Nalli alias Nallianna Gounder vs The State

K.M. Natarajan, J.—The first accused in S.C. No. 96 of 1984 on the file of the learned First Additional Sessions Judge, Salem, has

preferred this appeal challenging the legality and correctness of his conviction u/s 302, Indian Penal Code and the sentence to undergo

imprisonment for life and also the conviction u/s 324, Indian Penal Code and the sentence to undergo rigorous imprisonment for six months. Both

the sentences were directed to run concurrently. The appellant and his wife were tried for four charges on the allegation that they along with

juvenile accused Gunasekaran and Vijaya on 15-8-1983 at about 3 p.m. attacked the deceased Chinnusami and party, in which the juvenile

accused Gunasekaran caught hold of the deceased while the appellant (first accused) stabbed him with knife and when the wife of the deceased

namely Kaliammal (P.W. 1) intervened, the second accused Palaniammal prevented her from doing so by obstructing her while the juvenile

accused Vijayan obstructed witness Vijaya (P.W. 2), and when the deceased wriggled out and ran, the appellant again stabbed him and as a result

of the same he died. During the course of the same transaction, the appellant also stabbed P.Ws. 1 and 2 and caused injuries. To substantiate the

above charges, the prosecution examined P.Ws. 1 to 14, filed Exs. P-1 to P-23 and marked M.Os. 1 to 14.

The case of the prosecution as disclosed from the oral and documentary evidence can be briefly stated as follows : The first accused is the

husband of the second accused. Juvenile accused Gunasekaran and Vijaya are the son and daughter of accused 1 and 2. P.W. 1 is the wife of the

deceased Chinnusami. P.W. 3 is the wife of one Subbu Goundar. They are all residents of Bodinayakanpatti. P.W. 1 along with her husband and

daughter P.W. 2 were living in the field shed at Bodinayakanpatti. The deceased purchased 45 cents of land from Ponnusami Padayachi about a

year prior to the occurrence. Karupanna Goundar (father-in-law of the first accused) failed in this attempt to purchase the said property. Hence he

is aggrieved by the same. About two months after the purchase, the deceased and P.W. 1 went in a cart in order to dig mud in the land purchased.

At that time, the first accused and his father-in-law Karupanna Goundar obstructed the cart from proceeding. Thereupon they brought 10

panchayatdars and in spite of the advice given by the panchayatdars, they refused to allow them to proceed. Thereupon the panchayatdars fought

with them and with great difficulty, they were able to return to their house with the cart and in respect of the same, her husband reported the matter

to the police and on account of the same, there was enmity between the first accused and the deceased.

On the date of occurrence, namely, on 15-8-1983 at about 11 a.m. P.W. 2, daughter of P.W. 1 and the deceased, was grazing buffalo in their

field, adjacent to the land of one Kailasa Goundar. The first accused was the lessee of the said Kailasa Goundar and he was cultivating the same.

P.W. 4 and one Madheswaran were also grazing their buffaloes at that time. The first accused chased P.W. 2 in order to beat her. P.W. 2 ran and

caught hold of P.W. 4 who pleaded with the first accused not to beat the innocent girl and prevented him from beating. The first accused drove

away the buffalo. Thereupon P.W. 2 who was frightened ran and informed her mother P.W. 1. The first accused also followed her. P.W. 1

questioned the first accused as to why he beat her daughter and if he had asked her to take the buffalo, she would have taken the same, to which

the first accused abused her in filthy language and left the place.

At about 3 p.m. while the deceased and P.Ws. 1 and 2 were in their house along with another daughter Manimalan, accused 1 and 2 and their

son and daughter, namely, juvenile accused Gunasekaran and Vijaya came in front of their house. Accused 1 and 2 shouted that they gave

information to the forest guards in respect of possession of sandalwood billets in their field and they would even go to the extent of setting fire to

their house, and hence they would not leave them and do away with them. Thereupon the first accused picked up M.O. 1 soori-knife from inside

his shirt and ran to stab the deceased. Chinnusami got frightened and ran towards west along the road leading to Bodinayakanpatti from east to

west. The first accused chased. Juvenile accused Gunasekaran also followed them. P.Ws. 1 and 2 also ran behind them crying. After running some

distance the first accused obstructed the deceased. Juvenile accused Gunasekaran caught hold of both the hands of the deceased from behind. The

first accused stabbed him on the chest with the suri-knife M.O. 1. After receipt of the stab the deceased wriggled out and again was running

towards west along the road. Others also followed him. The deceased fell down in front of the cattle shed of one Subbu Goundar. The first

accused stabbed him with knife indiscriminately while he was rolling. The second accused caught hold of P.W. 1 while the juvenile accused Vijaya

caught hold of P.W. 2. P.Ws. 1 and 2 wriggled out of their clutches and ran to the place where the deceased was stabbed by the first accused,

namely, in front of the cattle shed of Subbu Goundar. At that time, the first accused had stabbed P.W. 2 on the head, with the knife. When P.W. 1

approached the first accused, Gunasekaran beat her on the head twice and on the hand, once. The first accused also stabbed P.W. 1 on the left

shoulder twice. When P.Ws. 1 and 2 raised a hue and cry, the first accused and the juvenile accused Gunasekaran ran away along with their

respective weapons. P.W. 1 took the deceased to the southern side of the road under the shade of a tree, and when she gave water to her

husband, he could not gulp and he succumbed to the injuries. Villagers gathered. One Kuppusami took P.W. 1 and P.W. 2 in a route bus to

Namakkal hospital.

P.W. 5, Civil Assistant Surgeon attached to the Government Hospital, Namakkal, examined P.W. 1 who was brought by one Palaniandi

Goundar, brother of the first accused, at about 5.45 p.m., for certain injuries said to have been caused at about 3 p.m. by four known-persons

(two males and two females) with knife. He found on her :

An incised wound 3 c.m. x 1/2 c.m. breadth on the left shoulder - back side.

An incised wound 2 c.m. in length 2"" away from wound no. 1 - skin deep.

A contusion on the right forehead 3"" x 2"" in size.

A contusion on the scalp right of centre 2"" x 2"" in size.

A small abrasion on the centre of upper lip.

A linear abrasion 6"" in length on the right forearm. He was of the opinion that those injuries are simple in nature. Injuries 1 and 2 could have

been caused due to stab with knife while she was standing and injuries 3 and 4 could have been caused by beating with stick. Injuries 5 and 6

could not have been caused by beating with stick. All the injuries could have been caused at about 3 p.m. Ex. P-2 is the would certificate.

At about 6.10 p.m. P.W. 5 examined P.W. 2 for certain injuries said to have been caused on the same day (15-8-83) at about 3 p.m. and to be

due to assault by some known person with coconut branch (matter vernacular omitted). Ex. P-3 is the wound certificate. (In the wound certificate,

P.W. 5 has wrongly noted that the injury was said to have been caused at 6.10 p.m.). According to him, the injury is :

A cut injury on the scalp left parietal area 3"" length up to the skull bone depth. No clinical evidence of bone fracture with contusion around the

wound to about 4"" x 4"" size.

He opined that the injury is simple in nature and it could not have been caused while she was standing by stabbing with M.O. 1 knife and the injury

could have been caused at about 3 p.m.

At about 6.40 p.m. P.W. 5 examined the first accused who was brought by his relation Karuppanan, for report as to certain injuries said to

have been caused on the same day (15-8-1983) at about 3 p.m. and due to assault by two known persons (one male and one female) with knife.

He found on him the following injuries :

A cut injury on the base of the left thumb on the palmar aspect on the web 6 c.m. x 1 c.m. size.

A contusion on the left forearm 6"" from the left elbow.

A contusion on the left leg lateral aspect 3"" x 2"".

Small contusion on the right shoulder 1"" x 1"".

Complaint of pain all over the body.

He was of the opinion that the above injuries are simple in nature. Ex. P-4 is the wound certificate issued by him. Those injuries could have been

caused one hour after the time alleged or prior to the time alleged, namely 3 p.m.

PW 5 treated PWs 1 and 2 and the first accused as out-patients. He sent intimations of accident to the Namakkal Police Station. PW 11, Head

Constable attached to Namakkal Police Station on receipt of intimations of accidents from PW 5, made an entry in the General Diary and went to

the Government Hospital at about 6.35 p.m. According to him, PWs 1 and 2 were not in the hospital. Thereupon he returned to the police station

and made an entry in the General Diary which is marked as Ex. P. 17. He sent intimation of accident to Erumaipatti Police Station (concerned

police station) through a constable. PW 12, Grade I constable of Namakkal Police Station, on receipt of intimation of accident in respect of the

injuries sustained by the first accused, received from PW 5, went to the Government Hospital, Namakkal, after making Ex. P. 18 entry in the

General Diary at about 9.30 p.m. Since the first accused was not found there, he returned to the police station and entered in the General Diary at

about 10.30 p.m. which is marked as Ex. P. 19. He sent the intimation of accident to the concerned Erumaipatti Police Station.

In the meantime PWs 1 and 2 along with Kuppusami, went to Erumaipatti Police Station at about 8.30 p.m. and reported the matter. PW 13

reduced the complaint given by PW 1, read over the same and obtained her thumb impression. It is marked as Ex. P. 1. On the basis of Ex. P. 1,

PW 13 registered a case in Crime No. 65 of 1983 under sections 341, 302 and 324, I.P.C. and prepared first information report Ex. P. 20 with

copies thereof. He sent Exs. P. 1 and P. 20 to the Judicial Second Class Magistrate, Namakkal, and copies to the higher officials and thereupon

proceeded to the scene place and kept watch over the dead body.

PW 14, Inspector of Police, Namakkal, got a copy of the first information report at about 11.15 p.m. He reached the scene village at 6 p.m.

on the next day, namely, 16-8-1983. He inspected the scene place at 6.15 a.m. in the presence of PW 7 and another prepared the observation

mahazar Ex. P. 7 attested by witnesses and drew the rough sketch Ex. P. 21. He held inquest over the dead body of Chinnusami between 6.15

a.m. and 10.15 a.m. and during the inquest, he examined PW 1 to 3 and others. Ex. P. 22 is the inquest report prepared by him. After completing

the inquest, he handed over the dead body to PW 9 with the requisition Ex. P. 5 to the Medical Officer to conduct autopsy. He continued the

investigation. He seized blood-stained earth from three places (in front of the cattle shed of Subbu Goundar, in the road at a distance of 90 feet

from the cattle shed and where the deceased was lying), namely, M.Os. 11 to 13 under cover of mahazar Ex. P. 8 attested by PW 7 and another.

At about 11 a.m. he seized M.Os. 2 and 3 clothes of PW 1 and M.Os. 4 to 6 clothes of PW 2, under cover of mahazar Ex. P. 9 attested by PW

He searched for the accused. But, they were not available. He examined PWs 4 and 7.

PW 6, Medical Officer attached to the Government Hospital, Namakkal, in pursuance of the requisition Ex. P. 5 received from PW 14,

conducted autopsy on the dead body of Chinnusami at about 11.40 a.m. on 16-8-1983. He noticed the following external injuries :-

An injury on the right side of his chest in the 3rd inter-costal space closed to the sternum 1 1/2"" x 1/2"" x 3"" depth. Margin were incised.

An injury 1"" above the xiphisternum. It was about 1"" x 1/2"" x 3"" depth. Margins were incised.

An injury closed to No. 2 about 3/4"" x 1/2"" x 1/2"". Margins were incised.

An injury over the right supra clavicular region about 1/2"" x 1/4"" x 1/4"". Margins were incised.

An injury over the cubital fossa about 3"" x 1 1/2"" x 1/2"". Margins were incised.

An injury on the 8th right inter-costal space in the mid-axillary line about 1"" x 1/2"" x 1/2"". Margins were incised.

An injury 1"" lateral to No. 6. It was about 1"" x 1/2"" x 2"" depth. Margins were incised.

An injury lateral to the 7th injury on the post right axillary line 1 1/2"" x 1/2"" x 2"" depth. Margins were incised.

An injury lower inter scapular region 2"" x 1"" x 5"" depth. The margins were incised.

An injury over mid portion of the left scapula about 1 1/2"" x 1 1/2"" x 5"" depth. Margins were incised. O/E - Opening of thorax into sternum

fractured. Injury No. 2 had gone up to right atrium and ventricle. The pericardium injured. In right lung, there was an injury about 1"" x 1/2"" x 2

depth. In the left lung, there was an injury in the upper lobe about 1/2"" x 1/2"" x 1/2"". Margins were incised. Right lobe of liver injured about 1/2"" x

1/2"" depth. 5th thoracic and spine fractured. Stomach, kidney, spleen were normal.

He reserved his opinion pending receipt of report of injury No. 1 which has gone up to right ventricle. According to PW 6, the deceased would

appear to have died as a result of external injury No. 1. Ex. P. 6 is the post-mortem certificate issued by him. Internal injuries to the ventricle and

right atrium correspond to external injury No. 1. The internal injury to the left lung corresponds to external injury No. 10. According to him, one of

the external injuries Nos. 1 to 3 could have been caused while he was standing by stabbing with a weapon like M.O. 1, while the rest of the

injuries could have been caused with knife while he was rolling. After receipt of the injury to the chest, he could have run to a distance of about 90

feet. External injuries Nos. 1, 2, 7, 9 and 10 with the corresponding injuries are necessarily fatal. The deceased would have died with 5 to 10

minutes after receipt of the injuries. Death could have occurred 16 to 24 hours prior to post-mortem examination.

PW 14 arrested the first accused in the presence of PW 8 and another in the back of Mankaradu, near his father-in-law Karuppanna

Gounder''s house. He volunteered to give a confessional statement. It was reduced into writing. The admissible portion is marked as Ex. P. 10

attested by PW 8 and another. In pursuance of the same, he took PW 14, PW 8 and others to Bodinayakanpatti-Mankaradu Road and from a

thorny bush near palmyrah tree, he took out M.O. 1 and produced the same. It was seized under cover of mahazar Ex. P. 11 attested by PW 8

and another. Thereupon he brought the first accused along with M.O. 1 to the police station and he seized his clothes M.Os. 9 and 10 under Form

No. 95, Ex. P. 23. Thereupon he sent him to judicial remand on the next day. He arrested the juvenile accused Gunasekaran on 17-8-1983 and

sent him also to judicial remand. He examined PWs 5 and 6 on 18-8-1983. He gave a requisition Ex. P. 12 to the Judicial Second Class

Magistrate to send the blood-stained articles for chemical analysis.

PW 10 is the Head Clerk attached to the Court of the Judicial Second Class Magistrate, Namakkal, and he deposed that in pursuance of the

requisition Ex. P. 12, the material objects were sent to the Chemical Examiner. Later, Ex. P. 14 report of the Chemical Examiner an Ex. P. 15

report of the Serologist were received in the office of the Judicial Second Class Magistrate.

The second accused and the juvenile accused Vijaya got anticipatory bail from this court. After completing the investigation, PW 14 laid

charge-sheet against both the accused as well as both the juvenile accused on 31-10-1983.

When the accused were examined, they totally denied the prosecution case, and in addition they filed written statements. The first accused in

his written statement would state that there is no enmity between him and the deceased on account of purchase of land by the deceased. In respect

of the dispute for taking of mud between his father-in-law and the deceased, it is stated that it was settled in a panchayat and the muchalikka Ex.

D-1 was executed. Thereupon there was no enmity between them. He never interfered in respect of the said dispute on account of digging of mud.

There was no enmity between him and the deceased. He never obstructed the cart of the deceased which was taken for digging mud. However, he

would state that on 15-8-1983 at about 1 p.m. he was in his leasehold land belonging to one Kailase Goundar, where he raised cholam. P.W. 2

was grazing buffalo in the said land. When he questioned her, she abused him vulgerly. He was unable to bear the same and was provoked. He

took account branch (vernacular matter omitted) and beat her on her head and she sustained an injury. Later, at about 3 p.m. the deceased and

P.W. 1 came and obstructed him while he was proceeding to the village in the road. He ran to certain distance. The deceased questioned him for

having beat P.W. 2 in the morning and challenged him what he would do now. The deceased, who was having a suri knife in his hand, and P.W. 1

who was having a bamboo stick in her hand, shouted that they would finish him that day itself. The deceased attempted to stab him on his chest

and he warded off the same with his left hand and he sustained an injury below the left thumb. Again, the deceased attempted to stab him. He

managed to snatch the knife from his hand. The deceased tried to snatch the knife from him saying that he would not leave him without killing.

Apprehending danger to his life, he stabbed him 2 or 3 times. After receipt of the stab injuries he picked up a stone and attempted to hit him.

Again, in order to avoid the hit and apprehending danger, he gave one stab. At that time, P.W. 1 beat him with stick on his left forearm, left leg and

right shoulder. The first accused dropped the knife and snatched the stick from P.W. 1''s hand and beat her with stick on her hand and head and

thereafter he dropped the same and left the place. This was known to D.W. 1 Ramasami and another Bommannan alias Periannan son of

Muthuveeran of Bodinayakanpatti. He would state that at that time, P.Ws. 2 and 3 were not present. After receipt of the injuries, the deceased fell

down. Thereupon he was taken by lending hand in front of the cattle shed of P.W. 3, where he died. Since P.W. 3 objected for putting the dead

body in front of her cattle shed, the body of the deceased was taken to a place near the pipe. The second accused, the juvenile accused

Gunasekaran and Vijaya were not there. In order to wreak vengeance on the members of the family, all the members of the family were falsely

implicated and the case was put up against them and they falsely implicated. He immediately went to the Government Hospital for taking treatment.

While he was in the hospital, he was taken to the Namakkal police station where he was detained and his statement was recorded wherein he

affixed his signature. About two days later, he was sent to Court. He never gave any confessional statement to P.W. 14 and never produced M.O.

He was never arrested at Mankaradu as alleged. P.W. 4 was employed in the field of P.W. 1 and hence he is deposing falsely. The son of P.W.

3 had stolen a watch from the Cotton Market Society of Namakkal and he was caught and produced by the first accused. Further, the first

accused was responsible for levying fine to the son of P.W. 3 in the village panchayat for breaking glass and causing damage in Drowpathi Amman

temple. P.W. 3''s family members are on inimical terms with them. Hence they are deposing falsely. He was further stated that his son was in his

co-brother Chandran''s house at Erumaipatti. From there he was brought by police. This was known to D.Ws. 2 and 3. He has further stated that

his daughter Vijaya attained puberty on the day of occurrence.

The second accused in her written statement would state that she is innocent and she has not committed any crime. The case has been falsely

put up against her and her son and daughter. On the morning of 15-8-1983 her daughter Vijaya attained puberty. Hence, she and her daughter

were in their house. They have nothing to do with the occurrence at 3 p.m. at the road leading to Bodinayakanpatti to Mankaradu. Her son was in

her sister''s house at Erumaipatti and he was arrested there and brought by police. There was absolutely no enmity between the deceased and

themselves. No such occurrence took place as deposed by P.Ws. 1 to 3 P.W. 4 was employed under P.W. 1.

Three witnesses were examined on the side of the defence. D.W. 1 Ramasami would depose that he is a resident of Chinnaperumamapatti

which is about 3 miles away from Bodinayakanpatti, that he has got a sister by name Chinnammal, that Chinnammal is now staying at Malayasia

along with her family members and that he has been supervising and cultivating her land at Bodinayakanpatti which is adjacent to the land of

Kailasa Goundar which was being cultivated by the first accused. According to him, he knew all the accused and P.Ws. 1 and 2 as well as the

deceased. On the day of occurrence, namely, on 15-8-1983. Independence Day, at about 3 p.m. he was proceeding from his sister''s land to his

place via Bodinayakanpatti. At that time, the first accused was proceeding ahead of him at a distance of 100''. On the west of the house of the

deceased and his land, there was a road. Chinnusami came to the junction of the said road Mankaradu-Bodinayakanpatti and the cart road and

raised a noise. His wife also followed him, Chinnusami obstructed the first accused and stabbed him with a knife. The first accused warded off the

blow with his left hand. The first accused sustained an injury in his left hand, below the thumb. The first accused caught hold of the right hand of the

deceased, with his left hand, and snatched the knife with his right hand. The deceased tried to get back the knife from the first accused. Both of

them were struggling. Apprehending danger to his life, the first accused stabbed the deceased on his chest and abdomen 4 or 5 times. After receipt

of the stab, the deceased bent down in order to take a stone. While he was picking up a stone, the first accused against stabbed him on the back.

P.W. 1 beat him with a stick on his left hand. On seeing this, he (D.W. 1) returned to his sister''s field. He noticed two persons coming at that time

at a distance of half a furlong. One Bomman was standing at a distance or 20'' from him at the time of the occurrence. He too left the scene place

towards east. At the time of the occurrence, the second accused and the juvenile accused Gunaskaran and Vijaya were not there. The next day

when he came to the field of his sister, he was examined by police. D.W. 2 is the co-brother of the first accused. D.W. 3 is a resident of

Singalamkombai hamlet of Erumaipatti and a neighbour of D.W. 2. They were examined to speak about the fact that the juvenile accused

Gunasekaran was at Erumaipatti at the time of occurrence and he was taken away the next day by police from D.W. 2''s house.

The learned Sessions Judge after taking into consideration the evidence, oral and documentary, for the reasons stated in the judgment came to

the conclusion that the prosecution has not proved the guilt of the second accused and consequently acquitted her. However, the learned Sessions

Judge convicted the first accused under the 1st charge (Section 302, I.P.C.) and sentenced him to undergo imprisonment for life and convicted

under the 3rd charge (Section 324, I.P.C.) and sentenced him to undergo R.I. for six months and acquitted him also under charge No. 4. The

juvenile accused who were tried separately were also acquitted. The convicted first accused alone has preferred this appeal.

The learned counsel for the appellant Mr. K. V. Sridharan took us through the recorded evidence and made various submissions. According

to the learned counsel, the prosecution failed to establish the motive for the commission of the crime by the first accused. Though an attempt has

been made to establish motive by putting forth three instance, the prosecution miserably failed to establish the same and as such there is no motive

at all to connect the accused with the crime. Next it was contended by the learned counsel for the appellant that as regards the actual occurrence,

the prosecution relied on the evidence of P.Ws. 1 to 3. Among them P.Ws. 1 and 2 are the wife and daughter and they are interested. P.W. 3 is a

witness who is inimically disposed to the accused. The learned counsel would submit that when the evidence of the witnesses had been disbelieved

in respect of a major portion of the prosecution case and when the second accused as well as two juvenile accused have been acquitted on the

very same evidence, the trial Sessions Judge ought not to have convicted the appellant especially when this part of the incident formed integral part

and that cannot be separated. He would vehemently argued that the medical evidence adduced in this case is contradictory to the ocular testimony

and the medical testimony falsifies the presence of these witnesses as their evidence with regard to the manner of attack and the weapon and the

nature of the injuries has been falsified by the medical evidence. He would submit that when it has been found that the juvenile accused

Gunasekaran has been falsely implicated, their evidence is tainted and cannot be relied on for convicting this appellant. The learned counsel

vehemently argued that the inordinate and unexplained delay in launching the first information report would indicate that the same has been

prepared after due deliberation and consultation and that too, in order to deprive the appellant''s right of self-defence. He would submit that the

earlier report given by P.W. 1 has been suppressed and it has been established from the very admission made by P.Ws. 1 and 2 themselves. The

non-examination of independent witnesses, taking into account the scene of occurrence and the alleged time of occurrence, would be fatal to the

case of the prosecution. The non-explanation of the injuries sustained by the appellant would be sufficient to throw a doubt about the genesis of the

occurrence and the subsequent facts. The learned Judge ought to have held that the version of the accused is not only probabilised by the

prosecution evidence itself but also got substantiated by the defence version with regard to self-defence. According to the learned counsel, the

investigation in this case is not free from suspicion. The learned Judge ought not to have relied on the alleged recovery of M.O. 1 especially when

this appellant admits stabbing but under different circumstances. Finally the learned counsel would urge that in view of the various infirmities, the

conviction of the appellant is not sustainable as there is no acceptable evidence on the side of the prosecution to hold him liable for conviction for

the offences alleged. Per contra the learned Additional Public Prosecutor would submit that the learned trial Judge has considered the evidence in a

proper perspective and arrived at a correct conclusion and hence no interference is called for.

The point that arises for consideration in this appeal is, whether the prosecution has proved the guilt of the first accused beyond all reasonable

doubts and whether his conviction is sustainable.

We have elaborately set out the case of the prosecution and that of the first accused/appellant in the narrative part of the judgment and we do

not propose to delve at length in this discussion portion and we feel it is suppliar to consider only the relevant points which arise for consideration in

this appeal. First we will consider whether there is sufficient motive for commission of the crime by this accused. The prosecution put forward three

instance of motive for connecting the accused with the commission of the offence. It is the evidence of P.W. 1 that her husband/deceased

purchased 45 cents of land from Ponnusami Padayachi of Alanganatham about one year prior to the occurrence and the said land is adjacent to

the land of Karuppana Goundar who is the father-in-law of the first accused. It is stated that after the purchase of the land by the deceased, the

first accused came and questioned the deceased as to how he can purchase the land when Karuppana Goundar wanted to purchase the same. It

was vehemently argued on behalf of the appellant that no sale deed has been filed in this case and none of the persons connected with the said

purchase has been examined. The vendor Ponnusami Padayachi was not examined. Karuppana Gounder was not examined. There is absolutely

nothing to show that Karuppana Goundar ever wanted to purchase the land which was later purchased by the deceased and on account of the

same there was dispute between them. Further, the first accused has nothing to do with the same. The mere fact that the first accused is the son-in-

law of Karuppana Konar by itself is not sufficient to hold that he is inimically disposed with the deceased. Even in the first information report as

well as the inquest statement, it has not been so stated. The next instance which is relied on by the prosecution was that about two months

thereafter the deceased and P.W. 1 went in a bullock cart to dig mud in their land. Karuppana Goundar and the first accused obstructed. The

deceased brought ten panchayatdars. Chidambaram and other panchayatdars asked them to leave the cart; but they refused to allow the cart. The

Panchayatdars fought with them. Thereafter they returned with the cart. In respect of the same, the deceased reported the matter to police and on

account of the same there was enmity between the first accused and the deceased. In this connection, the learned counsel for the appellant

vehemently argued that none of the panchayatdars was examined. It really such an occurrence took place, the best evidence would be the

evidence of the panchayatdars. Even the investigating officer has not chosen to examine anyone of them and cite them as witnesses. Further, if

really such occurrence took place and the deceased reported the matter to the police, the complaint said to have been preferred by the deceased

would be the best evidence to probabilise the said circumstance. But, in this case the prosecution has not chosen to file the complaint said to have

been given by the deceased. Further, in cross-examination, P.W. 1 has also stated that police enquired and specified them and thereafter no

petition or case has been given. Though an attempt has been made in the first instance that such occurrence took place and a complaint has been

given, it has been proved to be false in cross-examination as it is stated that such complaint was not given. In the circumstances, it is doubtful

whether such occurrence could have taken place. P.W. 1 has fairly admitted that she has not stated in Ex. P. 1 that there was enmity between the

appellant and her husband on account of the report said to have been given to police. She has also admitted that she did not tell the police that the

first accused questioned the deceased as to how he could purchase the land which was intended to be purchased by Karuppana Goundar. On the

other hand, it is the contention of the appellant that there was ridge dispute between the deceased and Karuppana Goundar about two years prior

to the occurrence and that was settled and that a muchalikka Ex. D-1 was executed on 26-4-1982 between Karuppana Goundar and Kaliammal

(wife of the deceased Chinnusami) in respect of digging up of mud adjoining the common ridge between the two lands. According to the appellant,

after the muchalikka, the civil suit was withdrawn and they were on cordial terms and that there was no dispute whatsoever between Karuppana

Goundar and the deceased''s family. In any event, the first accused has nothing to do with the dispute and that he was not a party to Ex. D-1 or

any of the dispute between Karuppana Goundar and the deceased family. Yet another motive is put forward by the prosecution. It is stated that

the first accused and his wife and children were said to have uttered after coming in front of the house of the deceased that it was only the family of

the deceased who gave information to the forest officials about the possession of sandalwood billets in the field of the first accused, and having

gone to the extent of exposing them to forest officials, they would even set fire to their house. Hence they would not leave them without doing them

away. It is to be noted that there is absolutely nothing to show that there was any case against the accused for possession of sandalwood billets.

Further, none of the forest officials was examined to the effect that information about the possession of sandalwood billets by the appellant was

given to them by anybody much less the deceased''s family. On the other hand, P.W. 1 herself would admit that they did not inform anybody as

alleged and they never gave any such complaint or information against the accused and at no time the forest officials examined them. In the

circumstances of the case the version of the prosecution that the accused challenged the deceased for having given information to the forest officials

in respect of possession of sandalwood billets and also said that the deceased would even go to the extent of setting fire to their house, is without

any basis and there is absolutely nothing to substantiate the said version and the prosecution has miserably failed to establish the same.

The prosecution also relied on the incident which took place on the morning of the day of occurrence (15-8-83) and that is said to be

immediate motive for the occurrence at 3 p.m. According to the evidence of P.Ws. 1, 2 and 4 on the date of occurrence at about 11 a.m. P.W. 2

was grazing buffalo on the northern edge, adjacent to the leasehold land of the first accused. The first accused objected to the same and drove

away the buffalo and also chased P.W. 2 P.W. 2 got frightened, ran and caught hold of P.W. 4 who was grazing bulls. Since P.W. 2 abused and

provoked the first accused, the first accused beat her with coconut branch on her head. It is stated that P.W. 4 questioned the first accused and he

did not pay heed to his words. Thereupon also he chased P.W. 2 P.W. 2 went and reported the matter to her mother P.W. 1 who questioned him

as to why he was chasing her daughter. At that time, the first accused abused her also in filthy language. According to the prosecution, it is on

account of the same the first accused and party, consisting of the second accused (wife of the first accused) and their daughter and son, came in

the evening at about 3 p.m. and attacked them. On the other hand, it is the contention of the accused that in the morning incident, even as per the

finding of the trial Judge, P.W. 2 was beaten with coconut branch on her head and she sustained the injury, and the version of the accused is more

probable that only because P.W. 2 grazed buffalo in the leasehold land of the first accused, the first accused could have objected to the same and

when P.W. 2 resisted and abused him, the first accused beat her and caused her injury. It is contended that it is clear from the evidence of the

Medical Officer that she sustained injury only due to beating with coconut branch in the morning, and not as alleged by P.W. 2 in her evidence. It is

more probable that the deceased party being aggrieved by the attack on P.W. 2 by the first accused, would have come in the evening at 3 p.m.

and questioned the first accused and attacked him. In any event, that cannot be the motive for the accused attacking the deceased, even according

to the prosecution, P.W. 2 was grazing her buffalo in the leasehold field of the first accused and she was also beaten. It is only on account of the

fact that P.W. 2 was beaten, the deceased party might be aggrieved and they might have taken the cudjels and came to attack the accused-party.

The version of the accused is more probable.

The learned Additional Public Prosecutor would submit that in a case where there is direct eye witness, the question of motive is more or less

academic and the absence of motive is not a ground to reject the prosecution evidence. In this connection he drew the attention of this Court to the

decision reported in Pedda Narayana and Others Vs. State of Andhra Pradesh, wherein it was observed :

Where independent testimony is available to prove the murder charge against the accused, the question of motive becomes more or less

academic.

In Subedar Tewari Vs. State of U.P. and Others, it was held :

The evidence regarding existence of motive which operates in the mind of an assassin is very often than not within the reach of others. The motive

may not even be known to the victim of the crime. The motive may be known to the assassin and no one else may know what gave birth to the evil

thought in the mind of the assassin. A crime can take place even without pre-meditation or preplanning in the context of a particular situation, on

the spur of the moment.

The said decisions are not helpful to the case of the prosecution as in this case the occurrence is admitted. The morning incident is also admitted.

The question is, from the proved facts and circumstances of the case, as to who would be the aggressor and who has first resorted to the attack on

the other. As already discussed above, on the proved facts and findings of the learned Sessions Judge, it is more probable that on account of the

morning incident, the deceased party would be the aggressors and there is no motive for the accused-party to attack the deceased. In this context,

the absence of motive assumes importance.

Next we have to consider the evidence of witnesses with regard to the occurrence. The prosecution mainly relied on the evidence of P.W. 1

(wife of the deceased), P.W. 2 (daughter of the deceased) and P.W. 3 (who is said to be a neighbour of the scene place. The learned counsel for

the appellant vehemently argued that in view of the fact that P.Ws. 1 and 2 are related to the deceased and they are interested and in view of the

facts that their evidence has been disbelieved with regard to the very attack on them and it has been found that the juvenile accused Gunasekaran

has been falsely implicated and in view of the fact that the medical evidence did not support their ocular testimony, certainly no reliance could be

placed on their testimony. The learned counsel for the appellant drew the attention of this Court to the evidence of P.W. 5. P.W. 5 Doctor

examined P.W. 1 immediately after the occurrence, that is at about 5.45 p.m. she was brought by the brother of the first accused, namely,

Palaniandi Goundar, who is inimically disposed towards the first accused. P.W. 1 told P.W. 5 that she sustained injuries at p.m. on the day of

examination (15-8-1983) by four known persons (two males and 2 females) with knife. P.W. 5 noticed as many as 6 injuries and issued wound

certificate Ex. P. 2. Injuries 1 and 2 found on her are incised injuries on the back side of the left shoulder and injuries 3 and 4 are contusions on the

right forehead and scalp right of centre and injuries 5 and 6 are abrasions on the centre of upper lip and right forearm. According to P.W. 5,

injuries 1 and 2 alone could have been caused by stabbing with knife. Even those injuries should have been more serious if the first accused

stabbed her forcibly as spoken to by the eye witnesses including P.Ws. 1, 2 and 3. They would not have been skin deep and that they should have

been more serious injuries. The other injuries noticed by him could not have been caused by a knife. The learned counsel for the appellant argued

that finding that there are three types of injuries P.W. 1 implicated four persons, the other three accused also were implicated and above all the

juvenile accused Gunasekaran has been falsely implicated as demonstrated even before the trial Court. It is now stated for the first time in the

Sessions Court that the juvenile accused Gunasekaran beat P.W. 1 on the head twice and again on the hand and that the first accused stabbed her

on the back of the left shoulder, twice. It was also pointed out by the learned counsel for the appellant that, according to P.W. 1, the first accused

was standing in front of her and stabbed her. But the injury noticed by the doctor was on the back side of the left shoulder. If that is so, the first

accused could not have caused injury on the back of the left shoulder. Above all, though it is now stated in Court that the juvenile accused

Gunasekaran beat her with stick on the head and hand, she did not state to that effect to the doctor. She did not also tell the same in the first

information report given by her nor in the inquest statement. PWs. 2 and 3 also did not speak about the beating on the head of P.W. 1 with stick

by the juvenile accused Gunasekaran. The learned Sessions Judge accepted the contention of the appellant with regard to the attack on P.W. 1 by

the juvenile accused Gunasekaran by beating her with stick and causing injury and consequently acquitted him. The learned counsel for the

appellant vehemently argued that it is clear from the above circumstance the juvenile accused Gunasekaran was falsely implicated by P.W. 1 alone

for the first time in Court to suit the medical evidence. It has been demonstrated to be false. It was contended that in view of the false implication of

the juvenile accused Gunasekaran which has been established, her entire evidence has to be rejected. In this connection, the learned counsel drew

the attention of this Court to the decision of the apex Court reported in B.N. Singh Etc. Vs. State Of Gujarat Etc., wherein it has been held (Para

10) :

It is well-settled that the evidence of interested witnesses cannot be discarded on the sole ground of interestedness but their evidence should be

subjected to a close scrutiny. But in the instant case, the circumstance namely that accused No. 3 was falsely implicated is glaring and renders the

evidence of these interested witnesses highly suspicious.

It was further held (Para 10) :

As already observed the evidence of partisan witnesses cannot be rejected outright but in this case when they have gone to the extent of

implicating one accused falsely and that their version that three of the accused caught hold of the deceased is not acceptable. We find it highly

unsafe to rely on their evidence against any of the accused. In view of this glaring infirmity in their evidence, we are of the view that their evidence is

not trustworthy against any of the accused and any reliance placed on such evidence is likely to result in miscarriage of justice. Therefore for all

these reasons we set aside the convictions and sentences of all the accused-appellants.

The ratio laid down in the above decision supports the contention of the learned counsel for the appellant. In this case P.W. 1 has gone to the

extent of implicating one accused falsely, namely, juvenile Gunasekaran. Applying the ratio laid down in the said decision to the facts of this case,

no reliance could be placed on her interested evidence, as her evidence is untrustworthy.

Next, the learned counsel for the appellant pointed out that from the post-mortem certificate it is clear that the deceased received number of

injuries on the chest and also on the front portion of the body and that they could not have been caused by the first accused while the deceased

was lying face downwards on the ground. The earliest version of the eye witnesses was that the deceased was stabbed first on the chest and after

receipt of the injury, he ran towards west to a distance of nearly 90 feet and thereafter he fell down in the road in front of the cattle shed of Subbu

Gounder, husband of P.W. 3, face downwards, and at that time the first accused is alleged to have inflicted the other injuries on the person of the

deceased. Finding that number of injuries are noted in the post-mortem certificate in the portion of the body and that it was not possible to cause

those injuries while the deceased was lying face downwards, the witnesses now changed their version and said that the first accused stabbed the

deceased while he was rolling and rolling. It has been elicited from the eye-witnesses P.Ws. 1 to 3 that is not their version at the time of the first

information report and also the investigation and it is only for the first time in Court they came forward with such version. The investigating officer

has also categorically admitted that they have not stated so during their inquest statements. It is the positive evidence of P.W. 6, Medical Officer

who conducted post-mortem, that those injuries could have been caused while the deceased was standing. In the face of the medical evidence we

find every force in the contention of the learned counsel for the appellant that if really P.Ws. 1 to 3 had spoken to the occurrence correctly and the

occurrence took place in the manner spoken to by them, certainly they could have come forward with the true version at the earliest point of time

and that it is clear that they are shaping their evidence to suit the medical evidence and as such no reliance can be placed on their evidence.

As regards the evidence of P.W. 2, it is stated that besides the fact that she is the daughter of the deceased, her evidence that during the

course of the occurrence at 3 p.m. she sustained injury due to stab with knife by the first accused has been falsified by her earlier statement to the

doctor P.W. 5 who examined her and issued wound certificate Ex. P3. According to P.W. 5, P.W. 2 told him that she sustained the injury due to

assault by a known person with a wooden stick, namely, coconut branch (vernacular matter omitted). The doctor has also noted the time of

sustaining the injury as 6.10 p.m. and now it is stated that he has wrongly noted as 6.10 p.m. instead of 3 p.m. The finding of the learned trial Judge

was that P.W. 2 could not have sustained the injury during the course of the quarrel; but, on the other hand, she might have sustained the injury due

to beating with coconut branch at about 11 a.m. on the date of occurrence in the incident narrated above. Since in Ex. P. 3 P.W. 5 doctor has

noted a cut injury on the scalp left parietal area 3"" length up to the skull bone depth and there was no clinical evidence of bone fracture with

contusion around the wound to about 4"" x 4"" size, P.W. 2 has now changed the version in Court and would state that she sustained the injury due

to stab with knife by the first accused. P.W. 5 has categorically stated that the injury noticed by him could not have been caused by a stab with a

weapon like M.O. 1; but it could have been caused only due to beating with a coconut branch as alleged. The learned trial Judge also disbelieved

her evidence with regard to the attack on her by the first accused by stabbing her with knife and caused injury, and acquitted him in respect of the

said charge. According to P.W. 2, the first accused stood in front of herself and her mother while stabbing them. That evidence has been falsified

by the medical evidence. Similarly P.W. 2 would also state that her father while running fell down forcibly and on account of the same there was

huge noise. But significantly no injury was found on the person of the deceased on account of the fall. Though she would state that the juvenile

accused Gunasekaran caught hold of her father from behind and she has also stated so during the inquest to the police, that has now been proved

to be false in view of the evidence of the investigating officer who would state that she has not stated so during investigation. P.W. 2 did not also

tell the investigating officer that the second accused caught hold of P.W. 1 and that the juvenile accused Vijaya caught hold of her. She has fairly

admitted that she did not state so. Even though she has stated so, it has been falsified by the evidence of the investigating officer. Even though she

has deposed that she has stated to the investigating officer that the first accused stabbed her father while he was rolling, she has not stated so to the

investigating officer. It is also clear from her evidence that she has gone to the extent of changing her evidence and improving the same in order to

suit the medical evidence. As already discussed, P.W. 2 would also state that the first accused forcibly stabbed P.W. 1 on the back of the

shoulder and that has been falsified by the medical evidence. With regard to the overt act attributed to juvenile accused Vijaya that she caught hold

of her evidence has been disbelieved even by the trial Court. Thus the learned counsel is perfectly justified in his contention that in view of the

conflicting medical evidence and in view of the embellishments and improvements in the evidence of this witness; certainly no reliance could be

placed on her evidence.

Next we have to see the evidence of PW 3 Chellammal. Even though it is stated that the deceased was stabbed for the second time in the road

in front of the cattle shed of Subbu Gounder, who is the husband of this witness, it is not her evidence that she witnessed the occurrence from the

cattle shed. She would state that while she was returning to her house from the field, she happened to witness the occurrence. It is seen from the

first information report given by PW 1 that PW 3 and others came only at the time when PW 1 was stabbed and everything was over. From Ex. P.

1 it could not be stated that PW 3 actually witnessed the occurrence. PW 3 would state in cross-examination at the first instance that when she

saw for the first time the deceased was lying with bleeding injury and the accused was running, though she subsequently changed and gave a

different version. It was also suggested to this witness that she was on inimical terms with the first accused as her son was involved in number of

theft cases and it was only the first accused who was responsible for apprehending him in this case. She categorically admitted that her son

committed theft of watch in the Society at Namakkal and a case was given. She also admitted that there was a charge of theft of cash against her

son about 10 or 15 years ago. She also admitted that her son was fined in the village, for having damaged the village temple glass. When she was

asked specifically whether it was only this accused who caught hold of her son and beat him in respect of theft of the watch in the Society, she said

that she did not know, though she denied in respect of other cases. She also admitted that her son is used to be called ""Billa"" in the village, in the

name of the notorious dacoit. It is clear from the various answers in cross-examination that her son is a regular thief and the first accused was

responsible for apprehending him in those cases and that she was on inimical terms with the first accused. Though the other witnesses would state

that at the time the first accused stabbed the deceased, he was rolling, in order to adjust with the medical evidence, she did not say so. Hence, her

evidence is not consistent with the evidence of PWs 1 and 2 and the medical evidence. Further, her evidence with regard to the attack on PWs 1

and 2 has not been accepted even by the trial court. Though she would state that the deceased fell down forcibly on the ground and there was a

noise, the Medical Officer did not find any injury on account of forcible fall. According to her, there are five members in her family. Her husband

was also there. But her husband was not examined. There is absolutely no explanation as to why her husband was not examined in this case. Even

though she would state that she carried the injured-deceased from the place where he was lying to a nearby place, when questioned about her

clothes blood-stained, she has stated that she did not know whether her clothes were blood-stained and the police also did not seize her clothes. If

really she was present and she also carried the deceased to a nearby place when admittedly there were blood-stains all over the body, certainly

her clothes would be blood-stained. The absence of blood-stains on her clothes and the seizure of the same also falsifies her presence at the scene

place. Further, when she was asked as to who else came when she also went there and she raised a noise, though she has stated that the villagers

came, she has stated that she could not say even the name of one person. Above all, though she would state that she was near the dead body till

8.30 a.m. the next day till the police examined her, she did not tell the details of the incident to anybody even though admittedly persons gathered.

Her version that the first accused stabbed PWs 1 and 2 forcibly has been disbelieved in view of the medical evidence. On a careful reading of

various answers in cross-examination, it is seen that though she would state in the first instance that she saw the enter occurrence, she has

subsequently changed her answers to almost all the material questions and from the various answers elicited, we are of the view that she could not

have witnessed the occurrence and that she is deposing falsely on account of enmity with the first accused and as such her evidence does not

deserve any credence.

It is the contention of the learned counsel for the appellant that the medical evidence adduced through PW 5 (who examined PWs 1 and 2 and

the first accused) and PW 6 (who conducted post-mortem on the dead body of the deceased and issued the post-mortem certificate Ex. P. 6) is

directly in conflict with the ocular testimony of PWs 1 to 3. According to the learned counsel, it is the evidence of PW 1 that after receipt of the

first injury, the deceased ran to some distance and fell on the ground with face downwards. It has been so stated in Ex. P. 1. In evidence also it is

stated that her husband fell down face downwards by stretching his two hands on his side. PW 2 would state that her father fell on the road face

downwards forcibly and on account of the fall, there was huge noise. PW 3 also would state to the same effect. But, PW 6 doctor who conducted

autopsy did not find any abrasion or contusion on the body of the deceased even though the deceased fell down face downwards forcibly in the

metal road. The learned counsel would submit that it is the case of PW 1 in Ex. P. 1 that the first accused stabbed the deceased repeatedly on the

back and right hand. But the doctor finds injuries on other parts of the body, including the front portion of the body. They could not have been

caused while he was lying face downwards. It is the evidence of PW 6 doctor who conducted autopsy that those injuries could have been caused

while the deceased was standing. It is only to get over the same, now the witnesses have come forward with the version that the deceased after

falling down was rolling and rolling and only at that time he was stabbed and he sustained injuries. We have already discussed the same while

considering the evidence of PW 1 and such version has been adduced to get over the version in the first information report which is in conflict with

the ocular testimony. The learned counsel also submitted that though it is stated by PW 1, 2 and 3 that the first accused stabbed PW 1 on the left

shoulder twice with knife forcibly and also stabbed PW 2 on the head, the medical evidence does not support the version as there is no

corresponding injury. According to PW 5, if PW 1 was stabbed forcibly with a weapon like M.O. 1 suri-knife, the injuries would have been more

serious and the depth would have been more and not a superficial one as noticed by him. It is the evidence of PW 1 that she was stabbed while the

first accused was standing in her front. The learned counsel submitted that it was not possible that the first accused was standing in her front when

the injuries are on the back of the left shoulder. The evidence of PW 1 that the juvenile accused Gunasekaran beat her forcibly with a big stick and

she sustained bleeding injury was contradicted by the medical testimony. According to PW 5, injuries Nos. 5 and 6 could have been caused due to

scratch with nail and not due to beating with stick. Injuries Nos. 3 and 4 are not bleeding injuries but only contusions. Though she would state to

the doctor that she sustained all the injuries only due to knife, the doctor noticed three types of injuries on her person, namely, 2 cut injuries, 2

contusions and 2 abrasions and the court below rightly disbelieved the evidence of PW 1 with regard to the attack on her by the juvenile accused.

As regards the injury on PW 2, it is her evidence that the first accused cut her on the head with suri-knife with force while the first accused stood in

front of her. PW 3 would state that the first accused stabbed PWs 1 and 2 forcibly. But, PW 5 doctor who examined PW 2 would state that the

injury on the head of PW 2 could not have been caused with knife while standing and that it could not have been caused by stabbing with a

weapon like M.O. 1. The same Medical Officer (PW 5) examined the first accused at or about the same time when PWs 1 and 2 were examined,

and he found as many as 5 injuries on his person. He was of the opinion that those injuries which are cut injuries and contusions could have been

caused at the time and in the manner alleged. But the prosecution witnesses deny the injuries on the person of the first accused. We will consider

the effect of suppression of injuries found on the first accused, later. Suffice to say that the medical evidence adduced in this case is not in

consonance with the ocular testimony. On the other hand, it is in conflict with the ocular testimony and in view of the above fact it cannot be said

that the occurrence could have taken place in the manner spoken to by PWs 1 to 3. In this connection the learned counsel for the appellant drew

our attention to two decisions of the apex court. In Mohar Singh and Others Vs. State of Punjab, , it was held :

Where in a murder case the witnesses categorically stated that the accused assaulted the deceased with spade but the doctor who held the

autopsy of the deceased clearly stated that the injuries could be caused only by a Kassi (pickaxe), the accused was given benefit of doubt in view

of the glaring inconsistency between the ocular and medical evidence.

While so doing, it was observed (para 6) :

In view of this glaring inconsistency between the ocular and medical evidence, it will be extremely unsafe and hazardous to maintain the conviction

of the appellants on such evidence. For the reasons, therefore, we are clearly of the opinion that the prosecution case has not been proved beyond

reasonable doubt.

In State of Haryana Vs. Lakhbir Singh and another, it was observed (para 6) :

As rightly pointed out by the High Court, the entire version of the prosecution and the evidence of the eye-witnesses as well the evidence of Sheo

Narain are directly in conflict with the opinion of the Medical Officer whose opinion is based on the nature of the injuries suffered by the deceased

and the presence of semi-digested food in the stomach of the deceased. Therefore, the conclusion arrived at by the High Court, in our view,

cannot be termed as either perverse or fallacious and hence we do not find any compelling reason to take a contrary view to that of the High

Court.

Applying the ratio in the above quoted decisions to the facts of this case, in view of our conclusion that the ocular testimony is in conflict with the

medical testimony, it is unsafe to maintain conviction of the appellant on such evidence.

Next we have to consider the effect of delay in sending Ex. P. 1 to the court. The occurrence in this case took place at about 3 p.m. It is stated

that PWs 1 and 2 went to Erumaipatti police station and gave the complaint Ex. P. 1 at about 8.30 p.m. and it was received by the Magistrate at

2.05 a.m. According to the learned counsel for the appellant, the reason for the delay from 3 p.m. to 8.30 p.m. and then from 8.30 p.m. to 2.05

a.m. is not explained and anyhow the delay in sending the report from police station to court is fatal to the case of the prosecution. He would

further submit that the constable who is said to have taken the first information report to the court was not examined. Above all when PWs 1 and 2

appeared before PW 5 doctor even at 5.45 p.m. and 6.10 p.m. respectively, PW 5 sent intimation of accident to the Namakkal Police Station. It

is now stated that after receipt of the intimations of the accident, PW 11, Head Constable, went to the hospital at 6.35 p.m. and he did not see

PWs 1 and 2. Hence he could not record the complaint of PW 1 and it has been so entered in the General Diary. The learned counsel for the

appellant contended that the said version could not be true. According to the learned counsel, as the complaint recorded by PW 11 was against

the prosecution case, the same was suppressed. It was also pointed out that when PW 5 sent intimations of accident to Namakkal Police Station

PWs 1 and 2 could have been informed and they could have been asked to wait at the hospital and they could not have been allowed to go from

the hospital before ever the police came. He would submit that according to PW 1, the Sub-Inspector of Police recorded Ex. P. 1 from her. But it

is now stated that Ex. P. 1 which is now before court was the one recorded by PW 13, the Head Constable of Erumaipatti police station, and it

was not the one which was recorded by the Sub-Inspector. PW 2 says that it was recorded by the Inspector and she knows the difference

between the Sub-Inspector and the Inspector. Nothing was elicited in re-examination to explain the same. Relying on the said evidence of PWs 1

and 2, it was vehemently argued by the learned counsel that the very first information recorded from PW 1 was suppressed and Ex. P. 1 has been

subsequently introduced and it is not the one which is the first information report in this case. He would submit that the entries in the General Diary

(Exs. P. 18 and P. 19) were subsequently made in order to get over the delay and no reliance could be placed on the same. According to him, the

delay in launching the first information report in this case and the suppression of the earlier report assumes importance in view of the admitted case

of the prosecution that the first accused appeared before PW 5 doctor for examination of the injuries sustained by him even at 6.40 p.m. and he

was examined by PW 5 for certain injuries said to have been caused at about 3 p.m. by two known persons, namely, one male and one female,

due to stab with knife and in respect of injuries on his person, intimation of accident was also sent to the Namakkal police station. PW 12 came to

the hospital and he did not record any statement from the first accused. But the version of the first accused was that while he was in the hospital,

police came on recorded his statement and he was taken to the police station and he was detained and his report was suppressed. In this

connection the learned counsel for the appellant drew the attention of this court to certain case laws. In Thulia Kali Vs. The State of Tamil Nadu, it

was held (para 12) :

On account of delay the report not only gets bereft of advantage of spontaneity danger creeps in of the introduction of coloured version,

exaggerated account or concocted story as a result of deliberation and consideration. It is, therefore, essential that the delay in the lodging of the

first information report should be satisfactorily explained.

In Sevi and Another Vs. State of Tamil Nadu and Another, it was held :

The non-production of the first information report book, general diary, etc., when the allegation by the accused was that the original first

information report was suppressed, an inference against the prosecution may have to be drawn, suspecting its case.

In Ramasamy v. State of Tamil Nadu, 1982 MLW (Cri) 63 : 1983 Cri LJ NOC 45 it has been held by a Division Bench of this court :

The F.I.R. is a statement which can only be used to corroborate or contradict the version of the maker of it and it is not substantive evidence. If

there is doubt about the F.I.R. being fabricated or brought into existence to implicate as many persons as possible, after deliberation the entire

fabric of the prosecution case collapses.

In the said background, it was observed in the said case that eye-witnesses, though injured, cannot be relied on, due to enmity. In Johny v. State

1990 MLW (Cri) 175 a Division Bench of this court observed :

The public expectation of efficient, fair and speedy justice cannot be fulfilled by the Court only, whose duty is to administer justice according to

law on the evidence available on record. Courts cannot be carried away or influenced by any sentimental feelings but have to assess the evidence

in the proper perspective and arrive at certain conclusion, that the guilt of the accused has been established beyond all reasonable doubt.

It is very painful and regrettable that in this case despite the occurrence having taken place in day time, the serious flaws and defects both in the

investigation and in the evidence which we have pointed out, constrain us to acquit the accused.

In the above quoted case, the main reason for acquittal was that the first information report reached the Magistrate 25 hours after the incident

though the distance between the police station and the scene place is 1 1/2 kilometers. Hence, the Division Bench after referring to the decisions of

the apex court and this court came to the conclusion that it is unsafe to rely upon such first information report as genuine and consequently

acquitted the accused. The learned counsel also drew our attention to a decision rendered by another Bench of this court (to which one of us, K.

M. Natarajan, J., was a party) reported in Palaniswamy v. State (1992 LW (Cri) 105) wherein it was held :

We have no hesitation in coming to the conclusion that the unexplained and inordinate delay in despatching the first information report to the

Magistrate is fatal to the case of the prosecution. There are doubts regarding the giving of the report by PW 1 and the indication of fabrication. As

such, the delay assumes importance in this case and there is considerable doubt on the version of the prosecution. There are clear indications of

fabrication and false implication of accused 4 to 7 and also eye-witnesses belonging to different places were planted.

The ratio laid down in the above decisions squarely applies to the facts of this case, as in the instant case the delay is inordinate and unexplained

and the delay is fatal. The learned counsel for the appellant vehemently argued that in the instant case immediately after the occurrence the first

accused appeared before the same Government Doctor (PW 5) who examined PWs 1 and 2, within four hours of the occurrence, that is at about

6.40 p.m. on the same day and reported to the doctor that he sustained injury due to stab with knife by two known persons, one male and one

female at 3 p.m. PW 5 examined him and found on him as many as 5 injuries and among them, injury No. 1 is a cut injury on the base of the left

thumb on the palmar aspect on the web 6 c.m. x 1 c.m. size; injury No. 2 is a contusion on the left forearm 6"" from the left elbow; injury No. 3 is

another contusion on the left leg and injury No. 4 is another contusion on the right shoulder. Besides the above visible injuries, the first accused

complained of pain all over the body. PW 5 gave evidence that he sent intimation of accident to the Namakkal Police Station and he was of the

opinion that the injuries found on the first accused could have been caused at the time alleged. He treated him for the injuries sustained by him.

Injury No. 1 sustained by him could have been caused while he warded off the stab injury and the injuries found by him on the left hand, left leg

and right shoulder could not have been caused by a single fall. PWs 1 to 3 denied the first accused having sustained any injury at the time of the

occurrence and denied having seen any injury on the first accused. Though it is stated that PW 12 went to the hospital on receipt of intimation of

accident and the first accused was not available, it is the contention of the first accused that he was detained at Namakkal police station and

thereafter he was taken to Erumaipatti police station and was detained. It was also contended that his statement was recorded and he has given a

version of the incident. According to him, no case has been registered and no investigation was done. Though the wound certificate of the first

accused was filed, there is absolutely nothing to show that PWs 1 to 3 were questioned with reference to the wound certificate or any investigation

was done with regard to the injuries sustained by the first accused. The learned counsel in this connection submitted that the version of the first

accused that he sustained injuries at the hands of the deceased and thereafter he apprehending danger to his life, in retaliation and as self-defence,

attacked the deceased and caused the injuries is spoken to by DW 1. DW 1 supported the version of the defence that the deceased cut the first

accused with M.O. 1 and PW 1 beat him with stick. In the circumstances, the learned counsel for the appellant vehemently argued that the non-

explanation of the injuries found on the first accused throws considerable doubt on the version of the prosecution as they have not come forward

with true version and that they suppressed the real facts and no reliance could be placed on their evidence. The learned counsel for the appellant

invited our attention to the decision of the apex court in Lakshmi Singh and Others Vs. State of Bihar, wherein it was held (para 11) :

In a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is

a very important circumstance from which the Court can draw the following inferences :

(1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;

(2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore

their evidence is unreliable;

(3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on

the prosecution case.

It was further observed :

The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the

evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the

prosecution one.

It was also observed :

The question whether the Investigating Officer was informed about the injuries was wholly irrelevant to the issue, particularly when the very doctor

who examined one of the deceased and the prosecution witnesses was the person who examined the accused also.

The leaned counsel for the appellant also quoted the decision in State of U.P. Vs. Madan Mohan and Others, . The facts of that case are that the

incident in question occurred on 29-12-1972 at about 7.30 p.m. While PW 1 and PW 2 stated that the incident occurred at about 7.30 p.m., the

deceased Satya Narain in his dying declaration gave the time of the incident as 6.00 p.m. The version regarding the incident given by PW 1 and

PW 2 also materially differs from the version found in the dying declaration. The names of the accused disclosed in the dying declaration are also

different. There is no mention about the participation of the respondent Chander Mohan in the incident in the dying declaration. The respondent

Chander Mohan had suffered a cut injury on his thigh. He had immediately gone to the police station with the bleeding injury. The Investigating

Officer admits his presence at the Police Station at about 7.45 p.m. It is also not disputed that respondent Chander Mohan had lodged a complaint

giving his own version regarding the incident. PW 1 and PW 2 have not explained the injury on the thigh of Chander Mohan. In these

circumstances, the Supreme Court observed that the High Court was justified in taking the view that the inability of PW 1 and PW 2 to explain the

injury to Chander Mohan adds to the doubts regarding their claim to have seen the incident. The apex court further observed that the prosecution

has suppressed the genesis of the crime. The ratio laid down in the above cases supports the contention of the learned counsel for the appellant

that the prosecution has suppressed the genesis of the crime and that the non-explanation of the injuries found on the first accused is fatal to the

case of the prosecution. We find every force in the said contention.

The learned counsel for the appellant next argued that no reliance could be placed on the case of the prosecution with regard to the alleged

arrest of the first accused and the recovery of M.O. 1 knife in pursuance of the alleged 27 statement. He would submit that in the face of the

defence taken by the first accused that he stabbed the deceased by way of self-defence, the recovery of M.O. 1 will not assume any importance.

Further, the various answers elicited in cross-examination of PW 8 clearly show that he was a put up witness long after the incident and he was on

inimical terms with the deceased and that he is interested in the prosecution party. It is the version of the first accused that he was taken from the

hospital on the very same day after receipt of intimation of accident from the hospital and as such the recovery of the weapon would not assume

any importance and it cannot be said that it is an incriminating circumstance to hold that the first accused is liable for the offence. The learned

counsel for the appellant vehemently argued that in view of the fact that the trial court has disbelieved the evidence of PWs 1 and 2 with regard to

the injury caused by the juvenile accused Gunasekaran to the deceased as well as the injury by the first accused to PW 2, their evidence is wholly

unreliable. There is no independent corroboration. Their evidence, as already found, is not supported by medical evidence and on the other hand it

has been disbelieved. According to the learned counsel, the truth and falsity are inseparable in this case and their evidence has to be discarded. He

would state that the occurrence took place in broad day light, that there were independent witnesses and that they were not examined. In this

connection, the learned counsel drew the attention of this court to the decision rendered by the apex court and reported in Kanbi Nanji Virji and

Others Vs. The State of Gujarat, wherein it was observed :

Having come to the conclusion that right from the beginning a prosecution witness was giving a distorted version of the incident, the Appellate

Court is not right in holding that any portion of evidence deposed by such prosecution witness can be relied upon merely because that some

portion of his testimony in Court accords with the version given by him to another prosecution witness. It is true that often times the Courts have to

separate the truth from falsehood. But where the two are so intermingled as to merit it impossible to separate them, the evidence has to be rejected

in its entirety.

In Balaka Singh and Others Vs. The State of Punjab, it was held :

On the facts of the present case, having regard to the partisan and interested evidence of the prosecution witnesses it is not possible to reject the

prosecution case with respect to four accused (acquitted by the High Court) and accept it with respect to the other five accused-appellants. If all

the witnesses could in one breath implicate the four accused who appear to be innocent, then one cannot vouchsafe for the fact that even the acts

attributed to the five appellants may have been conveniently made to suit the needs of the prosecution case having regard to the animus which the

witnesses bore against the appellants. In these circumstances the case of the appellants cannot at all be distinguished from that of the four acquitted

accused in any respect. If the case against the four accused fails then the entire prosecution will have to be discarded and it will not be possible for

the Court to make out a new case to convict the appellants.

The learned counsel for the appellant also pointed out that in Vadivelu Thevar Vs. The State of Madras, it was held that the evidence of interested

witness is not wholly reliable and corroboration from independent witness is necessary for conviction. On the facts and circumstances of this case

and in view of the various infirmities which we have already pointed out and in view of the fact that the trial court has not accepted a major portion

of the prosecution case, it is highly unsafe to rely on the evidence of PWs 1 to 3 with regard to the occurrence in this case in respect to the overact

attributed to the first accused. When we come to the above conclusion, the version of the first accused that he acted in self-defence is also

probabilised by his conduct in appearing before the very same Government doctor before whom PWs 1 and 2 appeared. His version is also

consistent throughout that it is only on account of the fact that he beat the daughter of the deceased, by name Vijaya, in the morning, the deceased

party came to attack him with dangerous weapon like knife and stick and during the course of the attack, he warded off the blow and in fact it fell

on him, and when he further attempted to murder him, in self-defence he snatched the very same knife and inflicted the injury on the deceased and

also beat PW 1. In support of his contention, he examined DW 1, his neighbour. The learned counsel vehemently argued that in the face of the

evidence available in this case and when the evidence of the prosecution witnesses is not trustworthy with regard to the actual occurrence and there

is no explanation for the injuries sustained by the first accused and in the face of the finding of the trial Judge that the daughter of the deceased

could have been attacked and sustained injuries at 11 a.m. and not at 3 p.m. as alleged, it is more probable that the deceased-party are the

aggressors and in view of the injuries found on the first accused, his version with regard to self-defence pleaded by him is probable. He would

submit that since the prosecution has not proved the guilt of the accused beyond all reasonable doubt the version of the first accused assumes

importance and the version of the accused has to be accepted with regard to the plea of self-defence and he should be acquitted. In this

connection, he drew the attention of this court to the decision of the apex court in Buta Singh Vs. The State of Punjab, wherein it was observed

(para 9) :

When two versions are before the Court, the version which is supported by objective evidence cannot be brushed aside lightly unless it has been

properly explained. As stated earlier, the prosecution has not explained how blood was found from near the tubewell and no blood was found

from the spot where according to them the incident occurred. In addition to this, the factum regarding the delay in lodging of the First Information

Report and the suspicion that it was delayed with a view to concocting the prosecution case and further the delay in forwarding the special report

to the Magistrate as well as the case papers to the hospital shows that the investigation was not above board. In these circumstances, we think that

the approach adopted by the Courts below cannot be justified.

It was also observed (para 10) :

.............. having regard to the nature of the incident, it is difficult to say that he exceeded the right of private defence for the obvious reason that he

could not have weighed in golden scales in the heat of the moment the number of injuries required to disarm his assailants who were armed with

lethal weapons.

The ratio laid down in the above decision supports the contention of the learned counsel for the appellant. In view of the facts discussed already,

we have no hesitation in holding that the version of the defence is more probable and that the first accused is entitled to the right of private defence.

Thus, on a careful consideration of the entire materials and in view of our findings recorded above, we are of the view that the convictions of

the appellant are not sustainable and he is liable to be acquitted.

In the result, the appeal is allowed, the convictions and sentences awarded to the appellant are set aside and he is acquitted. His bail bond shall

stand cancelled.

Appeal allowed.