Subramanian vs Inspector of Police

M. Chockalingam, J.—The sole accused/appellant who faced charges for murder (two counts) and who was found guilty as per the charges

in S.C. No. 49 of 2003 on the file of the Principal Sessions Division, Thanjavur and awarded life imprisonment (two counts) which shall run

concurrently, along with a fine and default sentence, has challenged the said conviction and sentence.

Briefly, the facts of the prosecution case can be stated thus:

(a) P.W.1 is the husband of the second deceased Rajathi and the father of the first deceased Bharathy. P.W.2 is the son of P.W.1. P.Ws.1 and 2

were doing coolie work. The appellant/accused was also living nearby. The haystack of the accused was found burnt 15 days prior to the

occurrence. One of the chappels of P.W.2 was found nearby. The accused entertained suspicion over him. A panchayat was convened, where

P.W.1 tendered apology. When the panchayat was going on, the accused slapped P.W.1. Following the same, before the occurrence, the second

deceased was abusing the accused. The accused was complaining about the same to P.W.1. He has warned her that she must stop from doing so.

On 11.7.2001, the date of occurrence, at about 8.30 P.M., P.W.2 was taking food. At that time, the second deceased was also in front of the

house, while the first deceased was inside the house. The appellant/accused armed with an aruval, came there and attacked the second deceased.

On hearing the distressing cry, the first deceased came out of the house, and she was also attacked by the accused. The entire occurrence was

witnessed by P.W.2. At that time, when P.W.2 attempted to intervene, he was intimidated. The accused was running with the weapon of crime.

P.W.1 found the accused running with the weapon of crime. He rushed to the house. He was informed by P.W.2 about the incident. P.Ws.1 and 2

took both the severely injured persons to the Government Hospital, Thanjavur, where P.W.7, the Doctor, was on duty. At about 9.30 P.M., he

admitted the second deceased Rajathi and recorded her statement. The injuries that were found on her, are noted in the accident register copy,

Ex.P7. At about 9.55 P.M., he medically examined the first deceased Bharathy and declared her dead. The injuries found on her, were noted in

Ex.P6, the accident register copy. An intimation was given to the Out Post Police Station attached to the Government Hospital. P.W.13, the Head

Constable, on receiving the intimation, proceeded to the hospital and recorded the statement of P.W.1, which is marked as Ex.P1. On the strength

of Ex.P1, the report, a case came to be registered by the respondent Police Station in Crime No. 128/2001 under Sections 307 and 302 of I.P.C.

The printed First Information Report, Ex.P14, was despatched to Court.

(b) P.W.9, the Doctor, gave the further treatment to the second deceased. An intimation was given to the Inspector of Police, P.W.16, who

rushed over there. He recorded the statement of the second deceased in the presence of the Doctor, who certified that she was in a fit state of

mind to give a statement. The Doctor''s certificate is marked as Ex.P8. The case sheet of the second deceased is marked as Ex.P9. An intimation

was given to the Judicial Magistrate for the purpose of recording the dying declaration. The Judicial Magistrate No. III, Thanjavur, examined as

P.W.10, rushed to the Government Hospital and recorded the dying declaration of the second deceased at about 1.20 A.M., after being certified

that she was in a fit state of mind to give a declaration. The dying declaration of the second deceased is marked as Ex.P11.

(c) Following the same, P.W.16, the Investigating Officer, took up investigation, proceeded to the spot, made an inspection in the presence of

witnesses and prepared an observation mahazar, Ex.P2, and a rough sketch, Ex.P17. Then, he recovered the material objects including

bloodstained earth and sample earth, under a cover of mahazar. He conducted inquest on the dead body of the first deceased Bharathy in the

presence of witnesses and panchayatdars and prepared an inquest report, Ex.P19. Then, he gave a requisition to the hospital authorities for the

purpose of autopsy.

(d) P.W. 11, the Reader and Police Surgeon, Department of Forensic Medicine, Thanjavur Medical College, Thanjavur, on receipt of the

requisition, conducted autopsy on the dead body of Bharathy and found 2 external injuries. The Doctor has issued a postmortem certificate,

Ex.P12, with her opinion that the deceased would appear to have died of shock and haemorrhage due to head and neck injuries involving the vital

structures - brain and neck structures.

(e) Pending the investigation, the Investigator arrested the accused on 12.7.2001 at 12.15 P.M. in the presence of two witnesses. He volunteered

to give a confessional statement. Ex.P4 is the admissible part of the confession. Pursuant to the same, M.O.1, aruval, M.O.8, bloodstained lunghi,

and M.O.9, bloodstained shirt, were recovered under a cover of mahazar.

(f) An intimation was received from the hospital that despite the treatment, the second deceased Rajathi died at about 9.40 P.M. on 12.7.2002.

On receipt of the intimation, the case was altered to Section 302 of I.P.C., and the express report, Ex.P29, was sent to Court. Following the

same, the Investigating Officer conducted inquest on the dead body of Rajathi in the presence of witnesses and panchayatdars and prepared an

inquest report, Ex.P21. The Investigating Officer gave a requisition to the hospital for the purpose of autopsy.

(g) P.W.12, the Tutor in Forensic Medicine, Thanjavur Medical College, Thanjavur, on receipt of the requisition, conducted autopsy on the dead

body of Rajathi and found 11 injuries. The Doctor has given a postmortem certificate, Ex.P13, with his opinion that the deceased would appear to

have died of multiple cut injuries involving vital organs, brain and lung.

(h) All the material objects recovered from the place of occurrence and from the dead body, and M.Os.1, 8 and 9 recovered from the accused

pursuant to the confession, were subjected to chemical analysis. The Chemical Analyst''s report, Ex.P24, and the Serologist''s report, Ex.P25,

were received by the Court. On completion of investigation, the Investigator filed the final report.

The case was committed to Court of Session, and necessary charges were framed. In order to substantiate the charges, the prosecution

marched 16 witnesses and also relied on 29 exhibits and 17 material objects. On completion of the evidence on the side of the prosecution, the

accused was 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. One Muniandi was examined as Court Witness. On completion of the evidence, the trial

Court gave an opportunity to both sides to advance their arguments. The trial Court after scrutiny of the materials available and consideration of the

submissions made, took the view that the prosecution has proved the case beyond reasonable doubt, found him guilty and awarded life

imprisonment (two counts) along with fine and default sentence. Hence, this appeal at the instance of the appellant/accused.

Advancing his arguments on behalf of the appellant, the learned Counsel Mr. A. Padmanabhan raised two points. Firstly, P.W.1 is the husband

of the second deceased and father of the first deceased. P.W.2 is the son of the second deceased and P.W.1 also. Both of them are closely

related. Even as per the prosecution case, when a panchayat was convened 15 days before the occurrence, it was the accused who slapped

P.W.1, and despite that, he tendered apology. Under the circumstances, there could not have been any grudge in the mind of the accused to do an

act as put forth by the prosecution. In the instant case, if at all, it could have been only for the prosecution witnesses and not for the accused. That

apart, there was no motive at all to do such a heinous crime. So far as P.Ws.1 and 2 are concerned, they could not have seen the occurrence at

all. Even as per the case of the prosecution, P.W.1 was not at all available at the place and time of occurrence. According to him, when he was

returning from work, he found the accused running with an aruval, and he came to the house, and he was informed by his son P.W.1 about the

occurrence. Immediately after the occurrence, P.Ws.1 and 2 have taken both the first deceased Bharathy and the second deceased Rajathi to the

Government Hospital, Thanjavur, where P.W.7 was the Doctor, who declared the first deceased dead; but, he has recorded the statement of

P.W.1, wherein he has mentioned as unknown person. Had it been true that P.W.2 had already informed about the crime and P.W.1 has seen the

accused running from the place of occurrence with the weapon of crime, one would expect him to mention in his statement as known person; but

he has mentioned as unknown person. Thus, it would be clear that P.W.1 could not have seen the accused running from the place of occurrence,

nor he could have been informed by P.W.2 as to the occurrence.

Added further the learned Counsel that in the instant case, even P.W.2 also could not have seen the occurrence; that even as per the dying

declaration alleged to have been given by the second deceased to the Judicial Magistrate, she was lying with her children in front of the house; but,

according to P.W.2, he was taking food, and at that time, his mother, the second deceased, was standing, and the accused came with the aruval

and attacked her; that if both put together, the evidence could not be reconciled; that under the circumstances, the evidence of P.W.2 that he was

an eyewitness to the occurrence was nothing but an introduction; that all would go to show that both these witnesses could not have seen the

occurrence at all; and that after seeing the dead bodies, in view of the grudge entertained in their mind, the accused has been roped in.

The second point raised by the learned Counsel is that in the instant case, in the earliest statement given by the second deceased to the Doctor,

she has not spoken that it was the act done by the accused; that had it been true, she would have mentioned as known person; but, she has not

stated so; that this would clearly indicate that at that time, the person who committed the offence, was not known to her; that the dying declaration,

according to the prosecution, was one given by the second deceased to P.W.10, the Judicial Magistrate, at about 1.20 A.M.; that it is to be

pointed out that it is an outcome of the tutoring; that this would be quite clear from the fact that even the Doctor in whose presence it was

recorded, has clearly pointed out that he did not know who were all other relations present; that in the instant case, it is further to be pointed out

that as far as the attack made on Bharathy is concerned, the second deceased could not say by whom it was done or whether it has actually taken

place; but, she has stated that she did not know whether the other person was attacked or not; and that this would also indicate that she could not

have signed the dying declaration.

Further, the learned Counsel would add that when the second deceased gave the statement to the Inspector of Police, P.W.16, at 1.00 A.M.,

she has stated that her daughter Bharathy was attacked by the accused; that had it been true, there was no occasion for her to state in the dying

declaration given to the Magistrate and recorded by him, that she did not know who attacked Bharathy; that these are all the discrepancies found

in all these three statements, the first one to the Doctor, the second one to the Inspector of Police, P.W.16, and the third one to the Judicial

Magistrate, P.W.10; that all would go to show that it was a clear case of tutoring; that according to the Doctor, she was conscious enough; that if

to be so, on the basis of the dying declaration, which is thoroughly shrouded with suspicion attendant over it, as narrated above, the Court has to

hold that it cannot be a piece of evidence to be relied upon to sustain a conviction; that all these aspects have not been considered by the trial

Court, and hence, the appellant is entitled for acquittal in the hands of this Court.

The Court heard the learned Additional Public Prosecutor on the above contentions, paid its anxious consideration on the rival submissions

made and made a thorough scrutiny of the available materials.

It is not in controversy that the second deceased Rajathi, the wife of P.W.1, following an incident that took place in front of her house, was

taken to Thanjavur Medical College Hospital, where she was admitted by P.W.7, the Doctor, and despite treatment, she died on 12.7.2001. An

inquest was made by the Investigating Officer, P.W.16, in the presence of witnesses and panchayatdars, during which he prepared a report.

Thereafter, the dead body of Rajathi was subjected to postmortem by P.W.12, the Doctor. He has also opined in the course of the postmortem

certificate and also in the evidence before the Court that she died out of multiple cut injuries.

As far as the first deceased Bharathy was concerned, immediately after the incident, she was taken to the same Thanjavur Medical College

Hospital, where she was declared dead by the same Doctor. Following the inquest made by the Investigating Officer, the dead body was

subjected to postmortem by P.,W.11, the Doctor, and she has given a postmortem certificate wherein she opined that Bharathy died of shock and

haemorrhage due to the injuries sustained.

Therefore, the fact that both the first deceased and the second deceased died out of homicidal violence stands actually proved by the

prosecution. That apart, this fact that they died on account of homicidal violence was never questioned by the appellant/accused at any stage of the

proceedings. Hence, without any hesitation, it is recorded so.

In order to substantiate the fact that it was the accused who armed with an aruval, M.O.1, at the time of the occurrence, came over to the

house of P.W.1; that when the first and the second deceased were available along with P.W.2, he first gave a cut to the second deceased; that on

hearing the distressing cry, when the first deceased Bharathy came out of the house, she was also attacked by him; and that he ran away from the

place of occurrence with the weapon of crime, the prosecution has examined P.W.2, the son of P.W.1 and the second deceased. The prosecution

has examined P.W.1 also to the fact that he saw the accused running from the place of occurrence with the weapon of crime. The contention put

forth by the learned Counsel for the appellant is that the evidence of these two witnesses cannot be accepted for two reasons; that firstly, they are

the close relations to both the deceased; and that secondly, they could not have been in the place of occurrence. These two contentions have got

to be rejected for more reasons than one. Firstly, it is a well settled proposition of law that merely because of the relationship of the eyewitnesses

to the deceased person, their evidence cannot be discarded; but, it must be tested with care and caution. This Court is mindful of the settled

proposition of law. Despite the exercise of that test, this Court is of the considered opinion that it inspires the confidence of the Court.

In the case on hand, before 15 days, there was an incident in which the haystack of the accused was burnt, and there was a panchayat

convened on suspicion that it was P.W.2, who was responsible for the same. At the time of panchayat, P.W.1 tendered apology, and despite the

same, it was the accused who gave him slaps. Following the same, in between the panchayat and the present incident, there were occasions when

the second deceased Rajathi was abusing the accused. This was the reason which was actually wavering the mind of the accused. It was also

informed to P.W.1 to stop his wife from doing so. According to P.W.2, at the time of occurrence, he was very well available, and he was taking

food in front of the house, and chimney was burning, and his mother, the second deceased, was also in front of the house, and the sister, the first

deceased, was inside the house, and at that time, the accused came with the aruval and attacked his mother, and he was in the grip of fear, and he

was attempted to go to the rescue of his mother; but, he was intimidated by the accused, and on hearing the distressing cry, the first deceased

came out, and she was also attacked. Thus, it would be very clear that he has given a graphic narration of the incident. Despite full cross-

examination, his evidence remained unshaken. The way in which the evidence has been adduced, would go to show that he has given the entire

graphic narration of the incident. That apart, surrounding circumstances are pointing to the fact that a person without being an eyewitness to such

an occurrence, cannot give such a narration of the occurrence. Thus, his evidence inspired the confidence of the Court, as rightly pointed out by the

Court below.

As far as P.W.1 was concerned, it is not his evidence that he actually saw the occurrence; but, he has deposed that he saw the accused

running from the place of occurrence with the weapon of crime. Had he been a planted witness, there was no need for him to state so. He would

have been added as eyewitness to the occurrence, but not done so. It would speak of the fairness of the prosecution at that stage.

Now, the contentions raised by the learned Counsel for the appellant are that according to the prosecution, P.W.1 along with P.W.2 took both

the injured persons Rajathi and Bharathy, to the hospital; that when P.W.1 gave a statement to P.W.7, the Doctor, he has mentioned that he did

not know who attacked Bharathy and caused her death; that it is also mentioned as unknown person in the accident register copy, and hence,

P.W.1 could not have been informed by P.W.2 about the occurrence. At this juncture, it is to be pointed out that P.W.1 was not an eyewitness;

but, it was only P.W.2. It remains to be stated that P.W.2 did not make any statement to the Doctor who declared Bharathy dead or admitted the

other person; but, it was the statement made by P.W.1. Therefore, the statement of P.W.1 to the Doctor is of no consequence at that stage.

Apart from the above, the learned Counsel pointed out the discrepancies found in the three statements, first one made to the Doctor by the

second deceased at the time of admission, second one to P.W.16, the Inspector of Police, at 1.00 A.M., and the third one to the Judicial

Magistrate, P.W.10, at 1.20 A.M. This Court is of the considered opinion that these discrepancies were natural for the simple reason that it was a

dying declaration given by her, and apart from that, what would have been the frame of mind of a person under the stated circumstance must be

taken into account. She was a lady, who was attacked at night hours. She was taken to the hospital, and she has given the statement to the Doctor,

from which it is pertinent to point out that she has stated that she was attacked at the place and time. It is true that she has not mentioned known

person; but, at the same time, it is to be pointed out that unknown person is also not mentioned, which would be quite clear that about the person,

she has not stated anything.

The next one was the statement given to the Inspector of Police at about 1.00 A.M. The Doctor has certified that she was conscious enough.

In the presence of the Doctor, P.W.7, the Investigating Officer, P.W.16, has recorded the statement, wherein she has clearly pointed out that she

was attacked by the accused at the place and time as put forth by the prosecution.

The third statement namely the dying declaration, was also made to the Judicial Magistrate within a short interval of 20 minutes i.e., at 1.20

A.M. The way in which the declaration has been given by the declarer will be pointing to the truth of the same. She has clearly pointed out that it

was the accused who cut her, and subsequently, she did not know whether anybody was cut. Therefore, the manner in which she has given the

declaration would clearly reveal that she has spoken the truth. In the instant case, there was no introduction. This would be indicative of the fact

that there was no tutoring that would have taken place in between, and thus, taking into consideration the totality of the circumstances, the evidence

of P.W.2 who is an eyewitness, and P.W.1 who saw the accused running from the place of occurrence with the weapon of crime, and all the

statements made by the second deceased as to the occurrence, wherein she has clearly indicated that it was the accused who attacked her, it can

be well stated that there is nothing to doubt the evidence put forth by the prosecution.

Yet another circumstance is the medical evidence which stood in full corroboration of the ocular testimony, and further, M.O.1 has also been

recovered. A witness has been examined, and the evidence in that regard remained intact. All put together would be sufficient to hold that the

prosecution has proved the case beyond reasonable doubt.

The contentions put forth by the learned Counsel for the appellant though attractive at the first instance, cannot be accepted because the

prosecution has brought home the guilt of the accused by sufficient evidence. In such circumstances, this Court has to disagree with the contentions

put forth by the learned Counsel for the appellant. Hence, the lower Court was perfectly correct in recording a finding that it was the accused who

committed the murder of both the persons, and that too, at 8.30 P.M., he came with the aruval and attacked them. The act of the accused is

nothing but intentional, and the same would fall within the ambit of murder. The finding recorded by the lower Court, has got to be sustained. As

regards the punishment given by the trial Court, the same need not be interfered with.

For the foregoing reasons, this criminal appeal must fail and fails. Accordingly, the same is dismissed.