Sankar vs State

R. Mala, J.—This Revision is directed against the judgment passed by the learned First Additional District -cum- Sessions Judge (PCR), Thanjavur, in Crl.A.No. 39 of 2013, dated 24.06.2014, confirming the conviction and sentence imposed on the Revision petitioner by the learned Principal Sub Judge -cum- Principal Assistant Sessions Judge, Kumbakonam, in S.C.No. 175 of 2011, dated 08.04.2013.

The case of the prosecution, in a nutshell, is as follows:

(i) P.W.1 is residing at the backside of Banadurai lane at Kumbakonam Siddha Medical Centre. He was running a Juice Centre at Dr.Peasant Road. On 23.02.2010, when he returned back to the home, after buying a coffee, the accused Sankar was sitting in a rickshaw and taking beer. The accused asked P.W.1 to give Rs.25/-. Since P.W.1 gave amount to the accused on two or three occasions, he denied the same. Immediately, the accused stabbed him with knife on his left index finger, stomach, and left side of the forehead. P.W.2 to P.W.5 have seen the occurrence. P.W.2, who is the wife of P.W.1 and P.W.4 took P.W.1 in an auto belonging to P.W.4, to the Government Hospital, Kumbakonam. After giving first-aid, he was sent to Thanjavur Medical College Hospital, for further treatment. At the time of taking treatment, at about 10.00 p.m., the police officials came to the hospital and recorded his statement. Ex.P.1 is the complaint. The weapon used was marked as M.O.1.

(ii) P.W.9-Dr.Kamarul Jamal, is working as Assistant Medical Officer at Government Hospital, Kumbakonam. On 28.03.2010 at about 06.15 p.m., he examined P.W.1 and at that time, he told that one known person stabbed him with knife. He found that the injured was suffered from cut injury of 3 x 1 cm., on his stomach and incised injury of 4 x 2 x 1 cm on the left side forehead and cut injury of 5x2 cm on the left index finger. After giving first-aid, he referred the injured to Thanjavur Medical College Hospital, for further treatment. He has given the accident register, which was marked as Ex.P.5. To show that P.W.1 sustained grievous injuries, the opinion given by the doctor belonging to Thanjavur Medical College Hospital was marked as Ex.P.6.

(iii) P.W.12, Dr.Ravikumar, is working as Professor of Thiruvarur Medical College Hospital. While he was working at Thanjavur Medical College Hospital, he examined P.W.1, who was admitted as in-patient, on the basis of the copy of accident register given by Kumbakonam. He found that P.W.1 sustained cut injury of 3 x 2 cm on stomach, because of which, there was bleeding from stomach, 4x2 cm cut injury on forehead and 5x2 cm cut injury on the left index finger and surgery was conducted for the injury sustained in stomach and he has given a wound certificate Ex.P.9.

(iv) P.W.10-Sangeetha is working as Sub-Inspector of Police at Kumbakonam Transport Department (Vigilance Cell). On 28.03.2010, while he was functioning as the Sub-Inspector of Police, Kumbakonam East Police Station, she went to the hospital at 06.30 p.m., on the basis of the information given by the Government Hospital, Kumbakonam. After knowing that the injured was taken to Thanjavur Medical College Hospital for further treatment, she went to Thanjavur. She obtained a complaint statement from P.W.1, who was admitted in ward No. 5, and registered a case in Crime No. 218 of 2010, for the offences punishable under Sections 294(b) and 307 IPC and prepared F.I.R.-Ex.P.7.

(v) P.W.11 the Inspector of Police, is working in the department of CBCID. On 28.03.2010, while he was working as Inspector of Police, Kumbakonam East Police Station, he took up the case in Crime No. 218 of 2010, for investigation, went to the place of occurrence and prepared the observation mahazar-Ex.P.4 and rough sketch-Ex.P.8, in the presence of witnesses. He recorded the statement of witnesses. On 29.03.2010 at about 05.00 a.m., he arrested the accused nearby Anand Sweet Stall at Madathu Street, in the presence of P.W.6 and P.W.7. At that time, the accused has given confession statement, which was recorded in the presence of P.W.6 and P.W.7. The admissible portion of the confession statement given by the accused was marked as Ex.P.2. At 06.30 a.m., the accused produced the knife measuring 25 cm., which was used for the commission of offence, and P.W.11 seized the same under Ex.P.3. Thereafter, he recorded the statement given by the doctor. On 30.05.2010 he laid a charge sheet against the accused for the offences punishable under Sections 294(b) and 307 of the Indian Penal Code.

(vi) Before the Trial Court, on behalf of the prosecution, P.Ws.1 to 12 were examined and Exs.P.1 to P.9 were marked along with M.O.1. On completion of the examination of the witnesses on the side of the prosecution, the accused was questioned under Section 313 Cr.P.C., as to the incriminating circumstances found in the evidence of the prosecution witnesses and he denied them as false. On behalf of the defence, no witness was examined and no document was marked.

(vii) On consideration of evidence available on record, the learned Principal Sub Judge -cum- Principal Assistant Sessions Judge, Kumbakonam, found the accused guilty under Section 307 I.P.C and sentenced him to undergo five years rigorous imprisonment and to pay a fine of Rs.3,000/-, in default in payment, to undergo three months simple imprisonment. Aggrieved by the Judgment of the Trial Court, an appeal has been preferred by the accused in Crl.A.No. 39 of 2013, before the learned I Additional District -cum- Sessions Judge (PCR), Thanjavur, and the same was dismissed, confirming the judgment of the Trial Court.

Challenging the Judgment of both the Courts below, this Revision has been filed by the Revision Petitioner/accused.

Assailing the judgment of conviction and sentence, the learned counsel for the revision petitioner has raised the following grounds:

(i) No independent witnesses were examined.

(ii) The evidence of P.W.2 and P.W.3 is contrary to the evidence of P.W.4, auto driver.

(iii) The injury sustained is only simple in nature and hence, the ingredients of Section 307 IPC have not been made out.

(iv) The material objects have not been seized and sent for chemical analysis.

The learned counsel for the revision petitioner would submit that the Trial Court and the first Appellate Court have not considered the above aspects and hence, he prays for setting aside the same.

Resisting the same, Mrs.S.Prabha, learned Government Advocate (Criminal side) would submit that the Trial Court and the first Appellate Court have correctly appreciated the evidence of P.Ws.1 to 4, who are the eye witnesses and came to the correct conclusion. Merely because P.W.1 sustained simple injury, it is not a ground for acquittal. To substantiate the same, she relied upon a decision of this Court in State of M.P. Vs. Kashiram and Others, . She would further submit that the evidence of P.Ws.2,3 and 4 is not contradicted with each other. However, she would submit that the evidence of P.W.1 itself is sufficient to convict the revision petitioner, because he is an injured eye witness. There is no reason for discarding the evidence of P.Ws.1 to 4. The Trial Court and the first Appellate Court have considered the same in proper perspective.

She would further submit that non-recovery of bloodstained cloths of P.W.1 and bloodstained earth in the scene of occurrence are not fatal to the case of the prosecution, since there is an eye witness to prove the case of the prosecution.

She would further submit that since the injured is the eye witness, there is no necessity for examining the independent witnesses and there is no previous enmity between P.W.1 and the revision petitioner. Hence, she prays for dismissal of the revision.

Considering the rival submissions made by both sides, and on perusal of the typed-set of papers, I am of the view that the only point now to be decided in this revision is whether the evidence of P.W.1 is sustainable in law?

The case is based on the evidence of eye witnesses viz., P.W.1 to P.W.4. P.W.1 is the injured eye witness. P.W.2 is the wife of P.W.1. P.W.3 is the sister of P.W.1 and P.W.4 is the auto driver, who took him the injured P.W.1 to the Government Hospital, Kumbakonam.

The learned counsel for the petitioner has harping upon the fact that the evidence of P.W.4 is contrary to the evidence of P.W.2 and P.W.3. He would submit that P.Ws.1 to 4, in the chief-examination, had deposed as a parrot like evidence. But, in the cross-examination, they have given a contradict statement. Even though P.W.3, the sister of P.W.1, in her chief- examination, has narrated the incident how it was happened, but whereas in the cross-examination, she has stated that after hearing the incident only, she came to the place of occurrence. On going through the evidence of P.W.3, I am of the view that P.W.3 is not an eye witness and her evidence is not trustworthy and hence, it is, hereby, discarded.

Insofar as the evidence of P.W.4 is concerned, even though he had deposed in his chief-examination as if he was an eye witness, in cross- examination, he had stated that when the incident is going on, he left the place. In such circumstances, I am of the view that the evidence of P.W.4 also is not helpful for the prosecution for fascinating conviction on the revision petitioner, on the basis of his evidence.

Now the only point to be decided is whether the evidence of P.W.1 and P.W.2 is reliable?

It is true that P.W.1 and P.W.2 are the husband and wife and they were doing fruit business in Peasant Road. In such circumstances, their evidence seem to be the related evidence.

As per the dictum of the Apex Court, a single related eye witness is reliable, provided it must be natural, cogent and also trustworthy and hence, this Court ought to have scrutinized the evidence of P.W.1 and P.W.2 with great care and caution.

A careful perusal of the chief and cross-examination of P.W.1 and P.W.2 would go to show that there is no reason for discarding their evidence. They are giving evidence against the revision petitioner and also considering the way in which, they withstand the cross-examination, I am of the view that the evidence of P.W.1 and P.W.2 is nature, cogent and reliable.

At this juncture, on a perusal of the typed-set of papers, it is seen that the revision petitioner is a neighbour and he also borrowed money then and there from P.W.1 and on the date of incident, he had been taking beer and he requested loan from P.W.1. But, P.W.1 refused to give and immediately he stabbed him with knife and he has caused three injuries, as per the evidence of P.W.9-Dr.Kamarul Jamal. Therefore, it is clear from the evidence of P.W.9, as soon as P.W.1 sustained injuries, he was taken by P.W.2, at 06.15 p.m., on 28.03.2010 to P.W.9, who gave first-aid treatment and, thereafter, referred him to Thanjavur Medical College Hospital, for further treatment, where P.W.12-Dr.Ravikumar has given treatment. P.W.12 came to the conclusion that the injury No. 1 is grievous in nature and he has given a wound certificate, which is marked as Ex.P.9. From the evidence of P.W.12, it is made clear that the accused has caused injuries, that too, grievous in nature, as alleged by P.W.1 and P.W.2.

At this juncture, it is appropriate to consider the decision relied upon by the learned Government Advocate (Criminal side) in State of M.P. Vs. Kashiram and Others, cited supra, wherein it was held in paragraph No. 10 that bodily injury capable of causing death should have been inflicted to make the case under Section 307 IPC. It is appropriate to incorporate paragraph No. 10 of the said decision, which reads thus:

"10. It is sufficient to justify a conviction under Section 307 if there is present an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. The Section makes a distinction between the act of the accused and its result, if any. The Court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the Section. Therefore, an accused charged under Section 307 IPC cannot be acquitted merely because the injuries inflicted on the victim were in the nature of a simple hurt."

In the light of the decision cited supra, I am of the view that the argument advanced by the learned counsel for the revision petitioner that the injury sustained is only simple in nature and hence, the ingredients of Section 307 IPC have not been made out, does not merit acceptance. In the present case, the evidence is that the petitioner having motive to commit murder. The word used was ''(***)'', which shows that the petitioner having intention to murder P.W.1. Hence, the ingredients of Section 307 IPC are made out.

It is true that no independent witnesses were examined. As already stated, P.W.4 is an independent witness. P.W.5-Prakash was also examined as independent witness. So, the argument advanced by the learned counsel for the petitioner that non-examination of independent witness is fatal to the case of the prosecution also does not merit acceptance.

It is true that P.W.7-Kanagaraj was examined as attestor of the observation mahazar, but he was turned hostile and hence, it will not, no way, affect the case of the prosecution.

Admittedly, the material objects were not seized and sent for chemical analysis. Since the case is based on the injured eye witness and his evidence is reliable, non-seizure of material objects will not be a reason for interfering with the finding of both the Courts below. Hence, the argument advanced by the learned counsel for the revision petitioner that non-seizure of bloodstained earth and non-seizure of bloodstained cloths of P.W.1 are fatal to the case of the prosecution also does not merit acceptance.

Considering the cumulative evidence of P.W.1 and P.W.2 and that has been corroborated by the evidence of P.W.9 and P.W.12, I am of the view that the prosecution has proved the guilt of the accused for the offence punishable under Section 307 IPC beyond reasonable doubt. That has been correctly dealt with by the Trial Court and confirmed by the first Appellate Court. Therefore, I do not find any reason to interfere with the conviction imposed on the revision petitioner under Section 307 IPC.

Now, this Court has to decide as to whether the quantum of sentence imposed by the Trial Court is fair or excessive?

The Trial Court has sentenced him to undergo five years rigorous imprisonment and imposed a fine of Rs.3,000/-, in default in payment, to undergo three months simple imprisonment. Admittedly, the fine amount has been paid.

The learned counsel for the petitioner would submit that the revision petitioner is the rickshaw puller and already he was in judicial custody for 30 days before filing of charge sheet and after conviction, he is in jail for 90 days. Hence, he prays for lesser punishment.

Considering the facts and circumstances of the case and also considering the plight of the revision petitioner, I am inclined to reduce the sentence. Accordingly, sentence is reduced from 5 years rigorous imprisonment to 3 years rigorous imprisonment. The fine amount imposed on the revision petitioner is, hereby, confirmed. The period of sentence already undergone by the revision petitioner shall set off.

The Criminal Revision Case is disposed of with the above modification in respect of the sentence alone. Consequently, the connected miscellaneous petition is closed.