Palani and Others vs State

A. Kulasekaran, J.—The appellants are A-1 to A-10 in S.C.No.21 of 1996 on the file of the VII Additional Sessions Judge, Chennai and

they were tried for an offence under Sections 147, 149, 341, 324, 302 read with 149 IPC and they were convicted and sentenced to undergo

imprisonment for one year for the offence u/s 147; imprisonment for one year u/s 148 IPC; life imprisonment with fine of Rs.2,000/-, in default, six

months rigorous imprisonment for the offence u/s 302 read with Section 149 IPC, however, all the sentences were ordered to run concurrently,

which is challenged in this appeal.

The facts which are relevant fort the disposal of this appeal are as follows:-

PW1 is the mother of the deceased. PW2 is the concubine of the deceased and PW3 is the father of PW2. The deceased and the appellants are

residents of V.O.C.Nagar, Tondiarpet, Madras. One month prior to the occurrence, one Mahesh, who belonged to the group led by Sundar was

assaulted by one Govinadaraj, Anbu and Yuvaraj and the appellants complained the same to the police stating that the deceased Kothandan was

responsible for the said attack and the police also enquired him. Pursuant to the said incident, the group led by Sunder developed grudge against

the deceased. On 22.05.1993 at 11.45 a.m. when the deceased was in the house of PW2, PW1 went there called him to lunch. At that time, the

appellants, who are members of the group led by the said Sundar came from the market side armed with weapons. A-1 and one Ravi told the

other appellants moths the deceased assuming himself as a leader of a gang and instructed them to cut him. A-7 came nearer to the deceased and

caught hold of his head. A-2 cut the deceased on his left leg and elbow. When PW1 attempted to prevent them, A-2 caused a cut on her right

forearm. A-5 cut the deceased on his left arm. A-6 cut the deceased on his left arm. A-6 cut the deceased on his left wrist. A-4, A-8 and A-10

cut the deceased on his left arm, thigh and legs indiscriminately and the deceased fell down in a pool of blood. The said incident as was also

witnessed by PW2 and she begged A-7 to leave the deceased, but he, along with other accused did not stop attacking the deceased. Thereafter,

they ran away from the scene of occurrence with the weapons. At that time, a police party from the Adjacent street came to the scene of the

occurrence and removed the deceased to Stanley Medical College hospital in an auto-rickshaw. PW1 accompanied the deceased to the hospital,

but on the way to the hospital, the deceased breathed his last. PW5, Inspector of Police attached with New Washermanpet Police Station, on

information, proceeded to Stanley Medical College Hospital at about 12.00 noon, enquired PW1 and recorded her statement, which was later

marked as Ex.P1. He came back to the Police Station at 12.45 pm and registered a case on Crime No.736 of 1993 under Sections 147, 148,

341, 324 and 302 read with 149 IPC. He prepare Printed FIR, Ex.P4 and the same was forwarded to Court as well as higher police officials.

Thereafter, he went to the scene of the occurrence and prepared observation mahazar, Ex.P6. He drew rough sketch under Ex.P5. He recovered

the blood stained soil and sample soil, Mos. 1 and 2 respectively under a mahazar, Ex.P7 attested by witnesses. Thereafter, he proceeded to

Stanley Medical College Hospital, summoned Panchayatars and conducted inquest over the body of the deceased in their presence. Ex.P8 is the

inquest report. After completion of inquest, he prepared a requisition, Ex.P2 addressed to the Doctor, PW4 with a request to conduct autopsy

over the body of the deceased. On receipt of Ex.P2, PW4 commenced post-mortem and found the following injuries on the body of the deceased.

Injuries:-

I. Incised wound front of middle of right arm 9 x 3 x 2cms.

II. An Oblique incised wound on the right wrist 5 x 2 1 cms.

III. Incised wound on the base of right thumb 2.5 x 2 x bonedeep. O/D the underlying cut 2 x 1/4cms.

IV. Incised wound on the palmar aspect of base of right index and middle finger 5 x 2cms x bone-deep. O/D The underlying bone is cut 4 x 1

cms.

V. Incised wound on palmar aspect of based of right ring figure 1 x.5cm.

VI. An oblique incised wound across the right palm 4 x 1 cms.

VII. Incised wound on the front of the lower third of right leg 8 x 4cms x bone deep. O/D. both bones of right leg found completely cut.

VIII. Incised wound on the back of lower third of right leg 4 x 1.5 x 1 cms.

IX. Superficial incised wound 2 x 1 cms. 3"" above the medial malleolus of right leg.

X. Incised wound 6 x 1 cms. x bone deep on the right medial malleolus. O/D. The underlying bone cut 6 x 1 cms.

XI. Incised wound 8 x 2cms. x bone deep on the right medial malleolus. O/D. The underlying bone cut 6 x 1 cms.

XII. An Oblique incised wound on the medial aspect of right foot close to each other 6 x 1.5cms x bone deep. 8 x 1 cms x bonedeep. 4 x 1 cms.

x bone-deep. 12 x 2cms x bone deep. O/D. Multiple cuts seen in the bones of right foot.

XIII. Incised wound lower third of left arm 10 x 4cms. bone deep. O/D. A cut in the humorous 4 x 1 cms.

XIV. Extensive incised wound at the left elbow joint with traumatic amputation of the left forearm at the level of elbow attached by a tag of skin.

XV. Incised wounds on the left forearm 3 x 1 cms. 4 x 1 cms. x bone deep. O/D. A cut 3 x.5cms in the underlying bone.

XVI. Incised wound 6 x 3cms. x 2cms. on the outer aspect of upper part of left forearm.

XVII. Incised wound 14 x 7cms x bone deep on the outer aspect of middle of left forearm. O/D. A cut in the underlying bones 4 x.5cms.

XVIII. Incised wound 5 x 3cms. x bone deep just above the left wrist joint. O/D. A cut 4 x 1 cms. in the underlying bone.

XIX. Incised wound 2 x 1 cms. on the back of left hand.

XX. Incised wound 11 x 4cms. on the base of fingers with traumatic amputation of ail the fingers, attached by a tag of skin.

XXI. Incised on the palmar aspect of left thumb 2 x 1 cms, 3 x 2cms. x bone deep with a cut in the underlying bone.

XXII. Abrasion 8 x.5cms, 9 x.5cms, 6 x 5cms., on the front of left thigh.

XXIII. Incised wound 25 x 10cms x bone deep extending from the front of left knee to the back of upper part of left leg. O/D. bones of the knee

joint found in pieces.

XXIV. Incised wound 15 x 4cms x bone deep middle of outer aspect of left leg. O/D. Fibula found completely cut.

XXV. Incised wounds close to each other 9 x 10cms. x bone deep on the outer aspect of lower third of left leg. O/D.both bones of left leg found

cut.

XXVI. Incised wounds on the outer aspect of left ankle and feet close to each other. 10 x 2cms. x bone deep. 14 x 4cms x bone deep. 11 x 3cms

x bone deep. 13 x 3cms. x bone deep. Bones of ankle and foot cut.

All the injuries are antemortem. On DISSECTION: Heart: Empty. Lungs: Pale Stomach: 100 ml of thick turbid liquid. Liver, Spleen Y Kidneys:

Pale. Bladder: Pale Brain: Pale.

The Doctor, PW4 who conducted post-mortem over the body of the deceased and issued Ex.P3, post-mortem certificate opined that the

deceased appear to have died of shock and haemorrhage due to multiple incised wounds.

In the meantime, PW5 continued with his investigation and arrested A-1, A-3, A-5, A-6 and A-7 on 23.05.1993 and recorded their statement.

A-2 has given a confession statement, based on the same, PW5 seized the knife under Mahazar Ex.P9 attested by witnesses. On 27.05.1993, he

arrested A-1, A-8 and A-9 and they have also given confession statements, in which admissible portion of the statement of A-1 was marked as

Ex. 10, attested by witnesses. Pursuant to the said statement, A-1 took the police party to Military Courts where he took out a knife from a bush,

which was seized under a mahazar Ex.P11 attested by witnesses and thereafter, all the accused were sent to Court for remand. PW5 went to

Stanley Medical College Hospital and collected the accident register issued to the deceased, which was later marked as Ex.P12. He also sent the

material objects to the Court with a request to send them for chemical analysis under a memo Ex.P13. Ex.P15 is the Serology report. PW5 also

enquired PW4 and recorded her statement. In the mean time, one Ravi and A-4 have surrendered before the court. Thereafter, PW5 was

transferred and his successor PW6 continued his investigation and after scrutinisation of the records, he filed final report on 29.7.1993 under

sections 147, 148, 341, 324, 302 read with 149 IPC.

The appellants were questioned u/s 313 Cr.P.C. in respect, of the incriminating circumstances appearing against them, but they denied the same,

however, they have not examined any witness on their side or marked any documents in support of their defence.

The learned counsel appearing for the appellants submit that there is no motive for the offence alleged against the appellants; that the trial court

ought not to have accepted the interested testimony of PW1, who is none other than the mother of the deceased; that PW1 has not mentioned any

specific overt act by the appellants on the deceased; that the evidence of PW1 is not supporting the case of the prosecution in any manner; that

assuming the entire bundle of allegations unfolded by the prosecution are taken to be true, it will not make out a case as alleged by the prosecution

and prayed for setting aside the conviction and sentence imposed by the trial court on the appellants.

We have also heard the learned Additional Public Prosecutor on the above contentions, who justified the conviction and sentence imposed by

the trial court on the appellants.

The cause of death of the deceased stands established by the prosecution through PW4, Doctor, who conducted post-mortem over the body of

the deceased and stated that the deceased died due to shock and haemorrhage due to multiple incised wounds, which are caused by homicidal

violence. The appellants herein have not disputed that the deceased died due to homicidal violence either before the trial Court or before this

Court, hence, we hold that the deceased died due to homicidal violence.

The prosecution has examined PWs 1 and 2 as witnesses to the occurrence. PW1 is the mother and PW2 is the concubine of the deceased.

PW1 in her evidence has stated that on 22.05.1993 at about 11.45 am she went to the house of PW2 to call the deceased for lunch. At that time,

the appellants herein came there armed with weapons and cut the deceased indiscriminately and caused his death. It is also stated that when she

attempted to prevent them from cutting the deceased, she sustained a cut injury on her right hand and the police who were near the scene of

occurrence came there and removed the deceased to Stanley Medial College Hospital, Chennai in an auto rikshaw. PW4, the Doctor who

attended on the deceased, after examination declared him dead. Thereafter, PW5, Inspector of Police came to the hospital, to whom PW1

narrated the entire incident and it was reduced into writing in which she affixed her thumb impression and the same was later marked as Ex.P1.

PW1 also stated that she was not aware how many persons were there in the scene of occurrence. Though she claimed she knows the appellants,

however stated that their names are not known to her. She further deposed that she has seen the appellants only at the time of occurrence and not

before. She has also admitted that Sundar was not known to her. She denied the suggestion that she was not in the scene of occurrence and

therefore she is unable to mention the name of the appellants, who were present.

Though PW2 was fielded by the prosecution as an eyewitness, she was treated as hostile, hence, the prosecution was left with only one witness

namely PW1 to prove the guilt against the appellants.

Though PW1 is able to mention all the name of the appellants in Ex.P1, complaint, she was not whispered even a single name of the appellants

when she was examined before the trial court. Similarly, she has not attributed any overt act against any of the appellants. Except the denial of

suggestion that she was not at all present in the scene of occurrence, her evidence is of no use to the prosecution. In this context, it is necessary to

point out the version of PW1 from her evidence that she has seen the appellants for the first time during the occurrence and not earlier. While so, it

is not made known by the prosecution how she made known by the prosecution how she could identify the appellants. Admittedly, in this case, no

test identification has been conducted.

Conviction based on the evidence of sole eyewitness is sustainable in law, if it is if it is found to be reliable. In this context, it is useful to mention

here that a witness may be wholly reliable; may be neither wholly reliable nor unreliable and; may be wholly unreliable. Conviction on the testimony

of solitary witness is legal, if he or she is wholly reliable. Followed (Jose v. State of Kerala, AIR 1973 SC 994). The matter thus depends upon the

circumstances of each case and the quality of the evidence, even of a single witness, whose testimony either to be accepted or to be rejected. If

such a testimony is found by the court to be entirely reliable, then there is no legal impediment to convict the accused on such proof.

Applying the above said principles, now we analyse the solitary evidence of PW1. PW1 in her evidence was not able to mention even a single

name of the appellants or their overt act he admitted that she has not seen the appellants prior to the occurrence and saw them only during the

occurrence, when a specific question was put to her to mention even a single name of the appellants who were standing, she admitted that she

could not. Hence, we are of the considered view that the evidence of PW1 is not acceptable.

An argument was advanced by the learned counsel for the appellants that there is no motive at all for the appellants to commit the alleged

crime. We feel some substance in the said argument. Motive is that which makes a man to do a particular act. There can be no action without

motive, which must exist for every voluntary act. Though the prosecution is not bound to prove motive for the crime, absence of any motive is a

factor which may be considered in determining the guilt of the accused in the event of no valid evidence. As we have already pointed out, the

evidence of PW1 is not trustworthy, hence, we are constrained to hold that the motive set out by the prosecution cannot be said to be sufficient for

the crime in question.

Admittedly, the occurrence took place near the market at 11.45 am but no independent witness was examined by the prosecution. As we have

already pointed out that the solitary evidence of PW1 does not disclose the name of the assailants or their overt act, the conviction of the

appellants by the trial court, based on her evidence is improper. Hence we hold that the prosecution has not proved the case against the appellants

beyond reasonable doubt.

The honourable Supreme Court in the decision reported in Alil Mollah and Another Vs. State of West Bengal, held that to perpetuate an error

is no virtue, but to rectify it is a judicial conscience. Applying the said decision in this case, when the appellants were convicted for committing the

murder of the deceased solely relying on the testimony of solitary witness namely PW1, which was unbelievable and uncorroborated by any other

independent witness, the conviction and sentence imposed on them by the trial court is liable to be set aside.

Hence, we have no other alternative except to set aside the conviction and sentence imposed by the trial court on the appellants, by giving

benefit of doubt to them, and accordingly they are set aside. The Criminal Appeal is allowed. The bail bonds, if any, executed by the appellants

shall stand cancelled.