Rajendren @ Raja and Rajasekar @ Raja vs State

M. Chockalingam, J.—Challenge is made to the judgment of the learned Additional Sessions Division, Thoothukudi, in S.C. No. 9 of 2006,

dated 07.01.2009 whereby the appellants two in number stood charged, tried and found guilty under Sections 449, 302 and 323 IPC and

awarded punishment as follows;

Life imprisonment with fine and default sentence for the offence u/s 449 IPC; Life imprisonment with fine and default sentence for the offence u/s

302 IPC and six months rigorous imprisonment for the offence u/s 323 IPC. All the sentences imposed are ordered to run concurrently.

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

(i) The deceased Kandasamy @ Mathews, who was carrying on a medical shop, is the maternal uncle of A1. The mother of A1 died long back

and A1''s father left the children. A1 along with his sisters were under the care and custody of Kandasamy @ Mathews. One of the sisters became

nun and she left the home. A1 and the other sister were actually brought up by the said Kandasamy @ Mathews.

(ii) A1 was often quarreling with the deceased that his sister has attained the age and her marriage must be done earlier. For that Kandasamy @

Mathews gave evasive answer with which A1 was aggrieved. A2 was a close associate of A1. As per the complaint, the appellants/accused

entered into the shop of Kandasamy @ Mathews at 10.15 p.m. on 22.02.2003 and attacked him with aruval indiscriminately and caused his death

instantaneously. The said occurrence was witnessed by P.Ws.1 to 4. P.W.2 was a watchman who was employed in that area. When the crowd

gathered, A1 and A2 fled away from the place of occurrence along with the weapons of crime.

(iii) P.W.1 also sustained injuries and he was taken to the hospital. He was examined by the Doctor P.W.11 and Ex.P6 is the accident register

copy marked through him. On receipt of the information from the hospital to which the Kandasamy @ Mathews was taken, P.W.15, the Head

Constable, gave the intimation to the respondent police station.

iv) On the strength of the complaint of PW1 marked as Ex.P1, a case came to be registered in Cr. No. 126 of 2003 for the offence u/s 302 of the

Code. The printed first information report is Ex.P18. Printed FIR Ex.P18 along with Ex.P1, the complaint, was despatched to the Court

concerned and to the higher officials.

v) On receipt of the copy of the FIR, P.W.20, the Inspector of Police, took up investigation, proceeded to the scene of occurrence, made an

inspection in the presence of witnesses and prepared an Observation Mahazar Ex.P.2, and a rough sketch Ex.P.19. Besides that, he recovered

material Objects MOs1 to 3 and 8 to 11 in the presence of the witnesses under the cover of mahazar Ex.P3. The investigator conducted inquest

on the dead body of the deceased in the presence of the witnesses and panchayatdars and prepared an inquest report, which was marked as

Ex.P.20.

vi) Following the same, the dead body of the deceased was sent to the Government Hospital, for the purpose of autopsy. On receipt of the

requisition made by the investigator, P.W.12, the Doctor, attached to Thoothukudi Government Hospital, conducted autopsy on the dead body of

the deceased and issued Ex.P.9, the post-mortem certificate, and opined that the deceased died due to haemorrhage and shock due to multiple

injuries sustained by him.

vii) The investigating officer recorded the statements of the witnesses. Pending investigation, on 23.02.2003, at 16.00 hrs P.W.20, the Investigating

Officer, arrested both the accused/appellants and they gave confessional statements voluntarily in the presence of witnesses, and the admissible

part of the confessional statement of A1 was marked as Ex.P.21, pursuant to which he produced MOs12 to 15 and they were all recovered in a

cover of mahazar Ex.P23. Equally the admissible part of the confessional statement of A2 was marked as Ex.P.22, pursuant to which he produced

MOs16 to 19 and they were all recovered under a cover of mahazar Ex.P24.

viii) A1 was medically examined by P.W.13, the doctor, and Ex.P.10, is the certificate issued by him. A2 was also medically examined by P.W.13

and Ex.P11 is the certificate issued by him. Both the accused were sent for judicial remand. All the material objects were sent for chemical analysis

to the forensic department. Following the same, the Chemical analyst''s report, Ex.P14 and Serologist''s report Ex.P15 were received by the

Court.

ix) On completion of the investigation, the Investigating Officer has filed the final report. The case was committed to the court of sessions and

necessary charges were framed.

x) In order to substantiate the charges, at the time of trial, the prosecution examined 20 witnesses and relied on 24 exhibits and 19 material

objects. On completion of the evidence on the side of the prosecution, the accused/appellants were questioned u/s 313 Cr.P.C. as to the

incriminating circumstances found in the evidence of prosecution witnesses. They denied them as false. No defence witnesses were examined.

xi) After hearing the arguments of the counsel and looking into the materials available, the trial court took the view that the prosecution has proved

the case beyond reasonable doubt and hence, found the accused/appellants guilty and awarded the punishment as referred to above. Under these

circumstances, this criminal appeal has arisen at the instance of the accused/appellants.

Advancing the arguments on behalf of the appellants, the learned Counsel inter alia would submit that the prosecution has examined P.Ws.1 to 4

as eyewitnesses, out of whom P.Ws.1, 3 and 4 turned hostile and thus, the prosecution has the evidence of P.W.2 only. So, the trial Court should

have rejected the testimony of P.W.2. So far as P.W.2 is concerned, he was shown as a watchman of that area, but he has given evidence to the

effect that he was actually the watchman employed so far as that shop is concerned. Therefore, he was not the watchman of that area at all.

According to him, at the time of occurrence, he was standing in front of the STD booth situated on the eastern side of the shop of Kandasamy @

Mathews. Even, according to the rough sketch, the Shop is situated in a corner having two openings one on the eastern side and the other on the

northern side and eastern side opening of the shop was actually closed. Even the investigator has categorically deposed that the entire business was

carried on from the northern side opening and there was no business on the eastern side opening and thus, if this is really true, while P.W.2 was

actually standing in front of the STD booth situated on the eastern side of the shop and the occurrence has taken place inside the shop, he could

not have seen occurrence in view of the fact that the eastern side opening of the shop was closed.

Added further the learned Counsel that P.W.2 has categorically admitted that he has not seen both the accused earlier and they are not known

to him. Under such circumstances, identification parade was a must in the instant case, but no identification parade was conducted at all and thus,

P.W.2''s evidence should have been brush aside, but the trial Court has accepted and applied his evidence in finding the appellants/accused guilty.

The learned Counsel for the second accused/A2 would add that the occurrence has taken place on 22.02.2003, but the evidence was recorded

by the Court in the month of July 2008. Thus, P.W.2 was examined before the Court nearly 5 1/2 years later and that too identification parade

was not conducted and hence, his evidence should not have been accepted.

Added further the learned Counsel that even as per the prosecution case, A1 has some motive against the deceased, but A2 has no motive at all

and thus A2 is falsely roped in. Even the blood group found in the clothes recovered from A2 did not tally with the blood group of the deceased.

Under such circumstance, so far as A2 is concerned, the trial Court should have acquitted him, but failed to do so. Hence, A2 has got to be

acquitted by this Court.

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

It is not in controversy that one Kandasamy @ Mathews, who was carrying on a medical shop and who was the maternal uncle of A1, was

done to death in an incident that had taken place at 10.15 p.m. in his shop on 22.02.2003. Following the registration of the case by the Sub

Inspector of Police of the respondent police station, inquest on the dead body was conducted by the Investigating Officer, and after preparation of

the inquest report, the dead body was subjected to postmortem by P.W.12, who has given a categorical opinion as a witness before the Court that

Kandasamy @ Mathews died out of shock and hemorrhage due to the multiple injuries sustained by him. The fact that the deceased Kandasamy

@ Mathews died due to homicidal violence was proved by the prosecution by the evidence adduced through postmortem doctor, P.W.12 and

also the contents of the postmortem certificate marked as Ex.P9. The fact that Kandasamy @ Mathews died due to homicidal violence was never

disputed by the appellants before the trial Court and hence this Court has no impediment in recording so.

In order to substantiate that both the accused made criminal entry into the shop of Kandasamy @ Mathews and attacked him with aruval

indiscriminately and caused his death instantaneously, the prosecution has marched P.Ws.1 to 4 as eyewitnesses. Out of these eyewitnesses,

unfortunately P.Ws.1, 3 and 4 have turned hostile and the prosecution had the evidence of P.W.2 only as eyewitness. It is settled proposition of

Law that the quantity of evidence is not to be looked into, but the quality of evidence must be seen. In the instant case it is true that P.W.2 was the

only eyewitness and if his evidence was to be accepted, then the case of the prosecution has got to be accepted. P.W.2 was actually a watchman

who was going around the shops during that time and he has deposed that he was a watchman in that area and at the time of occurrence he was

just standing in front of the STD booth situated on the eastern side of the medical shop and at that time, he witnessed the occurrence and hearing

the distressing cry, he was just proceeding towards the shop where the occurrence has taken place. It is true that he categorically stated that at that

time he was just looking at the occurrence, and the eastern side door was kept opened, and he was able to witness the occurrence. Now, the

contention of the learned Counsel for the appellants pointing to the sketch and also the evidence of the investigating officer, in the considered

opinion of the Court, cannot be given any weight at all because it was P.W.2 who actually witnessed the occurrence, and his statement was

recorded on the very next day i.e. 23.02.2003 and the same has reached the Court on the very next day.

It is pertinent to point out even in the first information report, the presence of P.W.2 is also mentioned. It is categorically stated that he has also

rushed to the shop along with others. Thus, it would be quite clear P.W.2 was very well present at the time of occurrence.

Now, the contention put forth by the learned Counsel for the appellants that P.W.2 has categorically stated that he did not know both the

accused/appellants earlier and identification parade was not conducted and he has given evidence 5 1/2 years later before the trial Court cannot be

given any significance or weight at all for the following reasons.

It is settled preposition of law that identification parade is only a corroborative piece of evidence and the substantial piece of evidence is what is

recorded before the Court of law. In the instant case P.W.2 has stated that he witnessed the occurrence. The occurrence had taken place at 10.15

p.m. in a very peaceful time. Apart from that, in a given situation like this, the Court has to see whether the occurrence would have caused a dent in

the memory of the witness. In the instant case, P.W.2 has categorically stated that he has seen the occurrence, and both the accused/appellants cut

the deceased indiscriminately with aruval and he has also given statement on the very next day and it has reached the Court in the next morning. All

would clearly indicate that P.W.2 has witnessed the occurrence. Further, in the instant case there is yet another circumstance which was in favour

of the prosecution was the recovery of the material objects from both the accused, who have given voluntary confessional statements. Apart from

that, the material objects were subjected to chemical analysis by the forensic department and the chemical analyst''s report and the serologist''s

report have also been received. In so far as the clothes recovered from A1, the blood group was found to be tallying with that of the deceased.

The confessional statements pursuant to arrest and recovery of material objects and scientific evidence as noticed by the Court are all pointing to

the nexus of the crime with the accused and thus, the contention put-forth by the appellants do not merit acceptance. It is true that out of four

eyewitnesses, three turned hostile and only one eyewitness, P.W.2, is available to the prosecution. So far as he is concerned, his evidence is

convincing and acceptable, as rightly accepted by the trial Court. The other circumstances were also in corroboration with the ocular testimony

projected through P.W.2. Hence, the trial Court was perfectly correct in finding the accused guilty. The contentions of the learned Counsel for the

appellants do not carry any merit whatsoever and they are liable to be rejected. Accordingly they are rejected.

In the result, the appeal is dismissed and the conviction and sentence imposed on the appellants/accused by the trial Court are confirmed.