Singh, Lenin @ Lenin Lawrence and Kannan @ Raj vs State

M. Chockalingam, J.—This judgment shall govern these three appeals, namely Crl.A. Nos. 29 and 212 of 2004 and 419 of 2005. The first one is by accused No. 2, the second one is by accused No. 1 and the third one is by accused No. 3 in Sessions Case No. 222/2004 on the file of learned Sessions Judge, Kanyakumari Division at Nagercoil. These three appellants, along with three other, who were ranked as accused Nos. 4 to 6, stood charged, tried and found guilty by the trial court as under.

Accused Nos. Charge Finding, conviction & Sentence Accused No. 1 Under Sections 148, 341 and Found guilty under Sections 148 302 IPC and 302 IPC, convicted thereunder and sentenced to undergo two years rigorous imprisonment and to pay a fine of Rs. 1000/-, in default to undergo six months rigorous imprisonment for the former offence and life imprisonment and also to pay a fine of Rs. 3000/-, in default to undergo three months rigorous imprisonment for the latter offence. However, he was acquitted of the charge u/s 341 IPC. Accused Nos. 2 Under Sections 148 and 302 Both the accused found guilty under and 3 read with Section 149 IPC Sections 148 and 304(i) IPC and each of them were sentenced to undergo two years rigorous imprisonment and to pay a fine of Rs. 1000/- in default to undergo six months rigorous imprisonment for the former offence and nine years rigorous imprisonment and to pay a fine of Rs. 3000/-, in default to undergo two years rigorous imprisonment for the latter offence. Accused Nos. 4 Under Sections 147, 341 and Found not guilty and acquitted of to 6 302 read with Section 149 all the charges. IPC.

Challenging the above stated conviction and sentence, the appellants have brought-forth this appeal.

The short facts necessary, sans unnecessary facts, for the disposal of the appeal can be stated thus:

(a) P.W.1 Chellammal is the mother of the deceased Vijayakumar. She has got six sons, including the deceased. P.W.2 Selvadhas is the brother-in-law of the deceased, i.e. his sister was given in marriage to the deceased Vijayakumar. They were all residents of Cherukol Sithanvilai. In an occurrence that took place earlier, the mother and the brother of accused No. 1 were done to death and in that incident, one of the son''s of P.W.1 was suspected to be an accused. One day prior to the occurrence, i.e. on 02.08.1996, P.W.1 went to Kottar Government Hospital to see her two other sons, by name Selvakumar and Chandrakumar, who were under treatment pursuant to an incident in which they were attacked by the accused party. After P.W.1 went to the hospital, the deceased Vijayakumar also came over there and when they were in the hospital, the accused party set fire to the house of P.W.1 following the incident in which the brother and mother of accused No. 1 were murdered and therefore even after discharge, P.W.1 and her sons were staying in the verandah of the hospital.

(b) In order to see the burnt house, P.W.1 and the deceased went to the village in the night hours and at that time, P.W.2, who came to the hospital, also joined with them. After seeing the house, they were returning and at that time the deceased Vijayakumar went to the tea shop of one Dhas for taking tea, but he did not come for a while. Immediately, P.W.1 and P.W.2 went over to see him and found the deceased Vijayakumar, after taking tea, coming in front of the house of one Jebamani and they also found accused Nos. 4 to 6 restraining the deceased, while the three other accused committing the of attacking the deceased, accused No. 1 attacked with a Vettukathi (M.O.1) on the right leg ankle of the deceased, accused No. 2 gave two cuts on the heels, accused No. 3 gave a cut on the backside of the head and when the deceased fell down, accused No. 1 again attacked him and thus the accused caused his instantaneous death. Thereafter, all the accused fled away from the place of occurrence. P.W.1 proceeded to the respondent police station and gave Ex.P-1 report to P.W.11, the Sub-Inspector of Police, who was on duty and on the strength of which a case came to be registered in Crime No. 495/1996 under Sections 147, 148, 341 and 302 IPC and Express FIR Ex.P-15 was despatched to the Court through a constable.

(c) P.W.12, the Inspector of Police, on receipt of a copy of Ex.P-15 FIR, took up the investigation, proceeded to the place of occurrence, made an inspection and prepared Ex.P-16, the observation mahazar, in the presence of two witnesses. He also prepared Ex.P-17, the rough sketch. He also caused the dead body to be photographed through P.W.8, the photographer, and Ex.P-6 series are the photographs and Ex.P-7 are their negatives. He conducted inquest on the dead body of Vijayakumar in the presence of witnesses and panchayatdars and prepared Ex.P-18, the inquest report and pursuant to which, he sent the body for postmortem with Ex.P-8, the requisition. Thereafter, he recovered M.O.2, the bloodstained earth, M.O.3, the sample earth and M.O.4, the bloodstained dried leaf, under Ex.P-19 mahazar attested by witnesses. He enquired P.Ws.1 to 6 and recorded their statements.

(d) P.W.9, the doctor attached to Kuzhithurai Government Hospital, pursuant to Ex.P-8, the requisition, conducted inquest on the dead body of Vijayakumar and has given his autopsy in Ex.P-9, the mortem certificate, that the deceased died of shock and haemorrhage due to the cumulative effect of the injuries sustained. Ex.P-10 is the loose sheet for postmortem examination. P.W.12, the Inspector of Police, recovered M.Os.5 and 6, the personal wearing apparels of the deceased, collected from the body of the deceased after postmortem.

(f) Pending investigation, at 11.00 a.m. on 20.08.1996, P.W.12, the Inspector of Police, arrested accused No. 1 in the presence of witnesses and when enquired, he volunteered to give a confessional statement, admissible portion of which is marked as Ex.P-20, pursuant to which M.O.1, vettukathi, produced by accused No. 1 was recovered under Ex.P-21 mahazar attested by witnesses. Thereafter, he handed over the investigation to his successor P.W.13.

(g) P.W.13, the Inspector of Police, arrested accused No. 3 at 4.00 a.m. on 18.03.1997 and subjected him to judicial custody. Other accused surrendered before the Court. Ex.P-11, the requisition, was given to the Court to subject all the material objects, except M.O.1, vettukathi, to chemical analysis and accordingly they were placed before the Forensic Department through Ex.P-12, the letter of the Court, which resulted in two reports, namely Ex.P-13, the Chemical Examiner''s Report and Ex.P-14, the Serologist''s Report. Thereafter, one Veluchamy, Inspector of Police, continued the investigation and on completion of the investigation filed the final report before the Judicial Magistrate concerned.

The case was committed to the Court of Session and necessary chargeas were framed. To substantiate the charges levelled against the accused, the prosecution marched 13 witnesses as P.Ws.1 to 13 and relied on 21 documents, marked as Exs.P-1 to P-21 as well as six material objects, marked as M.Os.1 to 6. On completion of the evidence on the side of the prosecution, the accused was questioned u/s 313 of the Criminal Procedure Code, procedurally as to the incriminating circumstances found in the evidence of the prosecution witnesses. The accused flatly denied them as false. No defence witness was examined. The trial court gave sufficient opportunity of being heard to both sides and after hearing the arguments advanced on either side and scrutinising the materials available, the trial court found accused Nos. 1 to 3, who are the appellants herein, guilty and sentenced them as referred to earlier and at the same time acquitted accused Nos. 4 to 6 from all the charges levelled against them. Aggrieved over the judgment of the trial court, the appellants have brought-forth these three appeals before this Court.

Advancing his arguments, Mr. K.Srinivasan, learned Counsel appearing for accused No. 1, made the following submissions.

(a) In the instant case, the prosecution rested its entire case on the evidence of P.Ws.1 to 4, out of whom P.Ws.3 and 4 turned hostile and thus their evidence have no consequence. Insofar as P.Ws.1 and 2 are concerned, the trial cour has rested its the judgment believing the evidence of these two witnesses, namely P.Ws.1 and 2, the mother and brother-in-law of the deceased and therefore their evidence has got to be scrutinised with care and caution. If the test of careful scrutiny is applied, their evidence has got to be necessarily rejected for more reasons than one.

(b) According to P.W.1, in order to take care of her two sons, namely Selvakumar and Chandrakumar, who were taking treatment, on 02.08.1996 she proceeded to the Kottar Government Hospital but, at the time of her examination before the Court, she has stated that her sons were discharged from the hospital 10 days before the occurrence and thus the evidence of P.W.1 that she had gone to the hospital on 02.08.1996, a day prior to the occurrence, is nothing but a falsehood. Added further, according to P.W.1, she came from the hospital in the night hours in order to see the burnt house which was actually set ablaze by the accused party but, it would be quite clear from her evidence that the incident of arson has taken place 1-1/2 months prior to the occurrence and hence herself, accompanied by the deceased and P.W.2, visiting the village on 02.08.1996 to see the house is nothing but another falsehood and therefore her evidence to the effect that was accompanied by the deceased has got to be rejected.

(c) Further, in the instant case, P.W.1 and her sons and P.W.2 belong to Serukol Sithanvilai and the accused party belongs to Pulipalam Kattuvilai but the occurrence has taken place at Irupichanvilai in front of the house of one Jebamani. According to prosecution, the deceased Vijayakumar went to the tea shop of one Dhas at about 4.00 a.m. to take tea and after taking tea when he was returning he was attacked by the deceased. But the tea shop owner was not examined in the case. Further, according to the prosecution, the occurrence has taken place in front of the house of one Jebamani, but the said Jebamani was not examined. If it is true, the independent witnesses could have been present but no one was examined.

(d) Learned Counsel would further submit that in the instant case, so far as the medical evidence is concerned, it also did not support the case of the prosecution. It could be seen from Ex.P-9, the postmortem certificate, semi digested food particles were found but, according to P.W.1, the deceased had not taken any food after he met her in the previous night. If to be so, the fact that semi digested food particles were found would clearly indicate that the occurrence could not have taken place in the morning hours but it should have taken place in the previous night and thus the medical evidence would also falsify the evidence of P.Ws.1 and 2 that they witnessed the occurrence.

(e) In the instant case, according to the prosecution, M.O.1, vettukathi, was recovered from accused No. 1. on 20.08.1996 but, according to P.W.9, the Doctor, M.O.1 was shown to him 10 days earlier and thus it would clearly indicate that the arrest of accused No. 1 and recording of his confessional statement and recovery of M.O.1 are all nothing but a tissue of falsehood and only an introduction to suit the case of the prosecution. Added further, learned Counsel would submit that though M.O.1 was alleged to have recovered from accused No. 1, the same was not sent for chemical analysis for the reasons best known to the investigation officer and thus the evidence with regard to arrest, confession and recovery of M.O.1 is nothing but a falsehood. Therefore, all would go to show that the prosecution has not proved the case beyond reasonable doubt and thus the whole case rested upon the evidence of P.Ws.1 and 2 ought to have been rejected by the trial court for the reasons stated above.

(f) Learned Counsel would further add that in the instant case the evidence of P.W.1 has got to be viewed with suspicion for the simple reason that P.W.1, when she gave Ex.P-1 complaint, has spoken about accused Nos. 1 to 3, the appellants herein, as the persons attacked the deceased and though she has averred that it was accused Nos. 4 to 6 who restrained the deceased, she has not mentioned the names of accused Nos. 4 to 6, but only stated that three persons whom she could identify. However, at the time of cross-examination, she has categorically deposed that accused Nos. 4 to 6 were known to her from their childhood and their fathers names are also known to her and they are neighbours. While that be so, it is not known as to why it was not felt necessary by P.W.1 to state their names at the time of giving information to the police. Therefore, non-mentioning of the names of other accused, namely accused Nos. 4 to 6, in Ex.P-1 would clearly indicate that P.W.1 could not have seen the occurrence at all. If her evidence is viewed from this point of view, her evidence should have been rejected by the trial court but only upon which the trial court based its verdict.

(g) Learned Counsel would further add that in the instant case the trial court, on the evidence adduced in respect of the entire case in which accused Nos. 1 to 6 were ranked, did not believe the evidence in so far as accused Nos. 4 to 6 and if to be so, there could not have been any impediment for the trial court to reject the evidence in respect of accused Nos. 1 to 3, but found them guilty.

(h) Learned Counsel added further that while six persons were ranked as accused and among them accused Nos. 4 to 6 were actually acquitted of all the charges, no question of application of Section 148 IPC would arise. It is the submission of the learned Counsel that in the circumstances, the appellants are entitled for an acquittal at the hands of this Court.

Learned Counsel appearing for accused Nos. 2 and 3 have also followed their arguments in the same line.

The Court heard the learned Additional Public Prosecutor appearing for the State on the above contentions. In his sincere attempt, the learned Additional Public Prosecutor put-forth all his arguments in order to sustain the judgment of the trial court.

The Court paid its anxious consideration to the submissions made on either side and also made a thorough and careful scrutiny of the available materials.

It is not the fact in controversy that one Vijayakumar, son of P.W.1, was done to death in an incident that took place at the early hours on 03.08.1996 and following the same, a report was given by P.W.1 to P.W.11, the Sub-Inspector of Police attached to respondent Police Station, who in turn registered a case and following the receipt of a copy the first information report, P.W.12, the Inspector of Police, took up the investigation and following the procedural formalities he conducted inquest on the body of the deceased in the presence of witnesses and panchayatdars and following the same, the body was subjected to postmortem by P.W.9, the doctor attached to Kuzhithurai Government Hospital, and she has given her opinion that the deceased died of shock and haemorrhage due to the cumulative effect of the injuries sustained. Apart from this, Vijayakumar died because of homicidal violence was never questioned by the appellants/accused at any stage of the proceedings. Therefore, without any impediment, it can be recorded so and accordingly done so.

In order to substantiate its case that it was these accused Nos. 1 to 3 attacked the deceased Vijayakumar at the time and place of occurrence, the prosecution marched four witnesses as P.Ws.1 to 4. It is true, P.Ws.3 and 4 have turned hostile and did not support the case of the prosecution. But, in the instant case, P.Ws.1 and 2 have given evidence supporting the prosecution case. It is also true that P.Ws.1 and 2 are close relatives of the deceased, being his mother and brother-in-law, respectively. The Court is mindful of the caution made by the principle of law that once eye-witnesses are close relatives of the deceased, their evidence must be scrutinised carefully before accepting the same. If the said test is applied, in the instant case, the Court is thoroughly satisfied that the evidence of P.W.1 and P.W.2 has got to be accepted. The contentions put-forth by the learned Counsel for the appellants, as narrated above, in the opinion of the Court, will not, in any way, shake the evidence of either P.W.1 or P.W.2.

The first contention of the learned Counsel for the appellants is that there is no evidence to show that P.W.1 went to the hospital in the previous night to see her two sons, namely Selvakumar and Chandrakumar, who were under treatment and the deceased and P.W.2 also came there and thereafter during night hours all of them were proceeding to the village to see their burnt house. This contention, in the opinion of the Court, has nothing to do with the offence in question. Whether they were all coming together or not will not in any way affect the prosecution case for the simple reason that it was a narration of the earlier and different incident. It is true that an arson has taken place 1-1/2 months prior to the occurrence in question and this fact has been clearly found mentioned in the FIR itself. P.W.1 is a rustic lady and it is true that she has stated in her evidence that in order to see the house they came there on that day. It is pertinent to point out that P.W.2 has also come to the place and merely because of the reason that in her evidence P.W.1 has stated that in the night hours, along with the deceased, she came to the village to see the house which was set ablaze, we cannot suspect her evidence because it is clearly averred in Ex.P-1 complaint itself that the arson has taken place 1-1/2 month prior to the occurrence. Therefore, as stated earlier, the contention of the learned Counsel for the appellants in this regard, will not in any way affect the prosecution case.

According to P.W.1, she, accompanied by the deceased and P.W.2, came to the house and while returning the deceased wanted to have a tea and therefore he went to the tea shop owned by one Dhas and after taking tea, as he did not come back for a long time, she went over there in search of him. The conduct of P.W.1 is quite natural, because the earlier incidents of murders and her sons being attacked by the accused party and they took treatment in the hospital would have impeled the mother to go in search of her son. According to her, when she was proceeding towards the tea shop, she found her son coming and at that time found three persons restraining her son and three persons attacking him. Now, at this juncture, it is pertinent to point out that non-examination of either the tea shop owner, who, according to the prosecution, was not an eye-witness or the house owner Jebamani, in front of whose house the occurrence was taken place, will not in any way affect the prosecution case, for the simple reason, according to the prosecution, they were not eye-witnesses to the occurrence. Hence non-examination of the persons who were not eye-witnesses cannot be commented upon.

So far as P.Ws.1 and 2 are concerned, they have seen the occurrence. Now, the comment made by the learned Counsel for the appellants is that P.W.1 clearly knew accused Nos. 4 to 6 even from their childhood and even then, at the time of giving Ex.P-1 report, she has not mentioned the names of those three accused but has merely stated three persons whom she could identify and this creates a doubt about her presence in the place of occurrence. Attractive though the argument advanced by the learned Counsel at the first instance, in the opinion of the Court, the said contention cannot stand for the reason that the person who gave Ex.P-1 complaint was the mother of the deceased and she has witnessed an occurrence in which her son was indiscriminately attacked and died instantaneously and immediately she has run to the police station to give a complaint in which she has given the names of three persons who attacked her son with weapons and has also mentioned three other persons as persons could be identified. It is true that she has not mentioned the names of the persons who are known to her but, non-mentioning of the names of those three persons cannot be a reason to reject the evidence of P.W.1 under the stated circumstances. Apart from this, the evidence of P.W.2 is concerned, he was actually went in search of the deceased and on his way he happened to see the occurrence, It is pertinent to point out that Ex.P-1 complaint has been given in the police station within a few hours from the time of occurrence and it has also reached the concerned Magistrate Court within a reasonable time with the names of three accused, who are the appellants before this Court. It is also pertinent to point out that the overt acts attributed to them have been clearly stated in Ex.P-1 and corresponding injuries are found mentioned in Ex.P-9, the postmortem certificate. Therefore, the contention that the postmortem certificate would clearly reveal that semi-digested food particles were found and hence the deceased could have taken food previously and thus the occurrence could not have taken place at the time put-forth by the prosecution cannot be accepted for the reason that the deceased proceeded to take a tea at about 4.00 a.m. and at that time what he took in the tea shop remain unknown. Therefore, from this point of view, the evidence of the eye-witnesses, who have witnessed the event, inspires the confidence of the court and it cannot be rejected.

As rightly contended by the learned Counsel for the appellants, the arrest of accused No. 1 and the alleged confessional statement given by him and recovery of M.O.1, Vettukathi, are all false for the simple reason that firstly the doctor who was examined before the court would depose that M.O.1 weapon was shown to him 10 days prior to the date of arrest, namely 20.08.1996 and apart from this, M.O.1 weapon was actually not sent to chemical analysis and no explanation was coming forth from the prosecution for not sending M.O.1 for chemical examination. Hence, that part of the case of the prosecution has got to rejected. Even rejection of that part of evidence will not in any way affect the case of the prosecution.

Further, as rightly pointed out by the learned Counsel for the appellants, when the trial court, after founding accused Nos. 1 to 3, the appellants before this Court, alone guilty and having acquitted accused Nos. 4 to 6, no question of application of Section 148 IPC would arise and it is only misapplication of law and hence the conviction and sentence imposed on the appellants u/s 148 IPC are liable to be set aside.

Under the stated circumstances, insofar as the prosecution is concerned, it has proved its case by direct evidence of P.Ws.1 and 2 and the ocular testimony of PWs.1 and 2 that the act of accused Nos. 1 to 3 in attacking the deceased and causing his instantaneous death stood corroborated by the medical evidence and thus the contentions put-forth by the learned Counsel for the appellants in that aspect do not merit acceptance and hence remained to be stated for the purpose of rejection and accordingly the Court has to sustain that part of the judgment of the trial court that it was accused Nos. 1 to 3 who attacked the deceased and caused his death.

Insofar as the acts of the accused are concerned, the Court has to necessarily differ from the view taken by the trial court. The trial court has found accused No. 1 guilty u/s 302 IPC and awarded life imprisonment and accused Nos. 2 and 3 were found guilty u/s 304(i) IPC and awarded a punishment of nine years rigorous imprisonment. The medical evidence canvassed by the prosecution before the lower court through P.W.9, the postmortem doctor and also the postmortem certificate Ex.P-9, would clearly reveal that the death has ensued as to the cumulative effect of all the injuries sustained. Under such circumstances, there is no question of making separation for the accused No. 1 that he has acted with an intention to cause the death and others without intention. At this juncture, it is required to be stated that there was an incident that took place in the previous day in which the mother and the brother of accused No. 1 were done to death and that too, according to the accused party, by the younger brother of the deceased Vijayakumar and apart from this, the fact that the mother and the brother of accused No. 1 were done to death in an incident that took place in the previous night was not disputed by the prosecution. In such circumstances, it could be easily inferred from the words used by accused No. 1

the elder brother of the person who caused the death of my mother and brother is coming; attack and kill him

that on seeing the deceased, accused Nos. 1 to 3 got suddenly provoked and they all attacked him and thus it is not the intention of the accused to cause the death of the deceased nor they have acted deliberately but, due to sudden provocation on seeing the deceased they have acted so. Apart from that, the medical opinion brought-forth through P.W.9, the postmortem doctor, is that the deceased died of shcok and haemorrhage due to the cumulative effect of the injuries sustained. Under such circumstances, the penal provision of murder for accused No. 1 cannot be applied. At the same time, in the considered opinion of the court, so far Accused Nos. 2 and 3 are concerned, the penal provision of Section 304(i) cannot be applied against them, as these accused also acted due to sudden provocation and they cumulatively attacked the deceased. Hence, the act of all the three accused would attract the penal provision of Section 304(ii) IPC and awarding five years rigorous imprisonment on each of them would meet the ends of justice.

Accordingly, the judgment of the trial court finding accused No. 1 u/s 302 IPC and accused Nos. 2 and 3 u/s 304(i) IPC and sentencing accused No. 1 to life imprisonment and awarding nine years rigorous imprisonment on accused Nos. 2 and 3 are set aside and instead all the accused are convicted u/s 304(ii) IPC and each of them are sentenced to undergo rigorous imprisonment for five years. The judgment of the trial court in finding the appellants/accused Nos. 1 to 3 guilty u/s 148 IPC and sentencing them to undergo two years rigorous imprisonment is set aside and they are acquitted of the said charge. It is represented that accused Nos. 2 and 3 are on bail. The bail bonds executed by them shall stand cancelled and the learned Sessions Judge is directed to take steps to secure their presence and commit them to jail to undergo the remaining period of sentence. The sentence already undergone by the appellants/ accused 1 to 3 shall be given set of. With the above modification in the conviction and sentence, all the three appeals are disposed of.