Sathish, Mohanan and Kumar vs State of Tamil Nadu

M. Chockalingam, J.—Challenge is made to a judgment of the Sessions Division, Kanyakumari at Nagercoil, in S.C. No. 141 of 2007

whereby these three appellants stood charged u/s 302 read with 34 of IPC, tried, found guilty and awarded life imprisonment along with a fine of

Rs. 5000/- and default sentence.

The factual matrix which led the prosecution to put forth its case before the trial Court, can be stated as follows:

(a) P.W.1 is the wife; P.W.2 is the daughter and P.W.5 is the son of the deceased Thomas. They were residing at Kochuvilai Veedu, Kollemcode.

A-1 to A-3 were the residents of the same place, and they were close associates. One Anitha, the niece of P.W.1, married one Mohan Raj 10

years before, and they had two children. A-1 who was residing nearby the house of Anitha developed intimacy with her and eloped her along with

the children. After sometime, all of them came back. P.W.1 objected to the same.

(b) On 15.7.2006, A-1 picked up quarrel with the deceased. Even on 16.7.2006 also, A-1 when, he was in the company of A-2 and A-3,

caused nuisance by shouting, and the same was objected to by the deceased Thomas. In the evening hiours, when the son of Anitha was playing

on the road, the deceased advised him not to do so, and even then he did not pay heed to the same. Then the deceased slaped him. A-1

questioned the same and assaulted the deceased with the stick. P.Ws.1 and 5 questioned the same.

(c) On 17.7.2006 at about 13.00 hours, when the deceased was returning home to take his lunch and was proceeding on the pathway near

Madathu Nadai, which was adjacent to Narayana Namboodhri Tope, all the three accused with the common intention of killing him, waylaid him.

A-1 was armed with a patta knife; A-2 with a spade handle and A-3 with a stick. Uttering the words ""So long you live, I could not live with

Anitha"", A-1 attacked the deceased on his back side of the neck and both legs. A-2 attacked him with the spade handle on the front part of the

head, left eyebrow, left elbow and right elbow. A-3 also attacked him with the stick on the left hand wrist portion. This was witnessed by P.W.1.

When she raised a distressing cry, all the accused fled away from the place of occurrence. P.W.1 immediately took him to Kuzhithurai

Government Hospital where P.W.2, the Doctor, medically examined him and has given Ex.P2, the accident register copy. Thereafter, he was

referred to Asaripallam Government Hospital where he was declared dead.

(d) P.W.1 proceeded to the respondent police station where P.W.9, the Sub Inspector of Police, was on duty. He gave Ex.P1, the report, on the

strength of which a case came to be registered in Crime No. 255 of 2006 u/s 307 of IPC. The printed FIR, Ex.P12, was despatched to the Court.

(e) While P.W.10, the Inspector of Police of that Circle, was proceeding to the police station on receipt of the information about the murder, he

received a message that the deceased died. He reached the respondent police station and altered the case into Section 302 of IPC. The express

report, Ex.P13, was sent to the Court. Thereafter, P.W.10 took up investigation, proceeded to the spot, made an inspection and prepared an

observation mahazar, Ex.P4, and also a rough sketch, Ex.P14. Then he conducted inquest on the dead body of Thomas in the presence of

witnesses and panchayatdars and prepared an inquest report, Ex.P15. A requisition was given to the hospital authorities for the purpose of

autopsy.

(f) P.W.8, the Assistant Professor/Tutor in Forensic Medicine, Kanyakumari Medical College, on receipt of the requisition, conducted autopsy on

the dead body of Thomas and has found 19 external injuries. He has issued a postmortem certificate, Ex.P9, and has given his opinion under

Ex.P10 that the deceased would appear to have died of shock and haemorrhage due to multiple injuries.

(g) Pending investigation, all the three accused were arrested on 18.7.2006. A-1 gave a confessional statement voluntarily which was recorded in

the presence of witnesses. The same was marked as Ex.P6, pursuant to the same, he also produced all the three weapons namely M.O.1,

vettukathi, M.O.2, wooden stick, and M.O.3, wooden handle, in the presence of P.W.7, the Village Administrative Officer. They were all

recovered under a cover of mahazar. The accused were sent for judicial remand.

(h) All the material objects recovered from the place of occurrence and from the dead body and also the weapons of crime were subjected to

chemical analysis by the Forensic Sciences Department which resulted in Ex.P18, the chemical analyst''s report, and Ex.P17, the serologist''s

report. On completion of investigation, the Investigator filed the final report.

The case was committed to Court of Sessions, and necessary charge was framed. In order to substantiate the charge, the prosecution examined

10 witnesses and also relied on 18 exhibits and 12 material objects. On completion of the evidence on the side of the prosecution, the accused

were questioned u/s 313 of Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses which he flatly denied

as false. No defence witness was examined. 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 as per the charge and awarded the punishment as referred to above.

Hence this appeal at the instance of the appellants.

Advancing arguments on behalf of the appellants, the learned Counsel would submit that in the instant case, the prosecution rested its case on

the evidence of the eyewitnesses who are P.Ws.1, 4 and 5; that the evidence of these witnesses is neither credible nor acceptable for the reason

that P.W.1 is the wife; P.W.4 is the daughter and P.W.5 is the son of the deceased; that they could not have seen the occurrence at all; that

according to P.W.1 wife, her husband Thomas used to come for lunch, and on that day, he did not come within time, and she took the lunch in a

vessel; that she was unable to tell the occurrence place correctly as found in the observation mahazar; that according to the prosecution, the

occurrence place is actually a passage situated in Narayana Namboodhri tope; but it is not found either in the evidence of P.W.1 wife, or in the

sketch; that apart from that, though P.W.1 claimed that she took the food materials in a vessel, the said vessel was not at all recovered; that even

the observation mahazar does not indicate that food materials were actually scattered at the place of occurrence; that as far as P.W.4 is

concerned, she is the daughter of the deceased; that according to her, she attended the school on 17.7.2006; that under the Right to Information

Act, a communication was addressed to the school authorities, and it was replied that she has attended the school both morning and afternoon

sessions; that had it been correct, she could not have seen the occurrence at all; that as far as P.W.5 is concerned, he is the son of the deceased;

that he could not speak about the factual position correctly; that apart from that, there are 29 witnesses mentioned in the list of witnesses, out of

whom only 10 were examined; that though independent witnesses were mentiioned in the list, they were not examined before the trial Court; and

that the prosecution did not come with the explanation to offer in that regard.

Added further the learned Counsel that P.Ws.1, 4 and 5, the so-called eyewitnesses, have specifically stated in their evidence that A-2 was

having a stick and A-3 was having a spade handle; but the charge and the case of the prosecution were contrary that A-2 was actually holding a

spade handle, and A-3 was having a stick, and thus P.Ws.1, 4 and 5 could not have seen the occurrence at all; that the place of occurrence would

also differ; that the prosecution was unable to establish the place where it has taken place; that the earliest document which has come into

existence, is Ex.P2, the accident register copy, which has been issued by P.W.2, the Doctor, who medically examined the deceased immediately

after the occurrence; that a perusal of Ex.P2, the accident register copy, does not even indicate the time of occurrence or any weapons that were

used; but contrarily it is found that four known persons and one unknown person have participated in the crime, thus totalling to 5; but the

prosecution came with the specific case that only A-1 to A-3 have participated in the crime; that under the circumstances, the prosecution has

miserably failed to prove its case, and hence they are entitled for acquittal in the hands of this Court.

Added further the learned Counsel that as far as A-3 is concerned, his date of birth is shown as 12.5.1988 as per the school records; that the

occurrence has taken place on 17.7.2006; that the conviction was made on 21.4.2009, on which date he has not completed 21 years, and thus he

was an adolescent offender and should have been sent to the Borstal School; and that applying the provisions of the Borstal School Act, the

punishment of life imprisonment should not have been inflicted on him.

In order to fortify his contention, the learned Counsel relied on a Full Bench decision of this Court reported in (2008) 1 MLJ (Crl) 832 (A.

Thangammal v. State) and also a decision of the Apex Court reported in C. Elumalai Vs. State of Tamil Nadu, . Therefore, he would submit that

the judgment of the trial Court in respect of A-3 has got to be set aside and A-3 be sent to the Borstal School if the Court comes to the conclusion

that the factual matrix put forth by the prosecution remained proved.

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

It is not in controversy that one Thomas, the husband of P.W.1, and the father of P.Ws.4 and 5, was done to death in an incident that had taken

place at 1.00 P.M. on 17.7.2006. Following the inquest made by the Investigating Officer, P.W.10, the dead body was subjected to postmortem

by P.W.8, the Doctor, who has given a categorical opinion as a witness before the Court and also through the contents of the postmortem

certificate that Thomas died of shock and haemorrhage due to multiple injuries. Apart from that, the fact that he died out of homicidal violence was

never disputed by the appellants before the trial Court, and under the circumstances, the trial Judge was perfectly correct in recording so.

In order to substantiate that these three appellants armed with weapons, attacked the deceased at the time and place of occurrence, the

prosecution has examined three witnesses who are P.Ws.1, 4 and 5. True it is, they are closely related to the deceased since they were wife,

daughter and son of the deceased respectively. It is settled principle of law that merely on the ground of relationship, the evidence of the

eyewitnesses cannot be rejected, but before acceptance, the Court must apply the test of careful scrutiny. In the case on hand, even after the

application of the test, this Court is satisfied that their evidence has got to be accepted. According to P.W.1, on that date, since he did not return

for lunch, she was carrying food for him, and on the way she saw the occurrence. According to P.W.4, she was returning from school and at that

time, she happened to see the occurrence. P.W.5 is the son of the deceased. According to him, he also went with his father for the masonry work,

and they were returning, and at that time, the occurrence has taken place. Thus when all of them were just coming nearby the place of occurrence,

they have seen the occurrence. The learned Counsel for the appellants made comments on their evidence. As far as P.W.1 is concerned, this

Court is of the view that her evidence is natural, and the non-recovery of the vessel in which the food materials were carried by her, cannot be a

reason to doubt her testimony. It is not the case of the prosecution that all the food materials carried by her, were scattered, and hence no question

of recovery of the same or mentioning the same in the observation mahazar would arise.

As far as P.W.4 is concerned, the learned Counsel brought to the notice of the Court that 17.7.2006 was a working day, and she has attended

the school both morning and afternoon sessions. It remains to be stated that the witness has categorically spoken to the fact that on that day, the

mid-term test was actually conducted, and after the test was over by 12.30 P.M., she was returning home, and thus she was able to witness the

occurrence.

As far as P.W.5 is concerned, he is the son, and he accompanied his father Thomas for masonry work and was returning with him in the

afternoon. At this juncture, it is pertinent to point out that the statements of these witnesses were recorded by the Investigating Officer P.W.10, on

the very day, and they were despatched to the Court shortly thereafter. The learned Counsel pointing to their evidence would further urge that they

were unable to speak about the place of occurrence properly. This contention cannot be countenanced. The Court also scrutinised the observation

mahazar and also the sketch. All the places are situated nearby and there is actually a passage in which the occurrence has taken place. The same

is also noted in the sketch. It remains to be stated that as far as the contents of the observation mahazar and sketch are concerned, it was never

disputed by the appellants before the trial Court, and thus the contents have got to be taken as correct.

As far as the criticism levelled by the learned Counsel for the appellants that P.Ws.1, 4 and 5 could not give correct description of the

weapons held and wielded by the appellants is concerned, the prosecution has given a proper explanation that the weapons were carried by the

individual accused, and the witnesses have given their names. Hence that doubt is also cleared.

The learned Counsel also brought to the notice of the Court that as far as the contents of Ex.P2 are concerned, there is a discrepancy, and thus

importance should be given to that discrepancy to reject the testimony of P.W.5. This Court is unable to agree with the learned Counsel for the

simple reason that P.W.5, the son of the deceased, who was in his tender age, has immediately taken his father to the hospital in such a serious

condition, and therefore, the Court must view the matter from the grip of anxiety under which he was put. Under the circumstances, the contents of

the document cannot be given much importance.

Now the comments made by the learned Counsel that independent witnesses were not examined cannot be a reason to doubt the testimony of

the witnesses who were examined in Court. That apart, the medical evidence canvassed by the prosecution through the postmortem Doctor, and

the contents of the postmortem certificate also stood in full corroboration of the ocular testimony.

For the foregoing reasons, the prosecution, in the considered opinion of the Court, has proved that all the accused armed with weapons, have

actually waylaid the deceased in a place where they actually stood, and attacked him which would be indicative of the common intention shared by

all in causing his death. The trial Judge was perfectly correct in finding all of them guilty u/s 302 read with 34 of IPC.

Now, at this juncture, the Court has to look into the contention put forth by the learned Counsel for the appellants that the date of birth of A-3

was 12.5.1988 as per the records produced, and the sentence was imposed on 21.4.2009, and he has not completed 21 years of age on that

date, and under the circumstances, the provisions of Section 8 of the Tamil Nadu Borstal Schools Act, 1926, have got to be applied, and the

Court has got discretion to send A-3 to the Borstal School and not to impose imprisonment for life. The Full Bench of this Court had an occasion

to consider the question in a case reported in (2008) 1 MLJ (Crl) 832 (A.THANGAMMAL v. STATE). It would be more apt and appropriate to

reproduce the relevant paragraph as follows:

Whereas, the language of Section 8 of Borstal Schools Act is clearly different. The Court shall consider whether in lieu of passing a sentence of

imprisonment, it shall pass a sentence of detention in Borstal School and before passing a sentence of detention, the Court shall call for a report

from the Probation Officer where the offender permanently resided and any other report or representation it shall make further enquiry as it thinks

fit as to the suitability of the case for treatment in Borstal Schools Act. Therefore, the Court is given the power to decide the suitability of the

offender to be sent to Borstal detention in lieu of imprisonment. An apprehension may arise whether undeserving convicts would get the benetif of

this provision merely because they are adolescent offenders. But, this apprehension must be rejected as baseless since Section gives the Court the

discretion to pass either a sentence of imprisonment or detention in a Borstal School. It is the Court which has the duty to exercise this discretion

properly. But, Section 10 and 10-A give the power to the Inspector General of Police and the State Government to transfer prisoners to Borstal

School. Neither of the two authorities have the power to pass a sentence of detention in a Borstal School. Only the Court has that power. The

power under Sections 10 and 10-A is a power of transfer to a Borstal School after a sentence of imprisonment has been passed by the Court.

Section 10 which deals with adolescent offender undergoing imprisonment in consequence of a sentence passed either before or after the passing

of this Act might with advantage be detained in a Borstal school, directs that such person shall be transferred from prison to a Borstal School, there

to serve the whole or any part of the unexpired residue of his sentence. Similarly, Section 10-A also deals with power of State Government to

transfer offenders who have been sentenced to transportation. Therefore, Section 8 is a first stage where in lieu of a sentence of imprisonment,

sentence of Borstal School detention is passed. Section 10 and 10-A come later where a sentence of imprisonment has been passed and

thereafter, the Inspector General or the State Government, as the case may be, shall direct transfer of that offender to Borstal School and other

provisions shall apply as if he had been originally sentenced to detention in a Borstal School u/s 8.

Following the same, this Court has to agree with the contention put forth by the learned Counsel for the appellants so far as A-3 is concerned,

and thus he has got to be sent to the Borstal School. Accordingly, while confirming the conviction of A-3 u/s 302 read with 34 of IPC, the life

imprisonment imposed by the trial Court on him, is set aside, and A-3 is directed to be detained in the Borstal School till he attains the age of 23 as

envisaged under the Act.

As far as A-1 and A-2 are concerned, the judgment of the trial Court finding them guilty u/s 302 read with 34 of IPC and awarding life

imprisonment, is sustained.

Accordingly, this criminal appeal is disposed of.