Kannan vs State

A. Selvam, J.—The conviction and sentence dated 27.06.2013 passed in Sessions Case No. 36 of 2013 by the First Additional District and Sessions Court, Tuticorin are being challenged in the present Criminal Appeal.

The case of the prosecution is that due to previous animosity in between the accused and deceased Aathimuthu, with intention to murder him on 15.07.2012 at about 08.30 p.m. while the deceased has taken dinner by way of sitting in front of his house, the accused has come to the place of occurrence and attacked him by using a deadly weapon and due to overtacts alleged to have been committed by the accused, the said Aathimuthu has passed away. After occurrence, one of the eye witnesses and also son-in-law of the deceased by name Solaiappan as de facto complainant has given the complaint and the same has been marked as Ex. P.1. On receipt of Ex. P.1, the Sub Inspector of Police, has registered the same in Crime No. 95 of 2012.

The Investigating Officer (P.W. 13) has conducted investigation and after completing the same, laid a final report on the file of the Judicial Magistrate''s Court, Vilathikulam and the same has been taken on file in P.R.C. No. 35 of 2012.

The Judicial Magistrate, Vilathikulam has furnished copies of all relevant documents to the accused and after considering that the offence alleged to have been committed by him is triable by a Sessions Court, has committed the case to the Court of Sessions and the same has been taken on file in Sessions Case No. 36 of 2013.

The trial Court after contemplating the available materials on record and also after hearing both sides has framed a charge u/s 302 of the Indian Penal Code against the accused and the same has been read over and explained to him. The accused has denied the charge and claimed to be tried.

On the side of the prosecution, P.W.s. 1 to 13 have been examined and Exs. P.1 to P.15 and M.Os. 1 to 3 have been marked.

When the accused has been questioned u/s 313 of the Code of Criminal Procedure, 1973 as respects the incriminating materials available in evidence against him, he denied his complicity in the crime. No oral and documentary evidence have been let in on the side of the accused.

The trial Court, after assessing the evidence available on record, has found the accused guilty u/s 302 of the Indian Penal Code and sentenced him to undergo imprisonment for life. Against the conviction and sentence passed by the trial Court, the present Criminal Appeal has been preferred at the instance of the accused as appellant.

The sum and substance of the case of the prosecution is that due to theft of chicken an animosity has been in existence in between the accused and deceased and also due to collection of subscription in the village, the accused has had an intention to murder the deceased and on 15.07.2012 at about 08.30 p.m. while the deceased has taken dinner by way of sitting in front of his house, the accused has attacked him by using a deadly weapon and due to his overtacts the deceased has passed away.

The learned counsel appearing for the appellant/accused has raised the following points so as to topsy-turvify the conviction and sentence passed by the trial Court:

(i) In Ex. P.1, complaint names of various persons have been mentioned either for the purpose of proving the previous enmity or for the purpose of proving factum of occurrence, those persons have not been examined on the side of the prosecution and their non-examination would create suspicion in the case of the prosecution.

(ii) The de facto complainant who has been examined as P.W. 1 and P.Ws. 2 and 3 are closely related to the deceased and except testimonies of interested persons, no other independent witnesses have been examined on the side of the prosecution and that itself would militate the case of the prosecution.

(iii) The specific case of the prosecution is that the entire occurrence has taken place while the deceased has taken food, but the doctor who conducted autopsy (P.W. 12) has clearly stated in Ex. P.13, Post-Mortem Certificate to the effect that he found partly digested food and therefore the prosecution has not putforth correct facts and on that score also the conviction and sentence passed by the trial Court are improper.

(iv) In Ex. P.6, Recovery Mahazer, it has been clearly stated that from the accused a billhook measuring 44.5 c.m. has been recovered, but in Ex. P.5, confession statement alleged to have been given by the accused, it is stated that he has taken and produced the billhook from his waist and it is highly impossible on the part of a person to keep a billhook measuring 44.5 c.m. in his waist and the trial Court has failed to look into the same.

In order to remonstrate the contention putforth on the side of the appellant/accused, the learned Additional Public Prosecutor has sparingly contended that in the instant case, the entire occurrence has taken place at the time of taking food and under the said circumstances only related witnesses would have seen the occurrence and mere non-examination of independent witness would not affect the case of the prosecution and the prosecution has adduced enormous evidence for the purpose of pointing out the guilt of the accused and the trial Court after considering the overwhelming evidence available on record has rightly invited conviction and sentence against the accused and therefore the conviction and sentence passed by the trial Court are not liable to be interfered with.

As narrated earlier, the entire occurrence has taken place on 15.07.2012 at about 08.30 p.m. and that too in front of the house of the deceased by name Aathimuthu.

The de facto complainant by name Solaiappan has been examined as P.W. 1 and he speaks about the motive for occurrence, previous meeting in the village and also factum of occurrence. For the purpose of proving the previous occurrence, one Ganesan has been examined as P.W. 2 and his specific evidence is that in between the accused and deceased hostility has been in existence prior to occurrence. One Santhi has been examined as P.W. 3 and her specific evidence is that she has witnessed the occurrence and during the course of occurrence the accused has attacked on the person of the deceased. It is true that P.Ws. 1 to 3 and deceased are interrelated to each other. Simply because, P.Ws. 1 and 3 and deceased are interrelated to each other, their testimonies cannot be discarded nor eschewed since there is no embargo nor inhibition in law in accepting their evidence.

The doctor who conducted autopsy has been examined as P.W. 12 and Post-Mortem Certificate has been marked as Ex. P.13. In Ex. P.13, the following maternal and internal injuries are mentioned:

External Injuries: A transverse cut injury of size 8 cm x 3 cm x vertebra depth over the nape of neck with underlying vessels, nerves and muscles found cut. C6 vertebra found cut corresponding to the above mentioned cut injury.

Internal Examination: Opening of Neck and Thorax: Hyoid bone intact. No fracture in ribs. Both lungs pale. Heart pale.

Opening of abdomen: Stomach contains about 200 gms of partially digested food with no specific odour. Small intestine also contains similar material as in stomach. Large intestine of filled with fluid. Liver-pale. Spleen and both kidneys pale. Bladder empty.

Opening of head: No fracture in skull. Membranes intact. Brain-pale.

The opinion of P.W. 12 is that death would have occurred due to shock and hemorrhage.

The first and foremost contention putforth on the side of the appellant/accused is that in Ex. P.1, it has been clearly stated names of some persons with regard to previous occurrence and also with regard to factum of occurrence and the second contention putforth on the side of the appellant/accused is that the de facto complainant who has been examined as P.W. 1 and P.Ws. 2 and 3 are closely related to the deceased and except testimonies of interested persons, no other independent witnesses have been examined on the side of the prosecution.

It is true that in Ex. P.1 it has been clearly stated that in the presence of one Sadaimuniyandi and others, village meeting has been conducted wherein collection of subscription has been discussed and the deceased has adjusted mode of collection. Among the persons who participated in the village meeting, one Sadaimuniyandi has been examined as P.W. 4 and he speaks about village meeting held for collection of subscription.

In Ex. P.1, the names of wife of P.W. 1 and her sister have also been mentioned. But as rightly pointed out on the side of the appellant/accused, none of them have been examined on the side of the prosecution.

It has already been discussed that the testimonies of related witnesses cannot be discarded merely on the ground of relationship, provided their testimonies are acceptable and trustworthy. In the instant case, the de facto complainant viz., Solaiappan is the son-in-law of the deceased and P.Ws. 2 and 3 are related to P.W. 1 as well as deceased. Even though P.Ws. 1 to 3 are related witnesses, their evidence cannot be rejected. Further the prosecution is having untrammeled power of examining witnesses so as to prove its case and also to avoid proliferation of evidence. Under the said circumstances, the first contention and also the second contention urged on the side of the appellant/accused are of no use.

The third contention putforth on the side of the appellant/accused is that the specific case of the prosecution is that the entire occurrence has taken place while the deceased has taken dinner by way of sitting in front of his house and therefore P.W. 12 would have found undigested food in the stomach of the deceased. But in the Post-Mortem Certificate, Ex. P.13, it is stated to the effect that P.W. 12 has found partly digested food.

The specific case of the prosecution is that the entire occurrence has taken place at about 08.30 p.m. while the deceased has taken dinner by way of sitting in front of his house. As rightly pointed out on the side of the defence, in Ex. P.13, it has been mentioned that P.W. 12 has found some quantity of partly digested food. Simply because in Ex. P.13, it has been mentioned as partly digested food, the case of the prosecution cannot be rejected. Normally all foods might have been taken only by way of masticating the same. Under the said circumstances P.W. 12 would have found partly digested food. Further P.W. 12 is nothing, but an expert and he expressed his opinion in Ex. P.13. Since P.W. 12 has expressed his opinion in Ex. P.13, it is not a conclusive proof for coming to a conclusion that the theory putforth on the side of the prosecution is false. Therefore the third contention putforth on the side of the appellant/accused is sans merit.

The fourth contention putforth on the side of the appellant/accused is that in Ex. P.6, Recovery Mahazer it has been clearly stated that a billhook measuring 44.5 c.m. has been recovered from the accused and in Ex. P.5, confession statement alleged to have been given by the accused, it is stated that he has taken the said billhook from his waist and it is highly impossible on the part of the accused to keep the same and therefore the alleged recovery is false and further the confession given to the police is inadmissible in evidence.

It is an archaic principle of law that as per Section 25 of the Indian Evidence Act, 1872, a confession made while in custody of police is inadmissible. In the instant case as per Ex. P.6, a billhook measuring 44.5 c.m. has been recovered from the accused and as per Ex. P.5, it is seen that the accused has produced the billhook by way of taking from his waist. Simply because in Ex. P.5, it has been mentioned to the effect that the accused has taken out a billhook from his waist, the Court cannot come to a conclusion that the entire case of the prosecution is false.

In the instant case, as pointed out earlier, the prosecution has adduced exponential evidence and to put in short the evidence adduced on the side of the prosecution remains uncontroverted. Considering the aforesaid factual circumstances coupled with the evidence given by P.Ws. 1 to 4, the Court can easily come to a conclusion that the prosecution has clearly proved motive for occurrence, factum of occurrence and also details of attack alleged to have been made by the accused. Therefore in the light of the discussion made earlier, this Court has not found any force in the contentions putforth on the side of the appellant/accused and the trial Court after considering the available evidence on record has rightly found the accused guilty u/s 302 of the Indian Penal Code and in view of the discussion made earlier, this Court has not found any illegality in the conviction and sentence passed by the trial Court and altogether the present Criminal Appeal deserves to be dismissed.

In fine, this Criminal Appeal deserves dismissal and accordingly is dismissed and the conviction and sentence passed in Sessions Case No. 36 of 2013 by the First Additional District and Sessions Court, Tuticorin are confirmed. Consequently, connected Miscellaneous Petition is dismissed.