Krishnan vs State

M. Chockalingam, J.—Challenge is made to a judgment of the Sessions Division, Sivagangai District, dated 18.12.2009, made in S.C. No. 41/2008, whereby the appellant, shown as accused No. 1, along with another accused ranked as accused No. 2, stood charged u/s 302 IPC (two counts), on trial, found guilty thereunder and sentenced to undergo life imprisonment and to pay a fine of Rs. 1000/-, in default to undergo rigorous imprisonment for two years on each count and the sentences were ordered to run concurrently. However, the trial court found accused No. 2 not guilty and acquitted her of the said charge.

The short facts necessary for the disposal of the appeal can be stated as follows:

(a) P.W.3 Mayandi is the son of both the deceased, namely Subbiah - D1 and Valli - D2, in the case. They were all residents of Udaiyanathapuram within the jurisdiction of the respondent police station. Accused No. 1 Krishnan is the brother of D1 and accused No. 2 is the wife of accused No. 1. The families of Accused No. 1 and D1 were having a dispute for more than a decade claiming ownership over a piece of land.

(b) During the relevant period, D1 raised sugarcane in the disputed field. On 24.04.2007, D1 went to the field, along P.W.2 Rakku, a field worker, for cutting and collecting the ripened sugarcane. The work was continued on the next day i.e.25.04.2007 also. On that date, at about 9.45 a.m., when the work was going on in the field, D1 was present supervising the same. At that time, Accused No. 1 accompanied by his wife, the 2nd accused, came there holding hatchet and aruval, respectively and raised objection for operation done by D1 and the work was stopped. After some time, D2, wife of D1, carried water to provide to the field workers and after seeking the work being stopped, she questioned both accused No. 1 and accused No. 2. Immediately, both the accused assaulted with hatchet and aruval indiscriminately on D1 and D2, as a result of which D1 died on the spot and D2 fell unconscious. P.W.2 and other field workers witnessed the occurrence. P.W.1 Moovarasu and his brother Marimuthu, who were moving in the nearby road, also came and witnessed the occurrence. Thereafter the brother of P.W.1 Marimuthu informed about the incident to P.W.3, who was actually working as a staff in the Government Hospital, Sivagangai, over phone. P.W.3 in turn informed the same to the Taluk Police Station, Sivagangai and rushed to the scene of occurrence along with P.W.7, the Sub-Inspector of Police attached to the respondent Police Station. In the place of occurrence itself, P.W.7 recorded the statement of D2 at 01.00 p.m. and thereafter both D1 and D2 were taken to Government Hospital, Sivagangai. Ex.P-21 is the statement obtained from D2. Based on Ex.P-21, P.W.7 registered a case in Crime No. 89/2007 under Sections 307 and 302 IPC and prepared Ex.P-22, the first information report and despatched the same to the Court and sent copies of the same to the higher police officers.

(c) P.W.9, the doctor attached to Government Hospital, Sivagangai, admitted D2, who was brought for treatment for the injuries sustained by her, as an inpatient and gave treatment. Ex.P-28 is the Accident Register issued in respect of D2 by P.W.9. Ex.P-6 is the requisition given by the Investigator for recording the Dying Declaration of D2 and Ex.P-7 is the Certificate issued by the Duty Doctor certifying that the condition of D2 was not fit enough to give declaration. Despite treatment, D2 died in the hospital at 5.00 p.m. on 25.04.2007 and Ex.P-29 is the Death Intimation given to the Police by P.W.9.

(d) On receipt of a copy of Ex.P-22 FIR, P.W.10, the Inspector of Police, proceeded to the place of occurrence, made an observation in the presence of P.W.4 and another and prepared Ex.P-1, the observation mahazar and also drew Ex.P-30, the rough sketch. From the place of occurrence, P.W.10 recovered M.O.3 - bloodstained earth, M.O.4 - sample earth, M.O.5 - a pair of artificial tooth set and M.O.6 - a spectacle without lens on the right side under Ex.P-2 Mahazar attested by the same witnesses. He examined witnesses and recorded their statements. Thereafter, P.W.10 proceeded to the Hospital and at 04.30 p.m. conducted inquest on the body of D1 Subbiah, which was kept in the mortuary, in the presence of panchayatdars and witnesses and prepared Ex.P-31, the inquest report. Since D2, who was getting treatment in the hospital, died at 05.00 p.m. on 25.04.2010, her body was also kept in the mortuary. P.W.10, the Inspector of Police, also conducted inquest on the body of D2 in the presence of Panchayatdars and witnesses and prepared Ex.P-32, the inquest report. Thereafter, he sent the bodies of D1 and D2 for postmortem with Ex.P-18, the requisition. Based on Ex.P-29, the Death INtimation, the case was altered to Section 302 IPC (two counts) and Ex.P-33, amended FIR was despatched to the Court.

(e) P.W.6, the Doctor attached to Government Hospital, Sivagangai, on receipt of Ex.P-18 requisition from the Investigation Officer, conducted autopsy on the body of the D1 Subbiah at 09.15 a.m. on 26.04.2007 and on completion of postmortem, P.W.6 issued Ex.P-19, the postmortem certificate, opining that D1 would have died of shock and haemorrhage due to multiple injuries. P.W.6 also conducted autopsy on the body of the D2 Valli at 10.20 a.m. on 26.04.2007 and on completion of postmortem, P.W.6 issued Ex.P-20, the postmortem certificate, opining that D2 would have died of shock and haemorrhage due to major neck vessels injury.

(f) Pending investigation, P.W.10, the Inspector of Police, arrested both the accused at 08.00 a.m. on 26.04.2007 in the presence of P.W.4 and another and when enquired, both the accused came forward to give separate voluntary confessional statements and the same were recorded by P.W.10, the Inspector of Police. Pursuant to the admissible portion of their confessional statements, marked as Ex.P-3 series, P.W.10 recovered M.O.1 hatchet and M.O.2 Aruval under Ex.P-4 Mahazar attested by the same witnesses. Thereafter, accused No. 1 took and produced M.O.7 - bloodstained dhoti and M.O.8 - bloodstained saree and the same were recovered by P.W.10 under Ex.P-5 Mahazar attested by the same witnesses. Thereafter both the accused were sent for judicial remand. P.W.10 examined the witnesses and recorded their statements.

(g) P.W.10 gave Ex.P-24 Requisition to the Court for sending the material objects recovered in the case for chemical analysis. P.W.8 is the Magisterial Clerk of the Court. On receipt Ex.P-24, the materials were sent to Forensic Lab under Ex.P-25, the letter of the Court, which resulted in two reports, namely Ex.P-26, the Chemical Examiner''s Report and Ex.P-27, the Serologist''s Report.

(h) P.W.11, the Inspector of Police, took up the further investigation in the case. He gave Exs.P-8 and P-12 Requisitions to the Court for recording Section 164 Cr.P.C. statements of witnesses. P.W.5, Judicial Magistrate, recorded the statements of witnesses and Exs.P-10, P-11 and P-13 to P-17 are the statements of witnesses recorded u/s 164 Cr.P.C. On completion of investigation, P.W.11, the Inspector of Police, filed the final report against the accused u/s 302 IPC (two counts) on 24.12.2007.

After committal proceedings, the case was taken on file by the Sessions Court in S.C. No. 41/2008 and necessary charges were framed. To prove the charges against the accused, the prosecution examined 11 witnesses as P.Ws.1 to 11 and marked 33 documents as Exs.P-1 to P-33 and produced M.Os.1 to 8. On completion of the evidence on the side of the prosecution, when the accused were questioned u/s 313 of the Criminal Procedure Code about the incriminating circumstances found in the evidence of prosecution witnesses, they denied all of them as false. On the side of defence, neither oral evidence nor documentary evidence was let in. The trial court, after hearing the parties, took the view that the prosecution has proved the charge against accused No. 1 beyond reasonable doubt, found him guilty under the charge of murder (two counts), convicted him thereunder and awarded life imprisonment along with a fine of Rs. 1000/-, with default sentence, on each count. In respect of accused No. 2, the trial judge has recorded an order of acquittal, since he formed an opinion that the prosecution has not proved its case against accused No. 2 beyond reasonable doubt. Hence this appeal at the instance of accused No. 1.

Advancing arguments on behalf of the appellant/accused No. 1, learned Counsel Mr. Mohana Sundaram raised the following points in assailing the judgment of the trial court.

(a) In the instant case, the prosecution has miserably failed to prove its case. According to the prosecution, the occurrence has taken place at 11.30 a.m. on 25.04.2007. It was a case of double murder. The claim of the prosecution is that it was D2 who has given a statement to P.W.7, the Sub-Inspector of Police and on the strength of which a case was originally registered under Sections 307 and 302 IPC and the prosecution relied on the evidence of P.Ws.1 and 2 as eye-witnesses to the occurrence and though the trial judge was not ready to believe the evidence of P.W.1 and disbelieved the same , the trial judge has erroneously accepted and acted upon the evidence of P.W.2.

(b) Insofar as the evidence of P.W.2 is concerned, it is contended that her evidence should not be believed and should be rejected. It is submitted by the learned Counsel that the name of P.W.2 does not find a place in Ex.P-21 Statement said to have been given by D2 and further her name does not even find a place in the Inquest Reports and her statement has reached the Court after few months and all would clearly indicate that P.W.2 could not have been in the place of occurrence at all. Added further the learned Counsel, actually Section 164 Cr.P.C. statements of witnesses were recorded by Judicial Magistrate and P.W.2 has stated before the Magistrate that Accused No. 1 has stabbed both the deceased, but, on the other hand, before the Court she has stated that accused No. 1 stabbed both the deceased and accused No. 2 Ramu cut D1 with aruval and thus the evidence of P.W.2 is contradictory and this would be indicative of the fact that P.W.2 could not have been present in the place of occurrence at all and subsequently she has been introduced in order to find an eye-witness to the occurrence.

(c) Added circumstance to disbelieve the case of the prosecution is that in the earliest report Ex.P-21, D2 has categorically stated that the assailants were four in number, apart from accused Nos. 1 and 2, the son and grandson of both the accused, and in Ex.P-22 Original FIR also the names of four accused were found mentioned but, at the time of filing charge sheet only two accused have been shown in the charge sheet and this would be indicative of the fact that the earliest statement said to have been given by D2 is a false one and cannot not be acted upon and even the Investigator P.W.10 has candidly admitted that original FIR in respect of accused Nos. 3 and 4 was false and thus the statement Ex.P-21 should have been rejected outright.

(d) It is further submitted by the learned Counsel that even in the Accident Register pertained to D2, which is marked as Ex.P-28, which has come into existence at 1.30 p.m. on 25.04.2007, it is recorded by P.W.9 Doctor that four persons were the assailants but, the prosecution has given up the case regarding the other two accused as shown in Ex.P-22 Original FIR and all would clearly indicate that prosecution case is doubtful. Therefore the learned Counsel submitted that when the trial judge was not ready to believe the case of prosecution in respect of accused No. 2 and also not believed the evidence of P.W.1, he should have rejected the case of the prosecution in entirety and therefore the judgment of the trial finding appellant/accused No. 1 guilty of murder under two counts has got to be set aside and the appellant is entitled for an order of acquittal at the hands of this Court.

The Court heard the learned Additional Public Prosecutor on all the submissions made by the Counsel for the appellant and paid its anxious consideration to the submissions made on either side and perused the materials on record.

It is not in controversy that on the date of occurrence i.e. 25.04.2007 at about 11.30 a.m., as projected by the prosecution, the occurrence was taken place in the field in which D1 was done to death and D2, who suffered injuries was taken to the Government Hospital, Sivagangai, where she was initially given treatment by P.W.9 Doctor and Ex.P-28 Accident Register was given to her and despite treatment, she also died. Following the inquest made on the bodies of D1 and D2 and preparation Exs.P-31 and P-32, the inquest reports, by P.W.10, the Investigator, the bodies were subjected to postmortem by P.W.6, the postmortem doctor, and after postmortem P.W.6 issued Ex.P-19, the Postmortem Certificate pertained to D1, wherein he opined that the deceased would have died of shock and haemorrhage due to multiple injuries and in Ex.P-29, the postmortem certificate pertained to D2, P.W.6 has opined that the deceased would appear to have died of shock and haemorrhage due to major neck vessel injury. Thus, through the above evidence, the prosecution has established the fact that both D1 and D2 died out of homicidal violence and this fact was never disputed by the appellant/accused No. 1 either before the trial court or before this Court and therefore the trial judge was perfectly right in recording so.

In order to substantiate the above charge of murder (two counts) against the appellant and the other accused, the prosecution marched two witnesses namely P.W.1 and P.W.2 as eye-witnesses. Out of these two witnesses, the trial judge was not ready to believe the evidence of P.W.1 and rejected his testimony. What was available for the prosecution before the trial court was the evidence of P.W.2. Learned Counsel for the appellant/accused No. 1 has made much comment on the evidence of P.W.2 as narrated above. It is true that D2 has not stated the presence of P.W.2 in the place of occurrence in the earliest document Ex.P-21, the statement given by her to P.W.7, the Sub-Inspector of Police. It is also equally true that the name of P.W.2 does not find place in the Inquest Reports Exs.P-31 and P-32. At this juncture, it is pertinent to point out that insofar as the statement recorded by P.W.7 from D2 at the place of occurrence where the name of P.W.2 was not mentioned, it must be looked under what condition D2 was put when she gave Ex.P-21 Statement. At that time, her husband was being attacked indiscriminately and it has caused his instantaneous death. In the same transaction, she was also attacked and sustained grievous injuries. Therefore, one can visualize the anxiety under which she was put when she made such a statement to P.w.7 at the spot and thereafter she was taken to the Hospital. Hence non-mentioning of the name of P.W.2 in the statement given by her in no way, in the considered opinion of the Court, cast a doubt on the prosecution case.

Added further, D2 was taken to the hospital and at that time she has stated before P.W.9, the Doctor, there were four assailants, i.e. apart from A1 and A2 two other persons were there. According to the counsel, it is a false statement given by her. It is pertinent to point out that it is true that she has mentioned four persons as assailants. It is also found mentioned in Ex.P-28, the copy of the Accident Register and it is also found so even in the statement given by her to P.W.7. However, it remains to be stated that the principle falsus in uno, falsus in omni bus is not applicable to the Indian Criminal jurisprudence and hence merely because two more names are given by D2, the case against A-1 and A-2 cannot be rejected and under such circumstances the Court must look into the other circumstances attendant to the case.

The statement of D2, which was recorded on the very date of occurrence i.e. on 25.04.2007 has reached the Curt on the very next day i.e. 26.04.2007. Merely because the name of P.W.2 does not find a place in the inquest reports, it cannot be a reason to reject her testimony. P.W.2 was after all a field worker and according to her, she was very well available on both the days i.e. on 24.04.2007 and also continued the field operations on 25.04.2007 also and on the morning hours of 25.04.2007 when she was working in the field, the accused came there. It is pertinent to point out that at the time when she gave Section 164 statement before the Judicial Magistrate, P.W.2 has stated that accused No. 1 first stabbed D1 with hatchet and when D2 went for the rescue, he also stabbed D2 and it is also found that he was having both hatchet and aruval. A perusal of Ex.P-19, the postmortem certificate, would clearly indicate that two kinds of injuries were noticed on the body of D1 and they were stab and cut injuries and the injuries that were noticed in the bodies could not have been caused by one weapon but by two weapons and this strengthens the evidence of P.W.2.

Though P.W.2 was the only eye-witness, while the evidence of P.W.2 inspires the confidence of the Court the same has to be necessarily accepted and the court need not look for any more evidence. Therefore, the comments made by the counsel for the appellant that P.W.2 could not have seen the occurrence cannot be accepted. In the instant case, the evidence of P.W.2 is fully stood corroborated by the medical opinion canvassed by the prosecution. Despite cross-examination, the evidence of P.W.2 remained unshaken.

Added circumstance available to the prosecution is the recovery of M.Os.1 and 2 weapons. M.Os.1 and 2 have been recovered pursuant to the admissible portions of the confessions statements of accused, which are marked as Ex.P-3 series. P.W.4, the Village Administrative Officer, has been examined by the prosecution to prove its case as to the recovery of weapons. This is also pointing to the nexus of the appellant with the commission of the crime and thus the trial Court has marshalled the evidence proper and considered the same and taken a correct decision that appellant/accused No. 1 was guilty of murder of both the counts on the evidence narrated above and there is nothing to disturb the well considered judgment of the trial court. Under such circumstances, the contentions put-forth by the learned Counsel for the appellant do not merit acceptance and same deserves to be rejected and accordingly rejected. There is no merit in the appeal.

In the result, the appeal fails and the same is dismissed. The judgment of the trial court is confirmed.