Kanagu (a) Kanageswaran and another vs State and 4 others

Prabha Sridevan, J.—The appeal is filed by the first accused in S.C.No.171 of 1990 on the file of the I Additional Sessions Court, Madurai.

He and four others were charged for the offences under Sections 148, 449, 302 read with 34 and 506(ii) of the Indian Penal Code. A2 to A5

were acquitted of all the charges. A1 alone was convicted for the offences under Sections 148, 449 and 302 read with 34 of the India Penal Code

and was sentenced to undergo rigorous imprisonment for two years, rigorous imprisonment for three years and life imprisonment respectively. The

learned Sessions Judge farther ordered that the said sentences should run concurrently. Further, the first accused was acquitted of the offence u/s

506(ii) of the Indian Penal Code. As against the same, the first accused preferred C.A.No.753 of 1990. C.A.No.91 of 1993 has been filed by the

State as against the order of acquittal of A2 to A5.

The prosecution case is as follows: PW1 is the first wife of the deceased and PW2 is the second wife of the deceased. Both of them are the

eyewitnesses to the occurrence. On 27.6.1989 at about 9 AM, the deceased returned home from Paikara. At that time, he was sitting in the

verandah of his house. While he was shaving, he was also eating tender palm. A1 came there with the knife like aruval (MO1). He threatened the

deceased that he would finish him. Immediately, the deceased rushed into the house. The accused 1 to 5 followed him into the house and attacked

with MO1 aruval; MO3 knife; MO4 iron rod; MO5 surl knife; and MO6 aruval. PW2 was also present there. Immediately thereafter, all the

accused ran away. The deceased died on the spot.

Immediately after the occurrence, PW1 rushed to give the information to the police station. But, she met the police officer on the way and she

was taken to the police station where she gave the complaint ExP1 to PW.11 the Sub-Inspector of Police who registered the same at about 12

Noon on the same day. PW.11 registered the case in Crime No.651 of 1989 under Sections 147, 148, 341, 452 and 302 read with 149 of the

Indian Penal Code. He, then, forwarded the first information report ExP23 to the higher authorities and to the Court. PW11, thereafter, went to

the scene of occurrence and waited for PW12 the Inspector of Police - the Investigation Officer.

PW12 received the information about the occurrence at about 12 Noon, went to the scene of occurrence at 1 PM after receiving the copy of

the first information report and commenced the investigation. At about 1.30 PM, he prepared the observation mahazar ExP2 in the presence of

PW3 and PW4. He also prepared the rough sketch ExP24. He conducted the inquest over the dead body of the deceased between 2 PM and 4

PM and prepared the inquest report ExP25. He examined PWs 1 to 4 and others during inquest. He forwarded the dead body for post mortem

through PW9 with the requisition ExP14.

PW.8 - the tutor in Forensic Medicine, Medical College, Madurai - 20, on receipt of ExP14, commenced the autopsy at 10.10 AM on

28.6.1989. He found the following injuries on the deceased:

1.A transverse cut injury 16 cms x 14 cms x exposing the underlying structure (muscles, vessels and bones) on the front of the upper part Of the

neck 4 cms below the middle of the chin, On dissection, the wound passes transversely cutting the underlying muscles and vessels of the neck

(carotid and jugular both sides) pharynx, oesophagus and partially cutting the body of the C4 cervical vertebra cutting the right greater cornu of the

hyoid at is junction with the body.

A transversely oblique cut injury 10 x 4 cms x bone deep on the neck of the middle 3rd of the left forearm, II cms above the 3rd

metacarpophalangeal joint. The wound obliquely cutting the underlying both bones, muscles, vessels. Only a skin flap is attached in its inner aspect.

A transversely oblique cut injury 8 cms x 3 cms x bone deep on the back of the left forearm middle, 5 cms above the previous wound. The

wound cutting the underlying both bones of forearm obliquely and cutting the vessels and muscles, only a skin flap is attached on its inner aspect.

A transversely oblique incised wound 4 cms x 1.5 cms on back of the left fore arm 2 cms below the previous wound.

A vertically oblique stab injury 2 cms inner to the left nipple 3.5 cms x 1 cm entering the thoractic cavity. On dissection the wound passes

obliquely downwards backwards and medially piercing the underlying 4th intercostal muscles 3.5 cms x 1 cm x through and through entering into

the pleural cavity and piercing the upper lobe of the left lung 3.5 cms x 0.5 cm x through and through. Left pleural cavity contains 100 ml of blood

with clots; upper medial end is obtuse and lower lateral end is pointed.

A vertically oblique stab injury 2 cms x 1 cm x bone deep on the upper lateral aspect of the left thigh, 10 cms below the left illiac crest. On

dissection, the wound passed obliquely upwards and backwards and medially upto the left public bone. The depth of the wound is 8 cms. The

upper end is obtuse and lower end is pointed.

A vertically oblique cut injury 14 cms x 3 cms x 4 cms on the back of the right shoulder blade and right shoulder. On dissection, the wound

cutting the underlying muscles, vessels and partially cutting the outer end of the right clavicle.

An oblique cut injury 7 cms x 1cm x bone deep on the top of the scalp over the left parietal area.

An oblique cut injury on the left side mandible 3 cm x 1 cm x skip deep.

A vertically oblique incised wound 9 cms x 3 cms x muscle deep on the front of the right upper arm 12 cms below the outer end of the clavicle.

A vertically oblique incised wound 3 cms x 1.5 cms X muscle deep, 1 cm outer to the injury No.10.

A transversely oblique incised wound 4 cms x 1 cm x muscle deep on the front of the middle of the upper arm, 19 cms below the outer end of

the right clavicle.

A transversely oblique incised wound 5 cms x 1 cm x muscle deep on the inner aspect of the right fore arm, 12 cms above the right thumb

base.

A vertically oblique incised wound cm the outer aspect of the right fore arm 6 cms x 1 cm x muscle deep, 5 cms above the lower end of the

radius.

A transverse cut injury on the root of the right little finger 2 cms x 1.5 cm x bone deep. On dissection, the wound partially cutting the underlying

muscles and the head of the 5th metacarpal bone.

A transversely oblique incised wound 9 cms x 2 cms x muscle deep on the front of the right side chest, 3 cms below the middle of the right

clavicle.

A transversely oblique stab injury 3 cms x 1.5 cms x 4cms on the right side of the back of the neck 6 cms lateral to the mid line,

A vertically oblique incised wound 6 cms x 1.5 cm x muscle deep on the front of the right shoulder close to the outer aspect of right clavicle.

A vertically oblique incised wound 2 cms x 1 cm x bone deep on the front of the right side chest, 5 cms medial to the right nipple.

A vertically oblique stab wound 4 cms x 1 cm x entering the abdominal cavity on the middle of the upper pan of the abdomen, 7 cms

umbilicus. On dissection, the wound passes obliquely downwards, backwards, piercing the abdominal muscles 4 cms x 1.5 cms x through and

through and entering into the abdominal cavity. Upper end is obtuse, lower end is pointed.

A transversely oblique incised wound 2 cms x 1 cm x entering the abdominal cavity on the left lateral aspect of the abdomen, 1 cm away from

the umbilicus. On dissection, the wound passes obliquely downwards, medially entering the abdominal cavity piercing the anterior abdominal wall 2

cms x 1 cm x through & through.

A transverse incised wound on the upper and outer part of the middle of right thigh 3 cms x 0.5 cm x skin deep.

A transversely oblique incised wound 6 cms x 1 cm x muscle deep outer aspect of the lower 3rd of right thigh, 7 cms above the right knee.

A vertically oblique incised wound 6 cms x 2 cms x bone deep on the inner aspect of right knee.

A transversely oblique incised wound 2 cms x 0.5 cm x skin deep, 6 cms below the right knee front.

An oblique incised wound 3 cms x 0.5 cm x skin deep on the inner aspect of the right foot below the root of the right big toe.

A vertical incised wound 6 cms x 1.5 cm x muscle deep on the outer aspect of upper part of left leg 6 cms below the knee joint.

A transversely oblique incised wound 3 cms x 0.5 cm x skin deep in the front of the left upper arm, 25 cms below the outer end of the left

clavicle.

A vertically oblique incised wound on the outer aspect of the left hip 2.5 cms x 0.5 cm x skin deep.

An oblique incised wound on the back of the middle of the left thigh 2 cms x 0.5 cm x muscle deep.

A transversely oblique incised wound 2 cm x 0.5 cm x skin deep on the left lower aspect of the chest front of the chest 8 cms below the left

nipple.

A vertical incised wound 4 cms x 0.5 cm x skin deep on the front of the chest, 4 cms below the left nipple.

A vertical incised wound 4 cm x 0.5 cm x skin deep on the left side front of abdomen 5 cms outer to the left of the umbilicus.

An incised wound 2.5 cms x 0.5 cm on the inner aspect of the right thigh upper part.

Two abrasions on the front of the right knee 2 cms x 1.5 cms and 1 x 1 cm.

Abrasion on the front of lower 3rd of right knee 2 cms x 1.5 cm and 1 x 1 cm.

All the incised wounds have clear cut margins. The post mortem certificate is EXP15. The opinion, according to PW8 for the death of the

deceased was the multiple injuries sustained by him.

At about 4.15 PM, PW12 collected the blood from the scene of occurrence in the presence of PW5 and another under mahazar ExP26. He

also recorded the statement of PW5 and neighbours. He made arrangements to forward the blood so collected and the blood stained trouser worn

by the deceased under Form 95 to the Magistrate''s Court. On 28.6.1989, he recorded the statements of PW6, PW9 and others. On 29.6.1989,

on receipt of information, he arrested the accused 1 to 4 at 9 PM on the Main Road at Melur Vellalarpatti. He recorded the confession of A1 in

the presence of PW5 and another and the admissible portion of which is ExP27. Pursuant to that, A1 took PW12 to his house and produced

MO1. Thereafter, at 9.30 PM, he recorded the confessional statement of A2 and the admissible portion of which ExP28. A2 took PW12 to his

house and MO3 was recovered in the presence of witnesses. At 10 PM, PW12 recorded the confessional statement of A3 and the admissible

portion of which is ExP29. A3 took PW12 to his house and pursuant to that, MO4 was seized under mahazar ExP33 in the presence of witnesses.

At about 10.30 PM, PW12 recorded the confession of A4 and the admissible portion of which is ExP30. Thereafter, A4 took PW12 to the rear

wall to his house, from where, MO5 was recovered under mahazar ExP34 in the presence of the witnesses. On 30.6.1989, he sent accused 1 to 4

for remand. On 13.7.1989, he sent the material objects seized to the Court with a requisition ExP16 for sending them for chemical analysis. On

18.7.1989 at 6 PM, he arrested A5 in the Madurai Periyar Bus Stand in the presence of witnesses. A5 gave the confessional statement and the

admissible portion of which is ExP35. Thereafter, A5 took him to his house and MO6 aruval was recovered under mahazar ExP36 in the presence

of the witnesses. He brought A5 and MO6 to the police station. On 29.7.1989, he recorded the statement of PW11 and other witnesses. He sent

the requisition ExP20 to the Court for sending MO6 for chemical analysis. On 30.6.1989, he recorded the statement of PW8. After completing

the investigation, on 10.10.1989, he filed the charge sheet.

The Committal Magistrate, after having found that the case is exclusively triable by the Sessions Court, committed the same to the Sessions

Court. Before the Sessions Court, 12 witnesses were examined; 36 exhibits we''re marked and 6 material objects were produced. The learned

Sessions Judge, after considering the oral and documentary evidence, found the appellant/the first accused alone guilty of the offences under

Sections 148, 449 and 302 read with 34 of the Indian Penal Code. The Learned Sessions Judge acquitted A2 to A5 of all the charges, as there

was no evidence to show that PW1 and PW2 knew them and there was no identification parade and since there was a doubt regarding the

eyewitnesses identifying A2 to A5, they were given the benefit of doubt.

Mr. Ayyadurai, who was appointed as amicus curiae by this Court for A1, submitted that the prosecution had not proved its case satisfactorily.

In the first place, the motive for the offence, according to the learned counsel for the appellant, was not at all established. PW1, in her evidence,

had deposed that about 10 or 20 days prior to the date of occurrence, A1 had come to their house and pelted a stone at their dog which was tied

in front of their house. A1 had an aruval in his hand and attempted to cut the dog. PW1 was frightened and went inside the house. About one hour

thereafter, her husband - the deceased came home and she reported the matter to him. Thereupon, the deceased shouted at A1.

The other motive attributed to A1 is that the accused is the henchman of Papathi Rajendran, whose group and the deceased had long standing

enmity. According to the learned counsel for the appellant, the event relating to A1 pelting the stone at the dog was too trivial to be the motive for

the offence of murder and the long enmity, which is also set up by the prosecution, has a motive. Learned counsel would submit that the enmity is

double and edged weapon. It had been elicited in the evidence of PW1 that one Nelpettai Seeni the brother of the deceased had been charged for

the offence of murdering the said Papathi Rajendran and in that case, A1 was examined as PW.l. So, the learned counsel would submit that this

was a very good reason for PW1 and PW2, who were the wives of the deceased to try to implicate A1 to A5 in the offence.

Learned counsel for the appellant next submitted that there were material contradictions between the evidence of PWs 1 and 2 with regard to

the various overacts and the, weapons used by each of the accused. In fact, there was a glaring contradiction in PW1''s stand in ExP1 regarding

the weapon used by A1 and her evidence in chief and cross examinations and therefore, according to the learned counsel, there was a serious

doubt as to whether these two witnesses were present in the scene of occurrence. He also submitted that these two witnesses, being the wives of

the deceased, are the interested witnesses and except these two witnesses, no other eyewitness had been examined by the prosecution. Further,

due to the long standing enmity, the evidence of PWs 1 and 2 cannot be relied upon.

Learned counsel also pointed out that the chemical analyst''s report ExP18 showed that there was no Mood stains on any of the weapons

recovered from the accused. This also lends support to the defence that the prosecution case, as spoken to by PWs 1 and 2, is not true.

Learned counsel for the appellant also pointed out that the arrest of A1 to A4 and the recovery of the weapons pursuant to their arrest itself is

highly suspicious, since, according to PW1, she identified the accused at the police station on the date of occurrence itself and she came to know

the names of A2 to A5 at the police station, whereas, according to the prosecution, A1 to A4 were arrested only 29.6.1989 i.e. two days after the

occurrence and A5 was arrested on 18.7.1989. Learned counsel further submitted that the conduct of PWs 1 and 2 was very abnormal and when

they saw A1 rushing with the weapon, the least they should have done is to shut the door, thus preventing the other accused from entering the

room. According to the learned counsel, this would be the normal reaction to protect their husband. The fact that they did not do so raises a doubt

regarding their presence at the scene of occurrence coupled with the fact there is no resistance on the part or PWs 1 and 2 either in preventing the

accused or in attempting to save the deceased. For all these reasons, the learned counsel submitted that the conviction of the appellant has to be

set aside.

Per contra, the learned Government Advocate on the Criminal Side submitted that the murder happened in broad day light inside the house of

the deceased and therefore, the only natural witnesses would be the persons residing in the house of the deceased and they were the two wives of

the deceased. Therefore, there was nothing wrong in the prosecution examining PWs 1 and 2 to establish their case. One independent eyewitness

PW6 turned hostile.

The learned Government Advocate submitted that the time of occurrence was 11.30 AM and within half an hour, ExP1 complaint was

registered, in which the names of all the accused had been given by PW1 and within two hours, the identities of the accused had been brought to

judicial notice, because, the first information report had been forwarded by that time. Therefore, this would show that PW1 was present at the

scene of occurrence and had reported the same without any delay. When the occurrence had been proved, the motive loses relevance and

therefore, even if the motive has not been satisfactorily established, that would not weaken the case of the prosecution. PW1, in her evidence, had

deposed that she knew A1 even prior to the occurrence, since he had pelted a stone at their dog. Therefore, there was nothing suspicious about

her knowing the name of A1.

The learned Government Advocate also submitted that the prosecution had the right to select their witnesses and it is not necessary for the

prosecution to examine all the witnesses whose statements had been recorded during investigation, especially in a case like this, when even the

eyewitnesses do not come forward to testify as to what they have seen. The prosecution would necessarily have to rely on such of those

eyewitnesses or prepare to testify as to what they saw. In this case, they are the wives of the deceased. On that count, their evidence cannot be

rejected.

The learned Government Advocate, so far as the appeal against acquittal is concerned, contented that in ExP1, the names of all the accused

had been mentioned and since ExP1 had come into existence immediately after the occurrence and the copy of the same also had reached the

Judicial Magistrate, it deserves due weight. The trial Court had acquitted A2 to A5 on the ground that PWs 1 and 2 had not identified them

without considering the material fact that their names had been mentioned in ExP1. Further, the trial Court has totally failed to consider the fact that

PW2 has stated that she came to know about the names of A2 to A5 through PW1 and since this evidence of PW2 was not challenged, the same

ought to have been accepted and therefore, A2 to A5 ought not to have been acquitted, merely because there was no test identification parade.

We have carefully considered the rival contentions.

So far as the appeal against the acquittal of A2 to A5 is concerned, i.e. C.A.No.91 of 1993, the case of the prosecution with regard to the

eyewitnesses, namely, PWs 1 and 2 identifying these accused is not strong. According to PW1, she deposed in her chief examination that she

knew A1 long prior to the date of occurrence. As far as A2 to A5 are concerned, she did not say anything about her acquaintance with them

earlier. In the cross examination, she has categorically deposed that she came to know about the names of A2 to A5 in the police station, since A1

called them by names. In her evidence, she states that she saw A2 to A5 in the police station on the date of occurrence and later, she states in her

cross examination that she saw them on the next day. As far as PW2''s evidence is concerned, she would state in her chief examination that she

had seen only A1 prior to the occurrence and she had never seen A2 to A5 and immediately after the occurrence, she learnt the names of A2 to

A5 from PW1, which were not corroborated by PW1. Hence, the fact remains that Pws 1 and 2 were not acquainted with A2 to A5 prior to the

date of occurrence. On the one hand, PW1 deposed that she learnt their names, because A1 called them by names and on the other hand, she

deposes that she learnt their names only in the police station. In view of this discrepancy, the lower Court had rightly rejected her evidence with

regard to A2 to A5. The evidence of PW2 that PW1 told her about the names of A2 to A5 is not corroborated by PW1 and therefore, the same

also has to be rejected.

Since this being an appeal against the acquittal, unless the reasoning given by the lower Court is found perverse, this Court cannot set aside the

same, merely because there is another view possible. Since the reasoning given by the Court below is acceptable and is not found perverse, this

Court cannot interfere with the same. Hence, the order of acquittal of A2 to A5 by the Sessions Court is confirmed and C.A.No.91 of 1993 is

dismissed.

The case with regard to A1 stands on a different footing. Both the eyewitnesses have deposed about their knowing A1 even prior to the date

of occurrence. Both of them have categorically deposed about the incident which happened about 10-20 days prior to the date of occurrence that

A1 came to their house and pelted stones at their dog. Therefore, their identifying A1 on the date of occurrence is categorical and unchallenged.

Their evidence is also clear with regard to A1 possessing the weapon MO1 aruval and attacking the deceased with the same. The doctor PW8,

who conducted post mortem, has stated in his evidence that the injuries 1 to 3, 7 to 9 and 15 could have been caused by aruvals like MOs 1 and 6

and Injury No.1 is on the neck. In ExP1, PW1 has stated as follows:

Therefore, the overt act attributed to A1 has been correlated by PW8 to injury No.1, which could have been caused by the weapon like MO1

aruval, and which, A1 is said to have carried. The evidence regarding A1 and the overt act attributed to him is unchallenged. Even assuming that

PW2 was in the kitchen and could not have seen the occurrence as submitted by the learned counsel for the appellant, the solitary evidence of

PW1 is sufficient to find the appellant guilty.

So far as the recovery of the material objects is concerned, we have out own doubt on the evidence let in by the prosecution. Even though the

confessional statements and the recovery part of the material objects are disbelieved, still we are of the opinion that the, evidence of PW1 can be

accepted, as the same remains unchallenged so far as A1 is concerned.

For the aforesaid reasons, we confirm the judgment of the learned Sessions Judge in so far as the first accused is concerned in C.A.No.753 of

1990. Hence, both, the appeals are dismissed. Since the appellant in C.A.No.753 of 1990 is oh bail, the bail bonds executed by him are directed

to be cancelled and the trial Court is directed to secure his presence to serve the remaining period of sentence.

We record our sincere thanks'' to Mr.Ayyadurai, who ably assisted this Court as amicus curiae at our request.