Raju alias Balachandran, Raj Kumar and Sekar vs State

M. Chockalingam, J.—This appeal has arisen from the judgment of the Additional Sessions Division, Fast Track Court No. I, Tiruchirapalli, made in S.C. No. 76/2004 wherein the appellants three in number, stood charged, tried, found guilty and awarded punishment as stated below.

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

(a) A-1 is the father of A-2 and A-3. The accused, the first deceased Veerappan, and his mother, the second deceased, Maruthayee were the natives of Valavanthi village. P.W. 5 is the son of the second deceased. There has been a long pending dispute between the parties as to the worshipping in a temple. Apart from that, they had a dispute as to the fence. The matters were also pending in Courts. On 4.5.2003 at about 5.30 A.M., the first deceased was coming from the tea shop of P.W. 7 after getting tea in a vessel. P.W. 1 accompanied by P.W. 5 was following the first deceased. At that time, all the accused armed with aruvals, came and suddenly attacked the first deceased. P.Ws. 1 and 5 witnessed the occurrence. On seeing this, the mother of the first deceased immediately ran to the rescue, and she was also attacked. A-2 and A-3 delivered cut injuries on the second deceased Maruthayee, on the shoulder, neck and head respectively. A-1 also attacked the second deceased again. The first deceased died at the spot. Maruthayee also died subsequently due to the injuries sustained. All the accused with the weapons of crime fled away from the place of occurrence. This was witnessed by P.Ws. 1 to 5. Then, P.W. 1 proceeded to Musiri Police Station and gave Ex. P1, the report, on the basis of which, P.W. 15, the Sub Inspector of Police, who was present, registered a case in Crime No. 333/2003 under Sections 341, 307 and 302 of I.P.C. The express First Information Report, Ex. P14, was sent to the Court.

(b) On receipt of the copy of the F.I.R., P.W. 16, the Inspector of Police, took up investigation, proceeded to the spot, made an inspection in the presence of two witnesses and prepared Ex. P4, the observation mahazar, and Ex. P15, the rough sketch. He also recovered a vessel, bloodstained earth and sample earth, M.Os. 4 to 6 respectively, under a cover of mahazar. He conducted inquest on the dead bodies of Veerappan and Maruthayee in the presence of witnesses and panchayatdars. Ex. P16 is the inquest report pertaining to the first deceased Veerappan, while Ex. P17 is the inquest report in respect of the second deceased Maruthayee. Following the same, both the dead bodies were sent to the Government Hospital for the purpose of autopsy along with the requisitions.

(c) P.W. 8, the Assistant Surgeon, attached to the Government Hospital, Musiri, on receipt of the requisition, conducted autopsy on the dead body of Veerappan and found the following injuries:

1) A total deep cut injury throughout the neck in front of the Rt. Side and posterior aspect except for a 6 cm skin and muscle attached in between the body and head on the lateral aspect of the left side of the neck. The cut injury was about 40 cm length surrounding the Rt side of the neck and 10 cm breadth, the cut ends of the muscle, major vessels on both sides, were exposed esophagus, Trachea were cut. Cervical vertebra was cut at the level of C6-C7-intervertebral joint level. The upper extremity of the wound was below the hyoid bone level, hyoid bone intact. Lower extremity above the suprasternal notch.

2) An oval shaped tangential cut-injury in the Rt side shoulder of size 10 x 8 cm exposing the cut muscles and cut acromion process of scapula.

3) A deep cut injury of 7 x 3 x bone depth in the Rt. Lower Leg. 5 cm below knee joint exposing the cut end the anterior aspect of the muscles, partial cut of the right tibia bone and the vessels are also cut.

The Doctor has issued Ex. P2, the postmortem certificate, wherein she has opined that the deceased would appear to have died of injury to the vital parts, neck and spinal cord and blood vessels and severance of the head, leading to shock and haemorrhage resulting in spontaneous death about 8 to 12 hours prior to postmortem.

(d) The same Doctor, P.W. 8, on receipt of the requisition conducted autopsy on the dead body of Maruthayee and found the following injuries:

1) A deep cut injury in the Right side of the neck 5 cm below the Right ear upto the level of C6-C7 level 5 cm from the midline in the posterior aspect of measurement 10 x 5 cm x bone deep exposing the cut ends of muscles major blood vessels edges well defined edges.

2) A deep cut injury of 4 x 1 x bone deep in the left parietal region of the scalp edges well defined.

3) A spindle shaped cut injury of size 7 x 4 x bone deep in the left arm & left shoulder area 6 cm below the acromion process of the scapula extending to the posterior aspect 10 cm lateral to midline in the back at the level of T1-T2.

The Doctor has issued Ex. P3, the postmortem certificate, with her opinion that the deceased would appear to have died of injury to major blood vessels leading to shock and haemorrhage resulting in spontaneous death about 8 to 12 hours prior to postmortem.

(e) P.W. 16 came to know that all the accused have surrendered before the Court. Then, he made an application for police custody, and the same was ordered on 14.5.2003. All the accused were taken to police custody and were enquired. They gave confessional statements. The admissible parts of the confessional statements given by A-1, A-2 and A-3 are marked as Exs. P6, P7 and P8 respectively. M.Os. 1 to 3, aruvals, were recovered pursuant thereto, in the presence of witnesses. All the material objects recovered from the place of occurrence and from the dead body, and the weapons of crime were subjected to chemical analysis by the Forensic Sciences Department, which resulted in the reports, Exs. P19 to P21. On completion of the investigation, the Investigator, P.W. 17, who took up further investigation, filed the final report.

The case was committed to Court of Session. On committal of the case papers and the accused, necessary charges were framed by the trial Court after following the procedural formalities. In order to substantiate the charges, the prosecution examined 17 witnesses and relied on 21 exhibits and also 18 material objects. On completion of the evidence on the side of the prosecution, all the three accused were questioned under Sec. 313 of Cr.P.C., as to the incriminating circumstances found in the evidence of the prosecution witnesses. They flatly denied them as false. On the side of the defence, two witnesses were examined as D.Ws. 1 and 2. On completion of the trial, the trial Court heard the arguments advanced on either side, and took the view that the prosecution has proved the case beyond reasonable doubt and hence, found them guilty and sentenced them to imprisonment as stated above, which is the subject matter of challenge before this Court.

Advancing his arguments on behalf of the appellants, the learned Counsel made the following submissions:

(i) In the instant case, there are five witnesses. According to the prosecution, P.W. 1 was the person who gave the report; but, he turned hostile. Thus, there was no one to speak about the contents of Ex. P1, the report, which was the basis of the case, and the case became shaky. P.Ws. 3 and 4 have turned hostile. Then, the prosecution had only P.Ws. 2 and 5 to project its case. The lower Court has categorically pointed out that the evidence of P.W. 2 cannot be relied and hence rejected the same also. Then, what was available for the prosecution before the lower Court was only P.W. 5.

(ii) P.W. 5 is none else than the son of the second deceased and brother of the first deceased, and thus, he is a related witness. If the test of careful scrutiny is applied, his evidence should have been rejected and found to be doubtful. Even as per the F.I.R., the earliest document, P.W. 5 was not available at the time of occurrence. There is a vital discrepancy in the evidence of P.W. 5 as to the overt acts attributed, and the same also differs from the evidence of P.W. 2, which was not accepted by the lower Court. Under the circumstances, the evidence of P.W. 5 was not to be believed.

(iii) Apart from that, the lower Court would further add that the evidence of P.W. 5 if viewed from the medical evidence through the postmortem Doctor and the certificate, was found to be completely discrepant. Under the circumstances, it would be highly unsafe to sustain a conviction on such evidence. That apart, he is also a related witness. Hence, his evidence should not have been given any weight; but, the lower Court has done so.

Added further the learned Counsel that in the instant case, there has been a long pending motive between both the parties, and thus, they have attributed the false accusation against the accused; that in the instant case, even assuming the case of the prosecution is to be believed, so far as A-2 and A-3 are concerned, the evidence of P.W. 5 is doubtful as to their participation and complicity in the offence; that the lower Court has failed to consider these aspects of the matter; that they have got to be considered by this Court, and they are entitled for an acquittal in the hands of this Court.

The Court heard the learned Additional Public Prosecutor on the above contentions.

It is not in controversy that on the date of occurrence namely 4.5.2003 at about 5.30 A.M., two persons namely Veerappan and Maruthayee, were done to death in the place of occurrence. Both the dead bodies, following the inquest conducted by the Investigator, were subjected to postmortem by P.W. 8, the Doctor, who has given postmortem certificates, Exs. P2 and P3 respectively, and who also gave evidence before the Court. From this, it would be quite clear that the prosecution has proved the fact that both the deceased died out of homicidal violence. Apart from that, this fact that they died out of homicidal violence, was never questioned by the appellants/accused either before the trial Court or before this Court. Hence, without any impediment, it can be recorded so.

Coming to the question whether the prosecution has brought home the guilt of the accused, the Court, after perusal of the materials and careful consideration of the submissions made on either side, has to answer the same in the positive. In the instant case, the prosecution projected its case through the direct evidence by examining P.Ws. 1 to 5. P.W. 1 is the author of Ex. P1 document. He has turned hostile. But, at the same time, it is pertinent to point out that to the extent that the criminal law was set in motion in respect of the crime in question, the prosecution can place its case on that evidence. So far as P.Ws. 3 and 4 are concerned, they have turned hostile. Thus, their evidence was not useful to the prosecution. P.Ws. 2 and 5 have spoken about the prosecution case. But, the lower Court, for the reasons adduced in the judgment, was not ready to believe the evidence of P.W. 2, and thus, the only evidence available for the prosecution was that of P.W. 5. P.W. 5 is none else than the son of the second deceased and the brother of the first deceased. Needless to say, it is well settled proposition of law that merely because of the relationship between the eyewitnesses and the deceased, their evidence need not be rejected; but, it must be tested by exercising careful scrutiny. In the instant case, even after making the exercise of careful scrutiny, this Court is of the opinion that the evidence of P.W. 5 has inspired the confidence of the Court and was rightly accepted by the lower Court. Even as per the F.I.R., the earliest document, P.W. 5 has also accompanied the deceased, and he was also very well available at the place of occurrence, and he has also witnessed the occurrence. The occurrence has taken place at 5.30 A.M., and the F.I.R. has come into existence at 7.00 A.M. i.e., within a span of 2 hours. The respondent Police Station is also situate within 10 kilometres away from the place of occurrence. It has also reached the concerned Court at about 8.30 A.M. It remains to be stated that the name of P.W. 5 is mentioned in the F.I.R., and he has also participated in the inquest. All would indicate the presence and availability of P.W. 5 at the place of occurrence.

It remains to be stated P.W. 5 has clearly given a narration that all the three accused indiscriminately cut the first deceased and caused the death. So far as the attacks made by A-1 to A-3 on the second deceased Maruthayee, are concerned, the learned Counsel brought to the notice of the Court that there are some discrepancies. As regards the attacks, one cannot expect either to count the attacks or to point exactly the body portion where the attacks are made. But, the witness, P.W. 5, is very clear that all the three accused armed with aruvals, attacked the second deceased Maruthayee at the time of occurrence, and it was made first by A-2 and A-3 and subsequently by A-1. The witness has also clearly spoken to the fact that all the three accused are attributed with their overt acts by attacking Maruthayee. Thus, the discrepancies what are brought to the notice of the Court, in the opinion of the Court, are minor most and not to be given any much weight. It would be abundantly clear that the said witness was very well available. That apart, these two persons Veerappan and Maruthayee were attacked by all the three accused within a short span of time, and they caused their death instantaneously, which has been clearly spoken to by P.W. 5. In such circumstances, the evidence of P.W. 5, though uncorroborated and solitary, has inspired the confidence of the Court. His evidence could be well accepted, and it was rightly done by the lower Court. The medical opinion in this case fully stood in corroboration of the ocular testimony. Apart from that, all the three accused were taken to the police custody, and pursuant to their confessional statements, weapons of crime have also been recovered from them. Thus, the scientific evidence placed, is also in favour of the prosecution case.

Now, the contentions put forth by the learned Counsel for the appellants that there has been a motive in the past; but, the same cannot be a reason for such an act by the accused, and it is a tissue of falsehood have got to be rejected for the simple reason that all have spoken to the fact that there has been a dispute between the parties as to the worshipping in a temple and also a quarrel as to the fence, and civil proceedings are pending in Courts. Thus, it would be clear that the accused were on inimical terms, and motive was available for them to commit the offence in question. In view of the above, the prosecution has proved its case by sufficient evidence, and the lower Court was perfectly correct in accepting the case of the prosecution and recording a conviction under the provisions of law.

Therefore, the prosecution has clearly established that all the accused armed with aruvals, committed double murder by attacking both the persons. It is pertinent to point out that both the deceased remained unarmed at that time. Thus, the act of the accused would fall within the ambit of murder. The lower Court has found them guilty as per the charges and awarded punishment as required in law. There is nothing to interfere either in the conviction recorded or the sentence awarded by the lower Court. In the result, this criminal appeal fails and accordingly, stands dismissed confirming the judgment of the lower Court.

To:

1) The Additional District and Sessions Judge Fast Track Court No. I, Tiruchirapalli.

2) The Inspector of Police Musiri Police Station Musiri Taluk, Tiruchirapalli District (Cr. No. 333/2003)

3) The Public Prosecutor Madurai Bench of Madras High Court.