Raju Naicker vs State

D. Murugesan, J.—The appellant is the sole accused in Sessions Case No. 75 of 2002 on the file of Additional Sessions Judge, Fast Track Court No. II, Tuticorin. He was charged for the offence u/s 302 IPC, tried therefor, found guilty thereunder and sentenced to undergo life imprisonment and also to pay a fine of Rs. 500/-, in default to undergo six months rigorous imprisonment. Challenging the said conviction and sentence, the present appeal has been filed by him.

To bring home the charge against the accused, the prosecution examined 11 witnesses as P.Ws.1 to 11 and marked 16 exhibits as Exs.P-1 to P-16. In addition to the above, M.Os.1 to 6 were marked.

(a)According to the prosecution, there was a long standing civil dispute existed between P.W.1 Pitchammal and the accused in connection with a family property. Subbiah Naicker (the deceased in this case), father of P.W.1, supported her. In pursuance of the said dispute, on 21.04.2000 at about 6.00 p.m., the accused approached P.W.1 at Meenatchipatti and insisted that she should vacate the house as he had to put up construction on the disputed place. Subbiah Naicker, the deceased, picked up a quarrel with the accused and refused to vacate the house. Hence the accused developed enmity with Subbiah Naicker. Due to the said enmity, on 23.04.2000 at about 9.00 a.m., when Subbiah Naicker was grazing the cattle belonged to his another daughter Isakkiammal in the dry land of one Pandi Naicker, the accused, with an intention to commit murder of Subbiah Naicker, attacked him with ''cozhiwal aruval'' on his front forehead, right eye-brow, right side head, chin, etc. and caused bleeding injuries. Subbiah Naicker succumbed to the said multiple injuries on the spot itself. P.W.1 and P.W.2 Jakkammal were present in the scene of occurrence and they were the eye-witnesses to the occurrence. P.W.3 Chockalingam came to the scene of occurrence on hearing about the incident. P.W.10, on his way home after collecting firewood, found P.Ws.1 and 2 weeping near the dead body of the Subbiah Naicker and he informed the same to Isakkiammal. Thereafter, P.W.1, along with P.W.3, went to the police station and lodged the oral complaint with P.W.8, the Sub-Inspector of Police, who recorded the oral complaint, Ex.P-1, at 1.00 p.m. on 23.4.2000 and based on which he registered a case in Crime No. 125/2000 u/s 302 IPC and prepared Ex.P-12 FIR. He sent the same to the Court as well as to the higher authorities through P.W.5 Constable. Ex.P-6 is the passport given to P.W.5.

3(b). P.W.11 Inspector of Police took up the investigation in the case, proceeded to the scene of occurrence, made an observation and prepared Ex.P-2 observation mahazar in the presence of P.W.4 Village Administrative Officer and also drew Ex.P-15 rough sketch. He conducted inquest over the dead body of the deceased in the presence of panchayatdars and prepared Ex.P-16 inquest report. During inquest, he examined some witnesses and recorded their statements. He recovered M.O.2 bloodstained earth and M.O.3 sample earth from the scene of occurrence under Ex.P-3 mahazar attested by P.W.4 and another.

3(c). P.W.6, the Constable took the body for postmortem with Ex.P-13 requisition. P.W.9, the Doctor conducted postmortem and issued Ex.P-14 the postmortem certificate opining that the deceased would have died 24-48 hours prior to the postmortem due to shock and haemorrhage as a sequale to the multiple injuries and injury to brain. After postmortem, P.W.6 recovered M.O.4 bloodstained T-shirt, M.O.5 bloodstained dhoti, and M.O.6 jatti from the body of the deceased and handed over them at the police station. Ex.P-7 is the passport given to him.

3(d). In continuation of the investigation, P.W.11 arrested the accused at 4.30 p.m. on 24.04.2000 in the presence of P.W.4 and another and at that time the accused gave a confession statement, the admissible portion of it is marked as Ex.P-4, pursuant to which M.O.1 ''cozhiwal aruval'' was taken out and produced by the accused and which was seized under Ex.P-5 mahazar, attested by P.W.4. P.W.11 gave Ex.P-8 requisition to the court to subject the material objects for chemical analysis. P.W.7 Magisterial Clerk speaks about the sending of the material objects to forensic lab under Ex.P-9 Court''s letter and the receipt of Ex.P-10 the chemical examiner''s report and Ex.P-11 the serologist''s report. P.W.11 the Inspector of Police, on completion of investigation, filed the final report before the court on 31.05.2000.

When the accused was questioned u/s 313 Cr.P.C. about the incriminating circumstances found in the evidence of prosecution witnesses, he denied each and every circumstance as false and pleaded not guilty. He has not chosen to examine any witness or mark any document on his side.

The learned Additional Sessions Judge, on consideration of the evidence of P.Ws.1 and 2, the eye-witnesses to the occurrence, coupled with the evidence of P.W.3, P.W.4, P.W.9 as well as the Investigation Officer P.W.11, came to the conclusion that due to the previous enmity, the deceased was murdered by the accused/appellant and found him guilty and sentenced him as stated earlier. Hence the appeal.

Before us, the learned Counsel appearing for the appellant has questioned the conviction and sentence on the following grounds:

(i) P.W.1 is the daughter of the deceased and P.W.2 is also related to P.W.1 and their very presence in the scene of occurrence is doubtful. Considering the relationship, coupled with the fact that there are contradictions in their evidence, the trial court ought to have disbelieved the evidence of both the witnesses.

(ii) When once the evidence of P.Ws.1 and 2 is disbelieved, there is no other evidence or material to sustain the prosecution case.

(iii) When P.W.1 was categorical that the deceased had the habit of wearing ring, but he already removed the ring and handed over the same to his grand-son, whereas the evidence of P.W.2 is that at the time of occurrence the deceased was wearing the ring and therefore this contradiction in the evidence of P.Ws.1 and 2 also affects the prosecution case.

In support of the above, the learned Counsel for the appellant drew our attention to the fact that in the chief examination P.W.1 has stated that after the occurrence at 9.00 a.m. on 23.04.2000 she was only in the scene of occurrence till 10.30 a.m. and only when one Chockalingam (P.W.3), the husband of her sister, came to the scene, she went to the police station and lodged the complaint. But, on the other hand, in the cross-examination she has stated that she was in the scene of occurrence till the police came to the spot and only thereafter she went to the police station and lodged the complaint. The above discrepancy goes to the root of the matter in lodging the complaint and it would shatter the case of the prosecution. Secondly, the learned Counsel would contend that the ''cozhiwal aruval'' (M.O.1) is said to have been seized under Ex.P-5 mahazar and in the mahazar it is stated that bloodstained cozhiwal aruval was seized, but Ex.P-10 Forensic Report indicates that no blood was detected on M.O.1 aruval. According to the learned Counsel, this is a vital contradiction going to the root of the very recovery of M.O.1 aruval said to have been used by the accused for the commission of the offence and it throws serious doubt on the prosecution case.

We have heard the learned Additional Public Prosecutor on the above aspects.

Before we delve upon the above submissions, the evidence of P.Ws.1 to 4 as well P.W.9 are to be carefully considered. As stated earlier, P.W.1 is the daughter of the deceased; P.Ws.2 and 3 are related to P.W.1. P.W.4 is the Village Administrative Officer and P.W.9 is the postmortem doctor. It is not a rule in all the cases that wherever the eye-witnesses are closely related to the deceased, the evidence of such witnesses should be disbelieved. What is expected is that their evidence should be carefully scrtinized and whether to believe or to disbelieve such evidence depends upon the consideration of the prosecution case in entirety.

It is just and necessary to cite the decision of the Honourable Apex Court in State of Punjab Vs. Karnail Singh, . An excerpt from it, would run thus:

We may also observe that the ground that the witnesses being close relatives and consequently, being partisan witnesses, should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dalip Singh v. State of Punjab in which surprise was expressed over the impression which prevailed in the minds of the Members of the Bar that relatives were not independent witnesses. Speaking through Vivian Bose, J., it was observed: (AIR p.366, para 25)

We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in - Rameshwar v. State of Rajasthan AIR at p.59. We find, however, that it unfortunately still persists, if not in the judgments of the courts, at any rate in the arguments of counsel.

The dictum of the Honourable Apex Court in Kartik Malhar Vs. State of Bihar, , would run thus:

We may also observe that the ground that the witnesses being close relatives and consequently, being partisan witnesses, should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dalip Singh v. State of Punjab in which surprise was expressed over the impression which prevailed in the minds of the Members of the Bar that relatives were not independent witnesses. Speaking through Vivian Bose, J., it was observed: (AIR p.366, para 25)

We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in - Rameshwar v. State of Rajasthan AIR at p.59. We find, however, that it unfortunately still persists, if not in the judgments of the courts, at any rate in the arguments of counsel.

In this case, this Court further observed as under:

A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth.

P.W.1 had categorically spoken about the previous enmity between herself and the accused relating to a land dispute. It is clear from his evidence that her father, the deceased, supported her. She has also spoken that two days prior to the date of occurrence, the accused came to her place and compelled her to vacate the house so that he could put up a construction on the disputed land. She has also categorically stated that the above request was not acceded to, not only by her but also by her father, and at that time the deceased had a quarrel with the accused and on that date the accused threatened the deceased with dire consequences. The previous enmity between the deceased and the accused is also spoken to by P.W.3 Chockalingam, while he stated that the deceased and P.W.1 were living together and there was a long standing dispute relating to the land in question between the accused and P.W.1 and the deceased supported P.W.1. The evidence of P.W.1 as to the motive is corroborated by P.W.3 and we find absolutely no reason to disbelieve the evidence of both P.W.1 and P.W.3 in regard to the motive for the occurrence.

Insofar as the occurrence is concerned, P.W.1 had specifically stated that while the deceased was grazing the cattle in the dry land belonged to one Pandi Naicker, the accused came to the scene of occurrence at about 9.00 a.m. on the occurrence day and attacked the deceased with a ''cozhiwal aruval'' on various parts of the body. This statement of P.W.1 is corroborated by P.W.2. In fact, the evidence of P.W.2 is very categorical that she, along with Subbiah Naicker, went to the field to graze cattle and both of them were there in the field when the occurrence had taken place. Her statement is also to the effect that Chockalingam, who was present in the nearby land, immediately came to the spot on hearing about the occurrence. The above evidence of P.W.2 is corroborated by P.W.1, while she has stated that on hearing the incident Chockalingam came to the spot and thereafter he took the P.W.1 to the Police Station to lodge the complaint. This is also evident from the very FIR, marked as Ex.P-12. Further, P.W.4, who is the village administrative Officer, a mahazar witness, has also spoken to the recovery of M.O.2 bloodstained earth and M.O.3 sample earth from the scene of occurrence. From the above evidence, it is clear that the incident had taken place in the scene of occurrence as spoken to by both P.W.1 and P.W.2 and as the same has been corroborated by P.W.3 and P.W.4, we are of the view that the prosecution has proved beyond reasonable doubt that the place in which the occurrence had taken place. Insofar as the implication of the appellant/accused to the offence is concerned, again the evidence of P.Ws.1 and 2 clearly implicate him in the crime and the same has not been assailed by the defence.

Insofar as the injuries sustained by the deceased, P.Ws.1 and 2 specifically deposed that the accused had inflicted injuries on the front forehead, right eye-brow, right side head, chin, etc. of the deceased and caused bleeding injuries. In this context, the evidence of P.W.9, the doctor who conducted postmortem on the body of the deceased, is referrable. It is his evidence that at the time of postmortem, he found the following injuries and to that effect he issued Ex.P-14 postmortem certificate.

External Injuries:

1) A cut injury vertical 6 x 3 x 3 cm. centre of forehead.

A cut injury 4 x 4 x 1/2 cm oblique right top corner of forehead.

3) A transverse cut injury 3 x 2 x 2 cm over right eyebrow.

A cut injury 4 x 2 x 2 cm on the chest.

Hyoid intact. Fracture of frontal bone present between the injury No. 1 and 2. Fracture of parietal bone on the left side present and bleeding over the surface of brain. Heart pale. Lung, Liver, Spleen, Kdney Pale. Stomach: Small intestine pale and empty. Brain partly liquid filled.

The above injuries, as spoken to by P.Ws.1 and 2, are medically corroborated. It is also the evidence of P.Ws.1 and 2 that after inflicting injuries on the deceased, the accused ran away from the place of occurrence and threw the aruval in a nearby place. This statement of P.Ws.1 and 2 gets corroboration from the recovery of M.O.1 aruval from the nearby place to the place of occurrence under Ex.P-5 mahazar, attested by P.W.4 village administrative officer, on the confession statement given by the accused.

From the above, we find no reason to disbelieve their evidence with regard to not only the motive but also the place of occurrence, the manner in which the occurrence had taken place, the involvement of the accused in the crime and the injuries inflicted by him on the deceased.

With the above background, the contradictions pointed out by the learned Counsel for the appellant should be considered.

Of course, in the chief examination P.W.1 had stated that she was in the scene of occurrence till 10.30 a.m. and she has not stated anything about the arrival of the police personnel; whereas in the cross-examination she has stated that she was in the scene of occurrence till the arrival of police in the scene place. However, the fact remains that P.W.1 was accompanied by P.W.3 Chockalingam to the police station and lodged the complaint, after Chockalingam arrived at that place at 10.30 a.m. This was spoken to by P.W.2 also. Therefore, the discrepancy pointed out by the learned Counsel for the appellant cannot be treated to be one which would shatter the entire prosecution case, when the evidence relating to the occurrence has been satisfactorily and sufficiently established. We have already pointed out that the evidence of P.Ws.1 and 2 cannot be disbelieved, merely because they are closely related to the deceased. Our attention was also drawn by the learned Additional Public Prosecutor that the accused is also closely related to the deceased as well as to P.Ws.1 and 2 and all of them in fact belong to close family.

Insofar as the contention regarding absence of bloodstain in M.O.1 aruval, it is to be seen that M.O.1 was seized based on the confession statement of the accused u/s 27 of the Indian Evidence Act. At the time of seizure, P.W.4 Village Administrative Officer was present and he attested Ex.P-5 mahazar. He has also spoken about the recovery of M.O.1 in the deposition. It is not the case of the defence that the village administrative officer had taken sides to depose in favour of prosecution. He being an independent witness, we find no reason to disbelieve his evidence as to the recovery of M.O.1. Of course, in Ex.P-5 it is stated that a bloodstained cozhiwal aruval (M.O.1) was recovered on 24.04.2000, but the fact remains that the same was sent to Forensic Lab only on 30.05.2000, after a period of nearly one month. It is true that the Forensic Report indicates that there was no detection of blood on M.O.1. During the course of deposition, P.W.9 postmortem doctor has also opined that the injuries found on the deceased and as spoken to by the prosecution could have been caused by a weapon like M.O.1 aruval. In such circumstances, merely because the forensic report does not indicate any bloodstain in M.O.1 aruval sent for chemical analysis, after a period of one month, it would not shatter the prosecution case when the occurrence is established by direct and convincing evidence.

The next contradiction as to the ring is also not that much vital and fatal to the prosecution case. According to the learned Counsel for the appellant that when P.W.1 was categorical that the deceased had the habit of wearing ring and on the date of occurrence he had removed the ring and handed over the same to his grand-son, the evidence of P.W.2 was that at the time of occurrence the deceased was wearing ring and this contradiction disproves the case of the prosecution. In our opinion, this minor discrepancy in the evidence cannot shatter the entire evidence in the event the other part of the evidence is cogent, convincing and unassailable without giving room for any suspicion or doubt. We have already held that the evidence of P.Ws.1 and 2 are satisfactory and sufficient and it is unerringly pointing to the guilt of the accused.

Though the defence had taken a stand that the deceased had an illicit intimacy with a woman belonging to Thevar Community and because of that he was murdered, the said suggestion was not categorical specifying any particular individual as to the enmity existed and it is a bald and general suggestion. In this context, it is also to be seen that the deceased was aged about 65 years on the date of occurrence. Hence the contention of the appellant in this regard cannot be accepted.

Except the above points, no other arguments are advanced on behalf of the appellant. As we have rejected the above three grounds of challenge and in the absence of any other challenge, we find no merit in the appeal to interfere with the conviction and sentence imposed on the appellant/accused by the trial court.

Accordingly, the appeal fails and the same is dismissed. The conviction and sentence imposed on the appellant/accused by the trial court is hereby confirmed.