Madras High Court
Periakutty @ Kutty @ Kalyanasundaram ... vs Inspector Of Police on 9 November, 2005
JUDGMENT R. Balasubramanian,J.
Page 1996
1. Appellants, two in number, arrayed as A-1 and A-2, were tried in S.C. No. 373 of 2001 on the file of I Additional Sessions Judge, Chennai, for the following offences:
Section 302 r/w 34 I.P.C. :: A-1 and A-2 Section 324 I.P.C. :: A-1 Section 506(ii) I.P.C. :: A-1 and A-2 The learned Sessions Judge found the accused guilty of the offence under Section 302 r/w 34 I.P.C. and sentenced each one of them to imprisonment for life together with a fine of Rs. 1000/- carrying a default sentence and for the offence under Section 506(ii) I.P.C., A-1 and A-2 were sentenced to undergo rigorous imprisonment for 3 years. A-1, who was also convicted under Section 324 I.P.C., and sentenced to undergo rigorous imprisonment for 3 years. The sentences imposed were directed to run concurrently. The correctness of the above judgment is in challenge in this appeal. Heard Mr.R. Sankarasubbbu, learned counsel appearing for A-1 and Mr. A.K.S. Thahir, learned counsel for A-2 . The State is defended by Mr.E. Raja, learned Additional Public Prosecutor.
2. The case of the prosecution is that on the evening of 25.7.97, the accused, put up for trial, along with another accused, by name, Chinnakutty - who died prior to the trial, challenged the deceased, by name, Mathi @ Mathisudan in his house to show his muscle power in the context of the accused having been assaulted by him in an occurrence that took place previously. So saying, Chinnakutty, (accused - since deceased) cut on the head of Mathi with a veecharuval followed by A-2 cutting on the left knee of Mathi with a veecharuval while A-1 cut on the right hand wrist and right shoulder of Mathi with a veecharuval. P.W.1, wife of Mathi, intervened and she was also assaulted by A-1. After the occurrence, when public gathered around the place, the surviving accused and the deceased accused made good their escape by criminally intimidating the public.
3. P.W.1 is an injured eye-witness. However, she turned hostile. Her evidence recorded till she was treated as hostile is that around 7.30p.m., when she was in a room inside her house, she heard the cry of her husband, which made her to come out; when she came out, she found a crowd and saw her husband lying in a pool of blood. She would also depose that when she intervened when her husband was being assaulted by stretching her two Page 1997 hands, she received cut injuries on her hands. She disowned the complaint given by her and therefore, she was treated as hostile. P.W.2, the brother of the deceased, is examined as an eye-witness to the occurrence. He would state that at about 7p.m. on 25.7.97, when he returned home, he found his brother lying with cut injuries and took him to Stanley Hospital for treatment. He would depose that it is only Chinnakutty (accused-since deceased) and Periakutty, who cut his brother. He identified Periakutty (A-1) in Court and stated that the other person is not present in Court. He also deposed that he does not know the name of the third person, who attacked his brother and that he is also not present in Court. P.W.3 is a neighbour of the deceased, P.W.s 1 and 2. He was treated as hostile. His evidence is that he transported Mathi, the victim in this case, to the hospital. P.W.4, the sister of the deceased, is examined as an eye-witness to the occurrence. She would state that she was in the house of the deceased at 7p.m. on 25.7.97 along with P.W.s 1, 2 and other relatives. At that time, three persons came there in a hurry and they were Chinnakutty (accused-since deceased), A-1 and A-2. On seeing them, the deceased asked them as to why they have come there. According to her, the accused stated that as the deceased had beat them, four days earlier, in front of a wine shop, they have come to finish him off. P.W.4's evidence shows that the deceased had already told them that there was a quarrel earlier near a wine shop. To a question put by the Court, she answered that among the three, A-1 and A-2 present in Court, are the accused. She would state that when the deceased stood up, Chinnakutty (accused-since deceased) cut on his head; A-2 cut on his knee and when P.W.1 intervened, she was also assaulted by Chinnakutty and A-1. Her further evidence is that A-1 came from behind and cut on the neck of the deceased and thereafter, P.W.s 2 and 3 took injured Mathi to the hospital.
4. P.W.12 is the Sub-Inspector of Police in the investigating Police Station. On 25.7.97, at 8p.m., P.W.1 appeared before him and informed that her husband had been assaulted by Chinnakutty (accused-since deceased) and A-1 around 7.30p.m., just opposite to her house. That complaint is Ex-P17, which he registered in Crime No. 1159/97 for offences under Sections 307 and 324 I.P.C. Ex-P18 is the printed First Information Report prepared by him. Before proceeding to the scene of occurrence, he sent P.W.1 with a police memo to the Government Hospital for treatment. On reaching the scene of occurrence, he prepared a rough sketch, Ex-P19, in the presence of P.W.5 and another. He also prepared the Observation Mahazar, Ex-P20. From the scene of occurrence, he recovered blood-stained cement flooring material, M.O.1 and sample cement flooring material, M.O.2, under a mahazar. Then, he handed over the material records to the Investigating Officer for further investigation.
5. P.W.13 is the Investigating Officer, who took up further investigation in the crime. On receipt of death intimation about the death of Mathi, at 10.30p.m. on 25.7.97, he altered the section of offence into one under Section 302 I.P.C. and prepared the altered First Information Report, Ex-P21. He sent the material records to the Court as well as to the higher officials. He went to the scene of occurrence, where he examined P.W.s 2, 3, 5 and others and recorded their statements. On 26.7.97, from 8 a.m. till 10a.m., he Page 1998 conducted inquest over the dead body of Mathi in Government Stanley Hospital in the presence of panchayatars and P.W.s, 1 and 4. Ex-P25 is the inquest report. At the time of inquest, P.W.13, by examining P.W.s 1, 4 and others, recorded their statements. Then, he sent a requisition to the hospital through P.W.11, a police constable, for conducting postmortem. He examined P.W.8, the doctor, who treated P.W.1 and recorded his statement. He went to the scene of occurrence once again and examined further witnesses and recorded their statements. P.W.11 produced before him the blood-stained personal wearing apparel of the deceased after postmortem, which was recovered under Form 95. On prior information, at 3.30p.m., on 27.7.97, he arrested A-1 and A-2 in the presence of P.W.s 6 and 7 and examined them. At that time, A-1 gave a confession statement, the admissible portion of which is Ex-P23 and A-2 also gave a confession statement, the admissible portion of which is Ex-P22. Pursuant to Ex-P23, M.O.s 4 and 5 came to be recovered. M.O.6 is the weapon of offence recovered at the instance of A-2. The recovery mahazar is Ex-P24. The Investigating Officer sent A-1 and A-2 to Government Stanley Hospital for treatment. He examined further witnesses and recorded their statements.
6. P.W.5 witnessed the recovery of M.O.s 1 and 2 under Ex-P2. He also witnessed the preparation of rough sketch. P.W.s 6 and 7, examined to prove the arrest of the accused; their examination and recording their confession statements, turned hostile. P.W.8 is the Casualty Medical Officer in Government Stanley Hospital, Chennai. At 00.15 hours, on the intervening night of 25.7.97/26.7.97, P.W.1 was brought before him by a police constable for treatment of injuries stated to have been sustained by her at 7.30.p.m. on 25.7.97 at the hands of known persons by the use of knife. On examining her, the doctor noticed a slicing injury on her right palm of 8 cm and the other measuring 3 cm and another slicing injury on her left thumb of 3 cm. Suturing was done. Ex-P9 is the accident register issued by P.W.8. P.W.1 was treated as an out-patient. At about 9.50p.m. on 25.7.97, Mathi, the deceased in this case, was brought before him by P.W.3. The doctor was informed that the victim died due to injury caused by a sharp weapon at 7p.m. in Moolakkadai. Ex-P10 is the accident register and Ex-P11 is the death intimation issued by him.
7. P.W.9 is the Medical Officer, who did postmortem on the dead body, which commenced at 12.45p.m. on 26.7.97. During postmortem, he found various symptoms as noted in Ex-P12, the postmortem report. The doctor is of the opinion that the deceased would appear to have died of shock due to severance of spinal cord. Ex-P13 is the requisition given by the Inspector of Police for conducting postmortem. Ex-P14 is the toxicological report. (Since Ex-P12 is in English, we are not restating the symptoms noted therein once again in this judgment)
8. P.W.10 is the Casualty Medical Officer in Government Stanley Hospital, Chennai. At 8.30p.m. on 27.7.97, A-2 was brought before him by a police constable. A-2 told him that at 7.30p.m. on 25.7.97, he was injured by a metal plate, when he was trying to escape after committing a murder. He also stated that he suffered the injury at a place called Moolakkadai. On examining him, P.W.10 found a sutured wound over right Page 1999 ankle measuring 5 cm x 1/4 cm. Ex-P15 is the accident register issued by P.W.10. On the same day, at about 8.15p.m., A-1 was produced before him by a police constable. On examining him, the doctor found a partially healed wound measuring 4 cm x 1/4 cm x 1/4 cm. Ex-P16 is the accident register. The doctor was informed by A-1 that the injury was on account of an assault by 10 known persons near a wine shop in Moolakkadai at 9p.m. on 23.7.97. P.W.11 is the police constable, who was present during postmortem. After postmortem, he handed over the dead body to the relatives after removing M.O.3, the personal wearing apparel of the deceased, which he handed over to the Investigating Officer.
9. P.W.13 continued the investigation. On 28.7.97, he sent the arrested accused for judicial remand. He caused photographs of the scene of occurrence to be taken. M.O.7 series are the photographs and negatives. After completing the investigation, he filed the final report in Court against the accused on 6.11.97 for offences under Sections 302, 324 and 506(ii) I.P.C.
10. When the accused were questioned under Section 313 Cr.P.C. on the basis of incriminating materials appearing against each one of them, they denied each and every circumstance put up against them as false and contrary to facts. They denied their involvement. Neither documentary nor oral evidence was brought before Court at their instance.
11. Mr.R. Sankarasubbu, learned counsel appearing for the first appellant/A-1 would submit that there is a grave doubt regarding the place where the occurrence is shown to have taken place. He took pains to point out that in Exs-P10 and P15, the accident registers issued for Mathi, the deceased and A-2 respectively, the place where each one of them came to be assaulted is shown as Moolakkadai whereas the charge against the accused, as could be seen from the evidence placed before Court, proceeds on the basis that the occurrence took place opposite to the residential premises bearing No.8, R.T. Arasu Street, Annai Anjugam Nagar, Erukkancherry, Chennai. Therefore, there is a change in the place of occurrence as could be seen from the oral evidence placed before Court when compared to Exs-P10 and P15. When there is a doubt, that too, a genuine doubt about the scene of occurrence, in the prosecution case itself, then the submission is that the entire case of the prosecution must be disbelieved since, according to the counsel, if the occurrence had taken place in Moolakkadai, which is far away from the scene of occurrence, then none of the witnesses would have seen the occurrence. He would further submit that P.W.1, the injured eye-witness and P.W.3, another eye-witness turned hostile and the Court, is therefore, left only with the evidence of P.W.s 2 and 4. According to the counsel, if the evidence of P.W.2 is read as a whole, it does not show that he is an eye-witness to the occurrence. P.W.4 also came to be treated as hostile. The evidence in chief-examination as well as in cross-examination form part of substantive evidence. The Court must read the evidence as a whole and cannot take a portion of the evidence alone in favour of the State to come to a conclusion. Therefore, if the evidence of P.W.4 in cross-examination is taken into account, then it would show that P.W.4 is not an eye-witness to the occurrence. If P.W.4's evidence is excluded and P.W.2's evidence is not taken as an evidence of an eye-witness, then there is no legal evidence at all against the first accused. Page 2000 On the above grounds, the learned counsel appearing for A-1 invites this Court to disbelieve the entire prosecution case and acquit the first accused.
12. Mr.A.K.S. Thahir, learned counsel for the second appellant/ A-2 would submit that assuming that the entire prosecution case stands established, even then, the evidence does not show that A-2 shared the common intention with the other accused in committing the crime. For this purpose, the learned counsel states that the Court has to look at various established circumstances to find out whether the second accused had shared the common intention with the other accused to kill the deceased. In this context, the learned counsel would elaborate by saying that admittedly, A-2 is not shown to have had any enmity, like the other accused, against the deceased. When such enmity is not there, then it cannot be said that A-2 had a common intention to kill the victim in this case. The learned counsel would further add that from the very fact that A-2 had caused an injury only on the knee of the deceased, which, by itself, did not prove fatal (as the fatal injury, namely, injury No.7, is shown to have been caused by A-1), it cannot be said by any stretch of imagination that A-2 shared the common intention with the other accused in murdering the victim in this case. We heard the learned Additional Public Prosecutor on the above contentions.
13. We have examined the entire case very carefully. The fact that Mathi @ Mathisudan died due to homicidal violence stands established beyond all reasonable doubts. P.W.9 is the doctor, who did postmortem and Ex-P12 is the postmortem report. The medical evidence establishes beyond doubt that Mathi @ Mathisudan died due to homicidal violence. The defence has also not disputed this fact. Therefore, we have no difficulty at all in holding that Mathi @ Mathisudan was done to death due to homicidal violence.
14. As already stated, since the accused are denying their involvement in the crime, the Court has to sift the entire evidence to find out the truth. It is true that P.W.1, the injured eye-witness turned hostile. She is none else than the wife of the deceased. She was treated as hostile on the day when she was examined in chief itself. However, her evidence recorded, till she was treated as hostile, shows beyond doubt that the occurrence took place just opposite to her house and that she also sustained injuries at the time of occurrence. It is her further evidence that her husband was found lying in a pool of blood outside her house. The defence have not cross-examined her at all. From the above evidence of P.W.1, we are of the view that this Court can definitely hold that the said evidence establishes beyond doubt the place of occurrence. Next, we consider the evidence of P.W.2. It is no doubt true that he has not stated clearly that he saw his brother, namely, Mathi @ Mathisudan, being cut by Chinnakutty (accused-since deceased), Periakutty and another unknown person. However, his evidence in chief-examination shows that it is only Chinnakutty (accused-since deceased), A-1 and the other unknown person, who are the culprits. His evidence also shows that the place of occurrence is opposite to the house of the deceased. A perusal of his evidence in cross-examination shows that he witnessed the occurrence from a distance of 15 feet. He would also state that the moment, Mathi, the deceased, was cut, he fell down and that when P.W.1 intervened, she also sustained injuries. He Page 2001 would further state that he and P.W.3 took injured Mathi to the hospital. There is no material available in the evidence of P.W.2 in his cross-examination to even infer that he could not have seen the occurrence. Therefore, reading the evidence of P.W.2, both in his chief-examination and in his cross-examination, as a whole, we are in a position to persuade ourselves that his evidence can be taken as the evidence of an eye-witness since, in sum and substance, his evidence establishes the fact that Chinnakutty (accused-since deceased), Periakutty (A-1) and another person, whom he does not know, are the culprits.
15. P.W.3 turned hostile. However, his evidence recorded till he was treated as hostile shows that the occurrence took place next to his house. The place of occurrence is shown as opposite to the house bearing No.8, R.T. Arasu Street, Annai Anjugam Nagar, Erukkancherry, Chennai while P.W.3 is residing at No.9, R.T. Arasu Street, Annai Anjugam Nagar, Erukkancherry. The defence had not cross-examined him at all. Therefore, to that extent, namely, as to where exactly the occurrence took place, the evidence of P.W.3 is definitely useful to the State. P.W.4, as already stated, is an eye-witness to the occurrence. In her chief-examination, on 19.7.2002, she has given a detailed description as to how the occurrence took place. She would state that A-1 and A-2, besides Chinnakutty (accused-since deceased) came and committed the murder. She is also certain in her evidence that among the three, A-1 and A-2 are present in Court. As far as the sequence of events is concerned, she has stated that when her brother stood up, Chinnakutty(accused-since deceased) cut on his head with a veecharuval followed by A-2 cutting on his leg during which time, P.W.1 intervened and she was also attacked by Chinnakutty and A-1. Her evidence further shows that A-1 came from behind and cut on the neck of Mathi and that the deceased immediately fell down. Therefore, the evidence of P.W.4 in her chief-examination, recorded on 19.7.2002, is, certain about the involvement of the accused in causing fatal injuries to Mathi as well as causing injuries to P.W.1. This witness was cross-examined on the same day and we find that no material worth mentioning has been elicited in her evidence in cross-examination to discredit her evidence in chief-examination. We do find that at the instance of the accused, she was recalled for further cross-examination and when she was so examined on 24.3.2003, almost after 8 months, she disowned the case of the prosecution and therefore, she was treated as hostile. At that stage, the State counsel re-examined her and in the said re-examination, in more than one place, she had categorically stated that whatever she deposed, when she was examined in chief on 19.7.2002, is true and correct.
16. The learned counsel for A-1, while advancing his arguments, relied on the stray answers given by P.W.4 in her further re-examination to contend that if the evidence of P.W.4 is read as a whole, namely, her evidence in chief-examination and cross-examination; her further cross-examination at the instance of the accused and further re-examination by the State, it is clear that P.W.4 could not have been an eye-witness to the occurrence. We extract hereunder one of the stray answers given by her during her further re-examination by the State:
Page 2002 Q: Are you giving evidence as an eye-witness?
A: No. my evidence is on details given by my sister-in-law (P.W.1).
It must be noticed that when she was cross-examined once again by the defence counsel, after her further examination by the State counsel, P.W.4 gave the following answers:
"I came to Court for my first examination on receipt of summons; the police did not bring me; it is not correct to say that I deposed as told by the police and I deposed whatever my sister-in-law told me."
It is a settled position in law, as on date, that if a witness turns hostile, the Court need not close its eyes to the entirety of the evidence of the hostile witness and the Court has a right to probe further and find out whether there is any legal material, which can be taken into account. In the judgment of the Supreme Court reported in 1991 SCC Crl. Pg.916, an occasion had arisen to decide as to whether once a witness is treated as hostile and cross examined by the State, should the evidence of such witness be completely exonerated from consideration? The facts in that case in the relevant context is that the evidence of P.Ws.3 and 4 were rejected by the trial court because they were declared as hostile, since they refused to identify the culprits as the assailants of the deceased. Following the earlier judgment of that court (Bhagwan Singh Vs. State of Haryana); (Rabindra Kumar Dey Vs. State of Orissa) and (Syad Akbar Vs. State of Karnataka), the Supreme Court went on to lay down the law as hereunder:
"that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examine him. The evidence of such witnesses cannot be accepted to the extent their version is found to be dependable on a careful scrutiny thereof. In the present case the evidence of the aforesaid two eye witnesses was challenged by the prosecution in cross examination because they refused to name the accused in the dock as the assailants of the deceased. We are in agreement with the submission of the learned counsel for the State that the trial court made no effort to scrutinise the evidence of these two witnesses even in regard to the factum of the incident."
In this case, as stated earlier, eight months after she was examined in chief as well as in cross, she was recalled and at that time only, she was treated as hostile. Though she disowned the case of the prosecution when she was cross-examined by the defence counsel, yet, when further cross-examined by the State, she, in fact, affirmed that whatever she deposed in her evidence in chief-examination, recorded earlier, on 19.7.2002, is nothing but truth. However, considering the answer given by her on her re-call that she deposed on the basis of what was told to her by her sister-in-law, Page 2003 the Court has a duty to find out where exactly lies the truth. The Court can safely presume that during the time that had elapsed between the recording of the evidence of P.W.4 on the first occasion, namely, 19.7.2002 and her further cross-examination on 24.3.2003, after she was recalled, much water would have flown under the bridge and it is not possible to totally ignore the chance of the witness being brought under terror or panic. Whatever it may be, proving that she is worthy of a human being to be in existence, she came back very strongly in favour of the State in the further re-examination done by the State counsel that whatever she deposed in her evidence in chief is true. Under these circumstances, we are not in a position to agree with the submission made by the learned counsel for A-1 that the evidence of P.W.4 is hostile in nature and therefore, it cannot be taken into account at all. On the other hand, the sum and substance of the oral evidence of P.W.4, undoubtedly, implicates the accused put up for trial and the deceased accused as the persons, who are responsible for inflicting various injuries on Mathi, the deceased, besides A-1 causing injuries to P.W.1.
17. An attempt is made, by cross-examining P.W.4 as well as P.W.13, the Investigating Officer, to show that P.W.4, at all times, was not living at the scene of occurrence, but was living elsewhere, far away from the scene of occurrence. But, the evidence of P.W.s 4 and 13 has stood the test of cross-examination. The evidence of P.W.4 leaves no room at all to doubt her presence in the house of P.W.1 on the date of occurrence. She is not a stranger, but she is the sister of the deceased. Therefore, her presence at the scene of occurrence, for the reasons stated, cannot be doubted and moreover, there is nothing unusual in her being present in the house of the deceased. P.W.13 had examined P.W.4 at the time of inquest, which took place between 8a.m. and 10a.m.on 26.7.97. In Ex-P17, there is a mention by P.W.1 that her sisters-in-law were present in the house at the time of occurrence. The printed First Information Report had reached the Court even before inquest. Hence, the presence of P.W.4 at the scene of occurrence stands established beyond the pale of controversy. Another attempt is also made by the defence to establish that P.W.4 did not know the identity of the accused prior to the occurrence and therefore, her evidence about the involvement of the accused in the crime cannot be believed. The occurrence was not over in a trice and it had taken its own time. It is not the case of the defence that there was no light at all at the scene of occurrence. The ability to identify a person or an assailant depends upon the perceiving capacity of an individual. P.W.4 had enough time to observe the features of the accused, when the occurrence was going on. Though P.W.4 was cross-examined on the line that she did not know the accused earlier, yet, in view of the overwhelming material available in her evidence and its intrinsic quality of reliability, the argument advanced by the learned counsel for A-1 that P.W.4's evidence that the accused alone were involved in the incident, having regard to the fact that she had not seen them earlier, deserves to be rejected.
18. It is no doubt true that in Ex-P10, the accident register for Mathi, the deceased and Ex-P15, the accident register for A-2, it is shown that each one of them came to be assaulted in Moolakkadai. In Ex-P15, it is shown that A-2 Page 2004 sustained an injury in Moolakkadai at 7.30p.m. on 25.7.97. In Ex-P10, it is shown that Mathi, the deceased, was attacked in Moolakkadai at 7.15p.m. on 25.7.97. Ex-P9 is the accident register for P.W.1, in which, it is stated that P.W.1 sustained injuries at Erukkancherry, around 7.30p.m., at the hands of known persons. Therefore, in Ex-P9, the place of occurrence is mentioned as Erukkancherry whereas in Exs-P10 and P15, the place of occurrence is shown as Moolakkadai. Ex-P16 relates to the injury found on A-1. The Investigating Officer has admitted in his evidence that A-1 came to sustain the injury two days prior to the date of occurrence near a wine shop in Moolakkadai and therefore, Ex-P16 would have no evidentiary value to doubt the place of occurrence, projected by the prosecution before the Court now. In Exs-P10 and P15, the place of assault is shown as Moolakkadai while Ex-P9 shows Erukkancherry as the place of assault. Further, the charge and the oral evidence shows that the occurrence took place just opposite to the house of P.W.1. In this context, we have already referred to the oral evidence of P.W.1 till she was treated as hostile; the oral evidence of P.W.2 and the oral evidence of P.W.3, till he was treated hostile, which consistently and uniformly fixes the place of incident as opposite to the house of the deceased himself. P.W.4's evidence is also to the effect that the occurrence took place just opposite to the house of the deceased. Having regard to the totality of oral evidence placed before Court and the contents of Ex-P9, the accident register for P.W.1, we are not impressed with the entries found in Exs-P10 and P15 that the occurrence in which Mathi, the deceased, came to sustain injuries, did not occur at the place alleged by the prosecution and we have no difficulty at all to hold that the prosecution has definitely established the place of occurrence as the place just opposite to the house of the deceased.
19. Let us now apply our mind as to whether the complaint given by P.W.1 is proved in accordance with law. P.W.1 is treated as hostile since she did not give evidence as to how the fatal attack had come to be given and at whose hands she came to sustain the injuries. At the end of her evidence in chief, she would state that when she was in the hospital, she was examined and that she did not remember what she told at that time. She would also state that, in a paper already written, she signed and she did not know whether the police wrote it or anybody else wrote it, as she was not conscious. In our considered opinion, the above referred to evidence would not amount to P.W.1 disowning the complaint given by her, since the above evidence refers to her examination in the hospital by the police after registering the crime. The crime had come to be registered at 8.00 p.m on the day of occurrence. Therefore there is no doubt at all that P.W.1 did not disown the complaint given by her. But unfortunately, the State counsel, under the assumption that P.W.1 is disowning the complaint, had put her signature alone in that complaint to her, which she admitted. That signature stands marked as Ex.P.1 and the complaint is Ex.P.17. In her evidence in cross, when done by the State, she would state that she did not know what she told the police. P.W.12 is the Sub-Inspector of Police, whose evidence shows that at 8.00 p.m on the day of the occurrence, P.W.1 appeared before him and gave the complaint. From his evidence recorded in chief as well as in cross, we do not find any material at all to even infer that P.W.12 had concocted the complaint. In other words, Page 2005 we see no reason at all to hold that P.W.12 is the author of the contents of Ex.P.17. The complaint (Ex.P.17) and the printed first information report (Ex.P.18) had reached the court even before the inquest commenced on the next day. In the complaint we find a reference to the presence of the sisters-in-law of P.W.1 in the house at the time of the occurrence. It is also stated therein that P.W.1 had reached the police station along with her sister-in-law by name Malar examined in this case as P.W.4. P.W.4 had clearly stated that after taking first aid, they reached the police station, where the complaint was narrated, which was reduced into writing by the police. She would also state that P.W.1 had signed the complaint. No material worth mentioning had been elicited in her evidence in cross to doubt the giving of the complaint as referred to above. Therefore from the mere fact that P.W.1 was treated as hostile, it cannot be said that Ex.P.17 is the concocted version. When the author of the complaint to the police disowns the said complaint, the Supreme Court in the judgment referred to supra held that it is not necessary that the complaint must be doubted as the concocted version of the police personnel. In that judgment the Supreme Court had stated as follows:
"It is true that the first information report is not substantive evidence but the fact remains that immediately after the incident and before there was any extraneous intervention P.W.4 went to the police station and narrated the incident. The first information report is a detailed document and it is not possible to believe that the Investigating Officer imagined those details and prepared the document Ex.P.3. The detailed narration about the incident in the first information report goes to show that the subsequent attempt of P.W.4 to disown the document, while admitting his signature thereon, is a shift for reasons best known to P.W.4. We are, therefore, not prepared to accept the criticism that the version regarding the incident is the result of some fertile thinking on the part of the investigating officer. We are satisfied, beyond any manner of doubt, that P.W.4 had gone to the police station and had lodged the first information doubt. To the extent he has been contradicted with the facts stated in the first information report shows that he has tried to resile from him earlier version regarding the incident."
In this case also, P.Ws.1 and 4 reached the police station within half-an-hour after the occurrence and therefore there cannot be any scope for any extraneous intervention in P.W.1 going to the police station and lodging the complaint. Under these circumstances, as decided by the Supreme Court in the above referred to judgment, we are not inclined to doubt the giving of the complaint by P.W.1 as spoken to by P.W. 4 and P.W.12.
20. We will now come to the point advanced by Mr.A.K.S. Thahir, learned counsel for the second appellant/A-2 that he did not share the common intention with the other accused to kill the deceased. It is needless to state that common intention can develop at any stage i.e., it can be either prior to the incident or it can develop during the course of the incident. Common intention can always be inferred from established circumstances. In this case, it is not as though A-2 caused the first injury followed by the assault by A-1 and the other accused, since deceased. On the other hand, the sequence of attack, as spoken to by P.W.4, is that Chinnakutty Page 2006 (accused-since deceased) caused a cut injury with a veecharuval on the head of Mathi followed by a cut injury on the knee by A-2 while A-1 came from behind and cut on the neck of the deceased causing an injury to the spinal cord. It may be true that in the postmortem report, the injury caused by A-2 is shown as injury No.1. But, that does not mean that the injuries on the deceased came to be caused only in the manner as noted therein. The doctor, while examining the dead body, notes down the injuries, as he sees it and therefore, the sequence of events, as spoken to by the witnesses alone, should be taken into account. As already stated, the attack by A-2 was preceded by Chinnakutty (accused-since deceased), who caused a grievous injury on the head of the deceased. Even after seeing that attack, which was on the vital part of the body, if A-2 had chosen to cause an injury on the leg with a knife, except common intention, nothing else can be inferred from the act of A-2. The veracity and vengeance with which A-2 is shown to have attacked the deceased could be seen from the nature of injury caused on the deceased, noted as injury No.1 in the postmortem report and it is as follows:
"1. Oblique gaping chop wound 11 x 4 cms over the outer aspect of middle third of left leg. On dissection, the underlying muscles of the leg are completely severed with partial severence of bone over the outer aspect of tibia to an extent of 1.5 x 1 x 0.5 cms and the depth of the wound is 3 cms."
Besides the above injury caused by A-2, A-1 caused a cut injury on the neck resulting in severance of the spinal cord. From the sequence of events, established facts and the nature of injuries caused by the accused, there can be no difficulty at all to conclude that each of the accused had shared the common intention to kill the deceased. Therefore, the argument advanced by the learned counsel for A-2 that he cannot be said to have shared the common intention with A-1 and the other accused to kill the unfortunate victim in this case cannot be accepted.
21. Two case laws are cited before us by the learned counsel appearing for the first appellant/A-1. The first case law, reported in 1994 2 L.W. (Crl.) 422 (Kartar Singh v. State of Punjab) is relied on to show that evidence must be read as a whole and it is the duty of the Court to read it as such and then come to a conclusion. We only state that we have not disobeyed the law laid down in that judgment. We have gone through the evidence of P.W.4 in its entirety, applied our mind with utmost care and caution and then came to the conclusion that the evidence of P.W.4 is believable. The other case law relied on is reported in 1975 SCC Crl. 125 (Jagir Singh v. State (Delhi))where the impact of a hostile witness is discussed. The recent trend of decisions of the Supreme Court is that Court need not ignore the entire evidence of a witness, who turned hostile. The Court can always look into any portion of the evidence of the witness turning hostile to find out whether it can be relied on and whether it contains any material, either in favour of the State or in favour of the accused. In so doing, the Apex Court held that, the Court would not be committing any error. We have given our anxious consideration to the oral evidence of P.W.4 and went through every line, from top to bottom, with care and caution and we find that P.W.4's evidence is trustworthy in its entirety.
Page 2007
22. In these circumstances, for all the reasons stated above, we do not find any infirmity in the judgment in challenge and accordingly, it is sustained. The appeal is dismissed. Bail bonds, if any, executed by the first appellant shall stand terminated. This Court is informed that A-1 is on bail. The Court of Sessions is directed to secure the presence of A-1 and commit him to prison to serve the rest of the imprisonment.