.m.,. Hence, the Doctor PW.7''s evidence in chief examination that post-mortem was commenced at about 11.30 a.m., on 3.9.2006 has got to be eschewed.

Insofar as the discrepancies in the evidence of PW.1 and PW.3 brought to the notice of the Court, in its considered opinion, it would not shake the prosecution case.

The comment made by the learned Counsel for the appellant that there were contradictions in the evidence of PW.1 and PW.3 in respect of raising alarm at the time of occurrence and also the mode of conveyance with which they reached the police station, in the opinion of the Court, when the evidence of these occurrence witnesses stood fully corroborated by the medical evidence and also the recovery of sword under Ex.P.5 mahazar pursuant to the confessional statement of A.1, can not in any way cast a doubt or load the case of the prosecution with any doubt muchless reasonable doubt. Under the circumstances, any one or all of the contentions put-forth by the learned Counsel for the appellant do not carry merit.

In the instant case, it has been brought to the notice of the Court that A.1 or any one of the accused were not shown as accused either in Crime No. 130 of 2006 or 112 of 2006 and hence, the motive part has not not been proved. It can not be accepted for the reason that it is an admitted position that the accused found in those crime numbers were closely related to A.1.

The lower Court has marshalled the evidence proper, considered the same and entered the judgment of conviction and sentence where it has categorically found A.1 alone guilty of all the charges and insofar as A.2 to A.4, it acquitted of the charge of murder and convicted them only for the charge u/s 341 of the I.P.C.

The Court is unable to notice any infirmity or any thing to disturb factually or legally the findings recorded by the lower Court. Hence, the judgment of the lower Court has got to be sustained and accordingly, it is sustained. The Criminal Appeal fails and the same is dismissed.