Latshmanan, Subbiah and Venkatachalam vs State by the Inspector of Police

M. Chockalingam, J.—The appellants three in number, have challenged the judgment of the III Additional District and Sessions Judge, Tirunelveli made in S.C. No. 114/98 whereby they stood charged and tried as follows:

Accused Nos. 1 and 2 - u/s 302 IPC Accused Nos. 1 and 3 - u/s 302 IPC Accused Nos. 1 to 3 - u/s 506(ii) IPC. Accused Nature of Conviction Sentence under IPC section 1 to 3 449 7 years rigorous imprisonment 1 and 2 302 Life imprisonment 2 and 3 302 r/w 34 Life imprisonment 1 and 3 302 Life imprisonment 1 to 3 506(ii) 2 years rigorous imprisonment

Briefly, the facts necessary for the disposal of this case can be stated thus:

(a) P.W.6 is the wife of the 1st deceased, Azhwar. The 2nd deceased is the son of the 1st deceased and P.W.6. P.W.1 is the brother-in-law of P.W.2. P.Ws.2 and 3 are the brother-in-laws of the 1st deceased, Azhwar. Accused No. 1 is the brother-in-law of Accused No. 2 and Accused No. 3 is the son of Accused No. 2. The said P.Ws. 1st deceased, 2nd deceased and also the accused belonged to the same place Kothaichery within the jurisdiction of the respondent Earwadi Police Station. The deceased Azhwar owned lands in Survey No. 628/4. The 1st accused had lands along with pump set adjacent to the lands of the 1st deceased.

(b) On 30.7.1995 at about 7.00 a.m. the 1st accused was deepening the channel which was objected to by the 1st deceased. There arose a wordy quarrel. On the intervention of others, they were separated. At about 2.00 p.m. the 1st accused came to the house of the 1st deceased and informed P.W.6 that he would finish off her husband, the 1st deceased and her son, the 2nd deceased. On 31.7.1995, after taking dinner, the 1st deceased Azhwar and his son, the 2nd deceased, went to the field to guard their plantain field. That night, P.Ws. 1 to 3 went to the field in order to guard the sheeps which were kept for the purpose of manuring. At about 3.00 a.m. all the three accused armed with knives, came over there and attacked the 1st deceased. On seeing this, the 2nd deceased woke up and the accused did not spare the 2nd deceased also. They attacked him and both the deceased were done to death instantaneously.

(c) The occurrence was witnessed by P.Ws.1 to 3. Leaving P.W.2, P.Ws.1 and 3 went to the village, informed P.W.4, one of the Panchayatdars and also informed P.W.6, the wife of the 1st deceased. P.W.6, on hearing the same, with distressing cry, was about to go to the field. But, she was stopped by the villages. P.Ws.1 and 3 then proceeded to the respondent Police Station and P.W.1 gave a report to P.W.15, the Head Constable which is marked as Ex.P.1, on the strength of which a case came to be registered in Cr. No. 256/95 under Sections 302 and 506(ii) IPC. The Express F.I.R., Ex.P.19 was despatched to the Court. P.W.16, the Inspector of Police took up investigation, proceeded to the scene of occurrence, made an inspection in the presence of witnesses and prepared Ex.P.22-a rough sketch and also the Observation Mahazar-Ex.P.2 in that regard. The Inspector then conducted inquest on the dead bodies in the presence of witnesses and panchayatdars and prepared the Inquest Report which are marked as Exs.P.20 and 21 respectively.

(d) Following the same, the dead bodies were sent to Government Hospital along with requisition slips for the purpose of postmortem which are marked as Exs.P.4 and 6 respectively. P.W.7, the doctor attached to the Government Hospital conducted the postmortem on the dead bodies. In respect of the 1st deceased, Azhwar, he gave the postmortem certificate, Ex.P.5 and also in respect of the 2nd deceased, he gave the postmortem certificate, Ex.P.7, whereby he opined that both the deceased would appear to have died out of shock and haemorrhage due to injuries sustained by them.

(e) Pending investigation, the investigator came to know that all the three accused surrendered before the Judicial Magistrate. They were taken to police custody and were interrogated. All the accused volunteered to give the confessional statements. The admissible parts of the confessional statements of Accused Nos. 1 and 3 are marked as Exs.P.12 and 23 respectively. The material objects namely Aruvals which were recovered from Accused Nos. 1 and 3 on the basis of their confessional statements are marked as M.Os. 8 and 9. All the material objects recovered from the place of occurrence and from the dead bodies and also the aruvals which were recovered from the accused pursuant to the confessional statements, were subjected to chemical analysis by the Forensic Department pursuant to the requisition given by the Inspector through the Judicial Magistrate. Two reports were received, which are marked as Ex.P.10-Chemical Analyst''s Report and Ex.P.11-Serologist''s Report. On completion of the investigation, the investigating officer filed the final report.

(f) The case was committed to Court of Sessions. Necessary charges were framed. In order to substantiate the charges, the prosecution examined 16 witnessed and also relied on 23 exhibits and 13 material objects. On completion of the evidence on side of the prosecution, all the accused were questioned u/s 313 Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses. They denied them as false. No defence witness was examined. The Trial Court heard the arguments advanced on either side, took the view that the prosecution has proved its case beyond reasonable doubt, found the appellants/accused guilty as per the charges stated above and also awarded the sentence which is the subject matter of challenge before this Court in this appeal.

Mr. B. Sriramulu, learned Senior Counsel appearing for the appellants/accused, inter-alia made the following submissions:

(a) In the instant case, the prosecution rested its case on the evidence of P.Ws.1 to 3. P.Ws.1 to 3 are closely related to each other. Apart from that, they are closely related to both the deceased and thus their evidence has got to be carefully scrutinised. If that test is applied their evidence do not stand the test. According to P.Ws.1 to 3, they went over to the field to guard 400 sheeps which were kept in the field of 40 cents for the purpose of manuring. According to the prosecution the usual practice of the witnesses was to take weapons with them, but, they did not take any weapon that day when the occurrence has taken place at 3.00 a.m. and in the field, a light was shown as if it was available and all the three witnesses have witnessed the occurrence.

(b) Added further, the learned Senior Counsel that originally, in the F.I.R. it was shown that as if they were standing at a distance of 20 or 25 feet. Subsequently, it was corrected to 10 feet in order to show that they could have well seen the occurrence and thus, there was correction that was subsequently made with ulterior motive and in view of this alteration made in F.I.R., the vital document to the prosecution case, an adverse reference can be drawn against the accused.

(c) Further the learned Senior Counsel submitted that according to P.Ws.1 and 3, leaving P.W.2 they immediately left the place of occurrence and informed to P.W.4 who is one of the panchayatdars. From the evidence of P.W.4 it would be quite clear that when P.Ws.1 and 3 met P.W.4 immediately after the occurrence they have not mentioned the names of the assailants and thus, it would be quite clear that P.Ws.1 and 3 could not have seen the occurrence at all. Had they been witnesses to the occurrence, one would expect them to tell the names of the assailants. But, they have not done so and in the instant case even the evidence of P.W.2 would clearly indicate that P.W.2 could not have seen the occurrence at all. Even at the time of cross-examination, P.W.2 has candidly admitted that he was never examined by the police nor has he given any statement and for the first time, before the Court, he was telling about the case and thus, P.W.2''s evidence must be eschewed.

(d) The learned Senior Counsel also stated that it is highly improbable that P.W.6, the wife of the 1st deceased and the mother of the 2nd deceased, even after she was informed about the occurrence at about 4.00 a.m., did not go to the spot, which is situated within a furlong only, till 6.00 a.m. and the explanation given by her that she was deterred by the villagers from going over there, would make the evidence of P.W.6 false. Apart from that, after coming to know that two dead bodies were found in the place of occurrence, the villagers including P.Ws.1 to 3 and 6, went over to the place of occurrence and a false complaint was given roping all the accused herein. This also speaks about the improbabilities of the prosecution case.

(e) In the instant case, according to the eye witnesses, they went nearby to the dead bodies and immediately, they lifted both the deceased and thus, their clothes were tainted with blood. But, for the reasons best known to the investigator, those blood stained clothes from P.Ws.1 to 3 were not recovered. The non-recovery of the clothes would indicate that the evidence of P.Ws.1 to 3 that they witnessed the occurrence was false.

(f) Added further, the learned Senior Counsel, that in the instant case the investigator has gone to the extent of telling that he could not remember whether photographs were taken at the scene of occurrence. This would also indicate the fact that all these documents could have come into existence not at the place of occurrence, but otherwise. The learned Senior counsel also stated that P.Ws.2 and 3, were actually, at the time of occurrence, involved in a murder case and the persons who were present, were on inimical terms with the 1st deceased and the defence was able to show that the 1st deceased had number of enemies and thus, after seeing the dead bodies, they have taken into account the quarrel that arose between the 1st deceased and the 1st accused and would have roped all these accused. So far as Accused Nos. 2 and 3 are concerned, there is no motive available. Even as per the prosecution case, the quarrel that took place on the previous day was only in respect of the 1st accused and the 1st deceased. Even the quarrel, which according to the prosecution, was the motive for the occurrence, was not proved because number of coolies were employed at that time. Had it been so, the prosecution should have examined one of the coolies. But, the prosecution had not done so. It would also go to show that the prosecution has not proved the motive for the enmity and murder.

(g) In the instant case, these eye witnesses could not have seen the occurrence at all and the blood stained clothes were not recovered from P.Ws.1 to 3 and all improbabilities shown above were not considered by the Trial Court. But the Trial Court was carried away by the accusation made. That was because of the double murder and there are three eye witnesses and the Lower Court has not marshalled the evidence properly, but has based the conviction and awarded sentence, which have got to be set aside by this Court.

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

In the instant case, it is not a fact in controversy that one Azhwar, the 1st deceased, the husband of P.W.6 and the 2nd deceased, the son of P.W.6 and the 1st deceased were done to death in an incident that took place in the night hours of the date of occurrence, i.e., 31.7.1995. Following the inquest made by the Investigating Officer on both the dead bodies and preparation of the Inquest Reports in the presence of witnesses and panchayatdars, both the dead bodies were subjected to postmortem by P.W.7, the doctor who has given two certificates, Exs.P.5 and 7, wherein he has categorically opined that both the deceased would appear to have died out of shock and haemorrhage due to the injuries sustained by them. The fact that both the deceased died out of homicidal violence was never questioned by the appellants/accused at any stage of the proceedings and hence, without any impediment, it can be recorded so.

In order to substantiate the case that all the three accused were armed with deadly weapons, namely, aruval and attacked both the deceased at the time and place of occurrence and caused instantaneous death, the prosecution rested its case on the direct evidence by marching three witnesses, viz., P.Ws.1 to 3.

The Court has considered all the comments and attacks made on their evidence. But, the Court is unable to agree with the contentions put forth by the learned Senior Counsel. According to P.Ws.1 to 3, they went to the field on the day in order to guard 400 sheeps which were kept for the purpose of manuring in the field. That was for a period of ten days and accordingly, they went that night and they were in the field at that time and they actually witnessed the occurrence. All the three accused came over there with aruvals and attacked the 1st and the 2nd deceased who were actually sleeping. The contention put forth by the learned Senior Counsel is that these three witnesses could not have seen the occurrence for the reason that they did not carry any weapon, cannot be a reason to discountenance their evidence. According to the witnesses, it was not their practice to take weapon every day and on that day, they did not carry. Therefore, that would be a proper explanation offered by the witnesses themselves.

Insofar as P.W.2 is concerned, he has deposed that he was never enquired by the police nor has he given any statement before the police. But, he came before the Court for the first time to give evidence. Even assuming that this contention can be accepted, a doubt can be casted on the evidence of P.W.2. Insofar as the evidence of P.Ws.1 to 3 is concerned, if the test of careful scrutiny is applied, the prosecution has passed the test. According to P.Ws.1 and 3, they immediately, after seeing the occurrence, rushed to the house of P.W.4, the panchayatdar, who participated in the panchayat when a quarrel arose between the first deceased and the first accused and informed him about the occurrence. This itself would indicate the fact that they thought it fit to immediately bring it to the notice of the person, who participated in the panchayat when a quarrel arose between the first deceased and the first accused and there was no occasion for them to go immediately to P.W.4 during night hours, knock the doors and inform him about the occurrence. The fact that they went to the house of P.W.4 and informed him, was not only spoken to by P.Ws.1 and 3 but also, by P.W.4 and thus, the fact of the occurrence was immediately brought to the notice of P.W.4 by P.Ws.1 and 3, since he was the panchayatdar. It is true that they went to P.W.4''s house, but they felt not to inform the names of the assailants, in the given case where they have seen the double murder and they are also closely related to both the deceased persons. One can visualise in a grip of terror and fear, what would have been passing in their mind. It is true that they have not gone to the rescue of the deceased, but they have immediately ran to P.W.4''s house. It remains to be stated that one will not have the same frame of mind or anything passing in his mind when he is witnessing the occurrence or in a given situation, the human mind would act differently. In the instant case, they did not go near the deceased to rescue them. But, they ran to the village and informed the same to P.Ws.4 and 6. P.W.6 has categorically spoken to the fact that when she was immediately informed about the occurrence by P.Ws.1 and 3, she began to cry. When she was about to go to the scene of occurrence, she was stopped by the villagers. Hence, she could not go. This contention has got to be rejected for the simple reason that she being a woman, was deterred by the villagers not to go to the scene of occurrence immediately.

Now, what is to be seen is whether P.Ws.1 and 3 have witnessed the occurrence or not and whether the statement was recorded by the Inspector on the very day, i.e., on 31.7.95 and whether it reached the Court on the very day and whether the same was received by the Judicial Magistrate or not?

On perusal of the material records, it is pertinent to point out that the statements of the eye witnesses P.Ws.1 and 3 were recorded on the very day and reached the Judicial Magistrate which would be indicative of the fact that they have also seen the occurrence. In the instant case, P.W.1 has given the statement to the Sub-Inspector on the strength of which a case came to be registered. So, it is quite clear that the occurrence took place at 3.00 a.m. and the F.I.R. was prepared at 6.00 a.m. and it reached the Judicial Magistrate at about 9.45 a.m. on the same day. The statements of P.Ws.1 to 3 have also reached and thus, it would indicate the fact that the entire episode is given in the F.I.R and also the Section 161 statements have also reached the Court. All would indicate the truth of the prosecution case.

It is true that in a given case like this, the non recovery of the blood stained clothes from P.Ws.1 to 3 would affect the prosecution case, if it was the only piece of evidence available to the prosecution case. But, in the case on hand, the eye witnesses were available to narrate the entire incident and therefore, their evidence inspires the confidence of the Court. In a given case, where there was an eye witness available and his evidence inspires the confidence of the Court, mere non recovery of the blood stained clothes from the witnesses who according to them, lifted the dead bodies, cannot be a reason to reject the prosecution case. It has to be further pointed out that from the place of occurrence a pillow and a bed sheet and other material objects were recovered and were sent to Court and this would indicate that they were recovered and also would be pointing to the fact that P.Ws.1 to 3 have gone over there for the purpose of guarding.

At this juncture, it remains to be stated that the medical evidence stood in full corroboration with the ocular testimony. The contention put forth by the learned Senior Counsel is that 100 grams and 150 grams of semi digested food particles were found in the stomach of the respective bodies. According to P.W.1 they took dinner at about 7.00 p.m. and reached the place. The contention that the fact that semi digested food was found in the stomach would indicate that the occurrence could not have taken place at 3.00 a.m. as spoken to by P.Ws.1 to 3 cannot be accepted. At this juncture, it has to be pointed out that P.W.6 is a villager. Hence, as regards the fact that the deceased have taken food by 7.00 p.m. or a few hours later. One cannot expect her to tell the exact time as found in watch. Also, taking into consideration the time of taking food and also 100 grams and 150 grams of semi digested food particles found in the stomach by the doctor P.W.7, cannot by itself cast a doubt on the prosecution case to disbelieve the evidence of P.Ws.1 to 3 that they have witnessed the occurrence.

Under such circumstances, this Court is unable to agree all or any one of the contentions put forth by the learned Senior Counsel appearing for the appellants/accused, for the reasons as stated supra. In the instant case, the three accused with a common intention, armed with weapon, went to the spot, attacked the deceased and caused double murder simultaneously and the death was instantaneous. The Trial Court has properly marshalled the evidence, considered the same and found the accused guilty as per the charges and the Trial Court has recorded the conviction and awarded the sentence and rightly too.

This Court finds no reason to disturb the judgment passed by the Trial Court. Hence, the appeal must fail and fails and accordingly, the same is dismissed.

It is reported that the appellants/accused are on bail. Hence, the learned III Additional District and Sessions Judge is directed to commit them to prison to undergo the sentence awarded by the Trial Court.