Kerala High Court
Sebastian @ Assaithambi vs Unknown on 24 February, 2016
Bench: P.Bhavadasan, V Raja Vijayaraghavan
IN THE HIGH COURT OF KERALAAT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.BHAVADASAN
&
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
WEDNESDAY, THE 24TH DAY OF FEBRUARY 2016/5TH PHALGUNA, 1937
CRL.A.No. 1394 of 2011 (D)
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SC 634/2006 of ADDITIONAL SESSIONS COURT (ADHOC-I), THODUPUZHA
CP 23/2006 OF JUDICIAL MAGISTRATE OF FIRST CLASS COURT, DEVIKULAM
APPELLANTS:
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1. SEBASTIAN @ ASSAITHAMBI, C.NO.5496,
CENTRAL PRISON, TRIVANDRUM.
2. MAHESH, C.NO.5475
CENTRAL PRISON, TRIVANDRUM.
3. RAJESH, C.NO.5497,
CENTRAL PRISON, TRIVANDRUM.
4. KUTTIYAMMA, C.NO.691,
WOMEN'S PRISON, NEYYATTINKARA, TRIVANDRUM.
BY ADV. JIJO JOSEPH [STATEBRIEF]
RESPONDENT
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STATEOF KERALA
PUBLIC PROSECUTOR.
BY PUBLIC PROSECUTOR SMT. JASMINE V.H.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10.2.2016, THE
COURT ON 24-02-2016 DELIVERED THE FOLLOWING:
P.BHAVADASAN &
RAJA VIJAYARAGHAVAN.V., JJ
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Crl.A.1394 of 2011
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Dated 24th February, 2016.
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JUDGMENT
Raja Vijayaraghavan.V.
1.The tranquil highlands of Munnar was jolted by the murder of Palaniswamy, an agricultural worker, all of 40 years of age, at the hands of the 1st accused Sebastian and his family members comprising of his two sons and wife. His son-in-law was also alleged to have been involved.
2.A brief resume of the prosecution case as is revealed from the evidence is as below:-
Aasaithambi @ Sebastian, and the deceased Palaniswami are residents of the Sandoz Colony at Kundala. The accused Nos.2 & 3 are the sons of Aasaithambi and the 4th accused is his wife. A couple of weeks prior to 21.5.2004, the 1st accused Crl.A.1394 of 2011 2 and the deceased had picked up a fight when the deceased attempted to take a 50 rupee note from the pocket of the accused. The accused was under
the impression that the deceased was a snitch, and believed that the deceased had disclosed to the Forest officials about the smuggling of sandal wood by the accused. This being the background scenario, on 21.5.2004, the deceased and his relative, Mohan-PW1, were engaged in a conversation at about 5 p.m., in the home of the deceased at Sandoz colony. The accused came there in an aggressive mood and started abusing the deceased after asking him whether it was he who had stated about the smuggling of sandalwood by the accused and a fracas ensued between the deceased and PW1 on one side and the accused on the other side. The mother of the deceased intervened and managed to send out the accused. She had no idea as to what was in store Crl.A.1394 of 2011 3 for her son. After a short while, the deceased joined PW1 - Mohanan in the tea shop of Vallimuthu situated in the same colony. While they were engaging themselves in a conversation, the accused appeared and called out the deceased. Accused No.2 Mahesh, accused No.3 Rajesh, Sebastian's son-in-law - Kuttan and Sebastian's wife Kuttiamma were standing outside. The 1st accused asking whether he would not permit them to live started abusing the deceased. It appears that the deceased got a cue that situation was going out of hand and, he asked PW1 - to come out. He alerted him by saying that the accused were armed and their intention was to finish him off. Mohanan immediately rushed to the rescue of the accused and noticed that A5- Kuttan was holding the hands of the deceased from behind. Mohanan managed to push Kuttan away. A1 - Sebastian swung a chopper at PW1 which fell on Crl.A.1394 of 2011 4 the index finger of his left hand causing an injury. PW1 implored the accused to desist from causing any harm. Without paying any heed, the accused Nos. 2 & 3 pushed the deceased to the ground. While the deceased was lying down Sebastian inflicted a cut injury on the left side of his abdomen. The 2nd accused inflicted two stab injuries on the chest of the deceased with a knife. The deceased shrieked out and his attempt to get up did not succeed as the 4th accused pushed him down down by his neck. Hearing the commotion, neighbors and relatives came to the scene and the accused after brandishing the weapons to keep them at bay, took to their heels. The deceased was initially carried to his residential house situated towards the south. Thereafter, he was removed to Puthukkady in a tractor. He was then taken in a jeep to the Munnar Government Hospital. The doctor after examining him pronounced him dead. Crl.A.1394 of 2011 5
3.Based on the information given by PW1 - Mohan on 21.5.2004 at 10.00 p.m, Ext.P1(a) FIR was registered by the Sub Inspector of Police, Munnar.
4.On 22.5.2004, investigation was taken over by PW10, the Circle Inspector of Police, Devikulam. He conducted inquest over the dead body of the deceased and prepared Ext.P5 report and seized MO1 to 7 found on his body. Steps were taken to send the body for autopsy and PW11, the Senior Lecturer and Assistant Police Surgeon conducted postmortem and issued Ext.P8 report.
5.Thereafter, investigation was taken over by PW12, the Circle Inspector of police, Munnar. He went to the scene of crime and prepared Ext.P6 mahazar. MO8 blood stained stone was seized. Thereafter, Ext.P9 report was submitted before Court furnishing the correct name and address of the accused. Ext.P10 report was submitted reporting that only offence under Section 324 and 302 read Crl.A.1394 of 2011 6 with Section 34 of the IPC was made out and sought for deletion of Section 147, 148, 324 and 302 read with Section 149 IPC incorporated in the FIR. The name of accused No.5, Kuttan, was deleted as per Ext.P11 report. On 23.5.2004, accused Nos.1 to 3 were arrested. At the time of arrest, the clothes worn by the 1st accused were seized as per Ext.P12 mahazar. MO1 weapon used by the 2nd accused was produced by him which was seized as per Ext.P13 mahazar. Thereafter, Ext.P14 report was submitted incorporating some aspects which were not included in the scene mahazar. Accused No. 4 was arrested on 27.5.2004.
6.On 29.6.2005, PW13, the successor in office of PW12 took over investigation. He produced Ext.P20 chemical analysis report before Court. After verifying the records, he laid the charge before the jurisdictional Magistrate after deleting Crl.A.1394 of 2011 7 Kuttan who was arrayed as accused No.4 in the FIR.
7.The Court before which the final report was laid took cognizance of the offences. Finding that the offences were exclusively triable by a Court of Sessions, the said Court committed the case to the Court of Sessions, Thodupuzha under Section 209 of the Cr.P.C after following the necessary procedures. The said Court on receipt of records made over the case to the III Additional Sessions Judge (Ad hoc-I), Thodupuzha, for trial and disposal. The latter Court on receipt of records and on appearance of the accused framed charge for the offence under Section 324 , 341, 302 of the IPC read with Section 34 of the IPC. To the charge, the accused pleaded not guilty and claimed that they be tried.
8.The prosecution had 14 witnesses examined as PWs 1 to 14 through whom 27 documents were Crl.A.1394 of 2011 8 marked as Exts.P1 to 27. They also had MO1 to 10 produced and identified.
9.It has to be mentioned here that, in the course of trial, after examining PWs 1 to 4, when it appeared from the evidence that the 4th accused was also involved, he was also ordered to be proceeded against and was arrayed as accused No.5. The witnesses were recalled and re-examined as envisaged under Section 319 of the Cr.P.C.
10.The trial was proceeded with and after close of the prosecution evidence, the incriminating materials arising from the prosecution evidence were put to the accused under Section 313 (1)(b) of the Cr.P.C. They denied the incriminating circumstances and maintained that they were innocent. Apart from denying the incriminating circumstances, accused No.1 filed a statement in which it was stated that PWs 1, 5 and CW7, son of Palaniswami and the deceased were not in good Crl.A.1394 of 2011 9 terms with the accused No.1. With a view to get back at him the above named persons had surrounded him with dangerous weapons. When he attempted to escape from the assault the stab meant to be inflicted on him struck the body of Palaniswami. The electricity supply was disrupted then and taking advantage of the same, he had escaped from their clutches. He asserted in his statement that neither his wife nor his sons were present at the scene of crime. According to the 1st accused a Sessions Case was also pending against PW1 and PW5 for setting fire to his residential home. In the statement filed by the 2nd accused he stated that MO1 knife was not handed over to him by the police. It was further stated that the 1st informant was inimically disposed towards his father and it was in the said circumstances that he along with his family members were falsely implicated in the crime.
Crl.A.1394 of 2011 10
11.Finding that the accused could not be acquitted under Section 232 of the Cr.P.C they were asked to enter on their defence. DW1 Vallimuthu, the owner of the tea shop was examined on the side of the defence and Exts.D1 to D10 were marked.
12.The Court below found the evidence of PWs 1, 2 and 4 to be convincing enough to prove the involvement of the accused. Accepting the testimony of the above witnesses the Court below came to the conclusion that the accused Nos.1 and 2 had inflicted fatal injuries on the body of deceased Palaniswami. It was further found that accused Nos.3 and 4 were not silent spectators and they had attempted to strangulate the deceased who was lying on the ground after having sustained fatal injuries. The accused Nos.1 to 4 were found to have been actuated by common intention to cause the death of the deceased. The accused No.5 was found to have not shared a prior Crl.A.1394 of 2011 11 concert and he was held responsible for his individual acts of wrongfully restraining the deceased. Holding so, the accused Nos.1 to 4 were found guilty for the offence punishable under Section 302 read with Section 34 of the IPC and they were sentenced to undergo imprisonment for life and to pay a fine of Rs.10,000/- each and in default to undergo rigorous imprisonment for one year. The 1st accused was sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.1000/- and in default to undergo rigorous imprisonment for three months under Section 324 of the IPC. The 5th accused was sentenced to pay a fine of Rs.500/- and in default to undergo simple imprisonment for one week.
13.The appellants assails their conviction and sentence in this appeal.
14.Since the appeal was preferred by the appellants from the jail while undergoing sentence, Adv.Jijo Crl.A.1394 of 2011 12 Joseph was appointed as State Brief by this Court to defend the accused.
15.Sri.Jijo Joseph in a very able and competent manner addressed arguments assailing the findings of the learned Sessions Judge. It was submitted that the learned Sessions Judge has not analyzed the evidence in the proper perspective and failed to appreciate that the prosecution case was littered with inconsistencies. According to the learned counsel the incident had not happened as alleged by the prosecution. The occurrence witnesses cited by the prosecution are related and interested and their evidence tainted and the learned Sessions Judge committed an egregious error in placing reliance upon the same. The learned counsel by taking us through the evidence of the eyewitness, submitted that their version was unreliable. It was argued that DW1, Vallimuthu, the owner of the tea shop , from where Crl.A.1394 of 2011 13 the incident is said to have commenced, though was cited by the prosecution, was not examined. According to the learned counsel, the evidence let in by DW1 was in direct conflict with the evidence let in by PWs 1 to 4. Much emphasis was placed on the absence of electric supply in and around the scene of crime. It was pointed out that, the whole prosecution case is shrouded in a cloud of doubt, the benefit of which should be extended to the accused.
16.According to the learned counsel, a proper analysis of the evidence of PW2 would reveal that the sequence of events narrated by him was in direct conflict with the evidence of PW1. It was pointed out that PW2 had denied having witnessed the 2nd accused inflicting injury on the body of the deceased with MO1 knife. He also had specifically denied the presence of the 5th accused at the scene of crime.
Crl.A.1394 of 2011 14
17.The learned counsel would then go on to submit that the learned Sessions Judge has placed implicit faith on the evidence of PW5 who had claimed to have witnessed the incident from the inception. Referring to the cross examination of the said witness it was pointed out by the learned counsel that he had deposed that he had come to the scene of crime and had found the deceased lying on the ground. If that be the case, no reliance ought to have been placed on his evidence, is the submission of the learned counsel. It was pointed out that the narration of the prosecution case by the witness was artificial and if an impassionate appreciation of evidence was carried out, it would be revealed that the incident has not occurred as alleged by the prosecution.
18. The learned counsel would submit that the prosecution case would be falsified as the injuries found on the body of the deceased did not tally Crl.A.1394 of 2011 15 with the alleged weapon used by the 1st accused. Relying on the evidence of the doctor who prepared Ext.P8 postmortem certificate, it was contended that the injury found on the body of the deceased could have been inflicted only with a weapon similar to MO1. Absence of recovery of the chopper at the instance of the accused was highlighted as another flaw in the prosecution case.
19. According to the learned counsel, there was a melee at the scene of crime when the deceased and his associates attempted to inflict grievous injuries on the 1st accused and it is in the ensuing commotion that the deceased had sustained the injury.
20. Per contra, the learned Public Prosecutor would submit that the evidence let in by the prosecution by examining PWs 1 to 4 was clinching and their testimony had withstood the test of Crl.A.1394 of 2011 16 scorching cross examination at the hands of the defence counsel. It is pointed out that the witnesses are rustic villagers and they were examined before Court after six years of the occurrence. Except for some minor omissions and trivial contradictions which did not affect the core of the prosecution case, nothing was brought out to doubt the veracity of their testimony. It was submitted by the learned Public Prosecutor that the accused had brutally murdered Palaniswami in public view and the prosecution was successful in establishing the complicity of all the accused. It was finally submitted that the trial Court had meticulously analyzed the evidence and found the evidence of PWs 1 to 4 to be convincing enough to establish the prosecution case and there was no reason to interfere with the reasoned findings of the learned Sessions Judge.
21. The first question is as to whether the Crl.A.1394 of 2011 17 prosecution has established that deceased Palaniswami had met with a homicidal death. The prosecution relies on the evidence of PWs 1 to 4 to bring home the point that the deceased Palaniswami was stabbed to death at 7.00 p.m on 21.5.2004 in front of the tea shop of Vallimuthu. The injured was immediately taken to Munnar Tata Government Hospital but he did not survive and he was declared dead. Ext.P5 inquest was prepared by PW10, the Circle Inspector of Police and he had noted the bodily injuries. Autopsy was conducted by PW11. Ext.P8 is the postmortem certificate which reveals the antemortem injuries sustained by Palaniswami.
(i). Incised wound 1.5 x 0.5 x 1 cm obliquely placed on the right side of front of chest with its upper inner and 4 cm outer to mid line and 5 cm below the collar bone
(ii). Incised penetrating wound 2.5 x 0.5 cm obliquely placed on the right side Crl.A.1394 of 2011 18 front of chest, with its upper inner end touching the mid line and 12 cm below the sternal notch. Both ends were sharply cut. It entered the chest cavity by cutting the 6th costal cartilage and adjoining part of sternum. It cut the pericardium and terminated in the cavity of the right ventricle of the heart by penetrating its front wall. Pericardial cavity contained 250 ml of fluid blood and clots. The right chest cavity contained 2 litre of fluid blood. Right lung was partially collapsed.
The track of the wound was directed upwards, backwards and to the left and had a minimum depth of 4 cm.
(iii). Incised penetrating wound 2.3 x 0.5 cm obliquely placed on the left side of abdomen with its lower inner end 12.5 cm outer the mid line and 3 cm above the top of hip bone. Subcutaneous tissue was seen projecting through the wound. It entered the abdominal cavity by cutting the peritoneum and terminated in the lumen of distal part of descending colon after penetrating its front walls. The track of the wound was directed downwards, backwards and to the right Crl.A.1394 of 2011 19 and having a minimum depth of 6 cm.
Peritoneal cavity was smeared with blood. Air passage contained blood stained fluid. Left lung was congested and oedematous. Stomach contained 25 cc of brownish fluid having an unusual smell. Its mucosa was congested at places. Urinary bladder was empty. All other organs were pale, otherwise normal. Sample of blood preserved and sent for chemical analysis. Dried blood stained gauze piece was handed over to the police for grouping.
22. A perusal of Ext.P8 leave one in no manner of doubt that the cause of death was the injuries sustained to the chest and abdomen. When he was examined, PW8 stated that injuries No.2 and 3 are sufficient in the ordinary course of nature to cause death. He also testified that the injuries could be produced by using MO1 weapon or any other similar weapon. Much criticism was raised by the learned counsel to contend that the injury to the Crl.A.1394 of 2011 20 abdomen could not be caused by a chopper said to have been used by the 1st accused. The said weapon was not recovered. PW8 stated in unmistakable terms that injury No.3 sustained to the abdomen is an incised wound and if the assailants had inflicted an injury with a chopper when the injured was lying on the ground similar injury could be sustained. The evidence of PW8 read with Ext.P11 postmortem report along with other materials would establish that Palaniswami had died as a result of an inflicted injury and it is a clear case of homicide.
23. The next point that arises for consideration is whether the prosecution was able to establish that it was the accused Nos.1 to 4, who had in furtherance of their common intention mounted an attack on deceased Palaniswami resulting in him sustaining the fatal injuries. In order to prove these aspects, the prosecution places considerable Crl.A.1394 of 2011 21 reliance on the evidence of PWs 1 to 5.
24. PW1 gives a very graphic picture of the incident. He also claims to have sustained an injury while he went to the rescue of the deceased. He would say that at 9.00 a.m on the date of incident, he along with the deceased had gone to Munnar town. He spoke about the fight between the accused and the deceased inside the house and how the mother of the deceased was able send out the accused. Later he met the deceased inside the tea shop at about 6.00 p.m. A short while thereafter, the accused also came to the shop. The accused and the deceased entered into an altercation in connection with a monetary dispute. The tea shop owner asked both of them to go out of the shop room. After a few moments PW1 heard the accused calling him and requesting for his help saying that the accused had come to finish him off with weapons. He immediately rushed to Crl.A.1394 of 2011 22 the aid of the deceased. The 5th accused Kuttan was found holding the hands of the deceased from behind. The accused Nos. 2, 3 and 4 were found carrying weapons. A3 was carrying a chopper and A2 was carrying a knife. PW1 implored them to not to cause any trouble. The 1st accused took the chopper from the hands of the 3rd accused and lashed at PW1 and it fell on the finger of the left hand of PW1. The accused Nos.2 and 3 pushed the deceased down and he fell on the ground. The 1st accused inflicted a cut injury on the abdomen of the deceased with a chopper. The 2nd accused inflicted two injuries with a knife and when the deceased tried to get up the 4th accused pushed him down by holding on to his neck. When PW1 and others cried out, several persons came to the scene and the accused after brandishing the weapons took to their heels. He also deposed as to how the deceased was taken to the Munnar Crl.A.1394 of 2011 23 hospital and about lodging Ext.P1 FI statement before the S.I of Police. The main criticism leveled against the evidence let in by PW1 is with regard to the identification of the 2nd accused. During the initial stage of cross examination when he was asked to point out the 2nd accused he had pointed out the 3rd accused. Later, he corrected himself and correctly identified all the four accused. The prosecution also was able to bring out Exts.D1 to D4 contradictions in the evidence of PW1. We have gone through the same and we do not feel that the defence was able to make any dent in the evidence of PW1. Of course, though PW1 has got a case that he had sustained injury to his finger, no documents were produced to substantiate the same. As against his earlier statement that the deceased had gone out of the tea shop when he was called by the accused No.1 , in evidence he would say that they had entered into an altercation Crl.A.1394 of 2011 24 inside the shop room and both the parties were asked to go out by the tea shop owner. He stated that the injury was not serious and that he had gone home after getting some first aid.
25. The next witness examined by the prosecution is one Kumar, who is also a resident of Sandoz Colony. PW2 testified that on 21.5.2004 at 6.30 p.m he went to a provision store near to the tea shop of Thankadurai to purchase a candle. He saw the altercation between the 1st accused and the deceased. Thankadurai asked the fighting parties to go out of his tea shop. Even thereafter, there was haggling between them. All the four accused were standing outside the shop. A3-Rajesh was carrying a chopper. A1 took the chopper and waved which fell on the abdomen of Palaniswami. At that point of time PW1 interfered and thereafter the accused pushed the deceased down. Then there was a hue and cry. CW7 and 8 came Crl.A.1394 of 2011 25 running to the scene. According to PW2, the accused brandished the weapons and fled. The learned Sessions Judge found the witness to be in a perplexed state and noted his demenour. He did not entirely support the prosecution version and was therefore declared hostile. After having gone through the evidence of PW2 we do not think that the learned Sessions Judge was justified in not placing any reliance on his evidence.
26. PW3 Kalimuthu is also a resident of the Sandoz colony and he is acquainted with the accused and the deceased. He would say that on 21.5.2004 at about 6.30 p.m he went to the tea shop run by Vallimuthu. He spoke about the sparring between the accused and the deceased inside the tea shop and about them being asked to leave the tea shop by its owner. After getting out of the tea shop, the altercation went on unabated. The wife and children of the 1st accused were present outside. Crl.A.1394 of 2011 26 PW1 - Mohan intervened and attempted to instill good sense. The 1st accused took a chopper from the hands of the 3rd accused and lashed at PW1 which fell on the fingers of his left hand. They pushed the deceased down and a cut injury was inflicted on the abdomen by the 1st accused. A3 and A4 strangulated the deceased. Hearing the commotion CW7 and 8 came running and Palaniswami who was previously injured was removed to the hospital. The learned counsel appearing for the appellant pointed out that in his chief examination, the witness had not narrated about the infliction of stab injury by the 2nd accused. Later, he was prompted by the prosecutor to blurt out this fact. Grave exception was raised by the learned counsel and pointed out that the witness had no such case. It has to be appreciated that PW3 is a plantation worker and he had deposed before Court what he had seen on the Crl.A.1394 of 2011 27 date of incident. It cannot be expected that each and every witness should depose the entire sequence of events in unison as the perspective and depth of observation of witnesses may vary. As stated earlier, the witnesses were examined before Court more than six years after the incident and minor omissions if any, in the statement of witnesses cannot be taken as sufficient enough to disbelieve the version of the said witness. In cross examination when the witness was asked about the role played by the 2nd accused, he narrated the same in convincing fashion. We find that in so far as the incident is concerned, the evidence of PW3 is convincing and cogent and substantially corroborates the prosecution version and that of the other witnesses.
27. We shall now move on to the evidence of PW4, an occurrence witness who claims to have witnessed the incident. He reiterated the incident Crl.A.1394 of 2011 28 in tune with the evidence of PW1. His version of the incident is unchallenged and he speaks about the role played by each of the accused. It would be unnecessary to refer to his evidence in detail for the simple reason that it is in consonance with the evidence of PW1, PW3 and to a large extent, with Ext.P1 with regard to the sequence of events and the individual overt acts. According to us, the evidence let in by PW4 is of sterling value and corroborates the prosecution version in its entirety. The defence was unable to make any dent while cross examining the said witness. The evidence of PWs 1 and 4 corroborated to a certain extent by the evidence of PW3 and the prompt lodging of the FI statement would leave no manner of doubt as regards the complicity of the accused.
28. PW5 is the brother of the deceased and he is also a resident of Sandoz colony. He comes to the scene of crime hearing the commotion and when Crl.A.1394 of 2011 29 he reached the scene he saw the accused Nos.3 and 4 holding on to the neck of the deceased. The 1st and 2nd accused were seen standing holding a chopper and knife respectively. He states that the deceased was lying on the ground in a pool of blood. The accused had left the place after brandishing the weapons at the persons who had assembled. He also stated that PW1 had sustained an injury to his finger. He stated that they had carried the deceased to his house and from there he was removed to the hospital. He fairly admitted that he had not seen the origin of the incident.
29. The learned Sessions Judge had meticulously analysed the evidence of PWs 1 to 5 and found no discrepancy or inconsistency in their evidence. The learned Sessions Judge was of the view that except for the evidence of PW2, the other witnesses were trustworthy and the defence was not able to bring out anything to suspect their Crl.A.1394 of 2011 30 version of the incident.
30. As we had mentioned above, the attempt of the learned counsel appearing for the appellant was to bring out that the prosecution witnesses were related and therefore, interested and their version could not be relied on to conclude that the incident had happened as alleged. It was the attempt of the learned counsel to bring out that the deceased and his relatives had unilaterally attacked the 1st accused and the injury was sustained by the deceased at the hands of his own relatives.
31. The learned counsel in order to bring out the alternate version of the incident, examined DW1 - Vallimuthu, the owner of the tea shop, in front of which the incident is said to have commenced. DW1 would say that he was running a tea shop at Sandoz colony and the accused and the deceased were his customers. The deceased was residing Crl.A.1394 of 2011 31 about 100 ft away from the tea shop. On the date of occurrence, at 6.30 p.m, the 1st accused had come to his tea shop for having tea. The deceased and PW1 also came there. While they were sitting inside, there arose an altercation between the deceased and PW1 on one side and the accused on the other side. He would say that he asked the fighting parties to leave. According to him after the parties had gone out, the power supply got disrupted and according to him, he is unaware as to what happened thereafter. He ran off to his house after closing his tea shop as he was afraid that they would pick up a fight inside his shop. He also stated that he was unaware as to who all were there outside his tea shop. In cross examination the witness stated that there was an electric bulb inside the tea shop.
32. It would be relevant to take note of the stand of the accused in their 313 statement. The 1st Crl.A.1394 of 2011 32 accused had stated that the deceased and his relatives had surrounded him and attempted to inflict injuries and the stabs intended for him had fallen on the bodies of the deceased.
33. After having independently evaluated the evidence on record, we do not find any reason to doubt the version of PWs 1, 3 and 4. The contention vehemently advanced by the learned counsel appearing for the appellant that there are omissions and contradictions in their evidence which would make it unsafe to place reliance on their testimony, does not appear to be sound. It is by now settled that while appreciating the evidence of rustic witnesses coming from a rural background, the Courts should test their evidence based on their behavioural pattern and perceptive habits. Too much sophistication should not be adopted by the Courts while appreciating their evidence, and that too, based on unreal Crl.A.1394 of 2011 33 assumptions about human conduct. One cannot expect such witnesses to possess a photographic memory and to recall the details of the incident as if a motion picture is rendered on the mental screen. It is natural for witnesses to be overtaken by events and he could not have anticipated that a gruesome incident is going to happen in front of his eyes. The resultant shock will not prepare him to absorb the scene in all its finer details. More over, powers of observation varies from individual to individual and the power of recollection also drastically varies. When an incident is witnessed by several persons, each person's perceptive may be different and what one notices or observes may not be noted or observed by another person. There may be persons who stand and watch the incident without even flinching and there may be persons who would flee immediately sensing trouble. It would be extremely difficult for a person Crl.A.1394 of 2011 34 witnessing a gruesome incident to recall accurately the sequence of events which takes place in rapid succession and that too in a short period of time. If several accused are involved and if the Courts were to insist that all the occurrence witnesses should narrate the event in the correct sequence and describe the overt acts and the weapons used by individual accused with arithmetical precision, it would only result in making the criminal trial a farce. More over, a witness, though truthful and present at the scene of crime, may easily be overawed by the spectacle and proceedings that take place in a trial Court. When he is subjected to incisive and detailed cross examination by a trained counsel, he is likely to get confused and cannot be faulted if there is some discrepancy in the narration of the sequence of events. The witnesses are also likely to embellish their version in order to make it more believable as the long Crl.A.1394 of 2011 35 passage of time, from the date of occurrence to the date of trial, may yield him more inputs. He is likely to add embroidery to the events without actually intending to depose falsehood. There is every likelihood that the witness is giving a truthful and honest account of the incident which was witnessed by him.
34. The Court while appreciating the evidence of such witnesses, must not attach undue importance to minor discrepancies. Those discrepancies which do not shake the basic version of the prosecution case can be easily discarded. The discrepancies which are due to normal errors of perception or observation should not be given any importance. The errors due to lapse of memory should also be given due allowance. The Court by calling into aid its vast experience in men and matters in difference cases must evaluate the entire material on record by excluding the exaggerated version Crl.A.1394 of 2011 36 given by the witness. When a doubt arises in respect of certain facts alleged by such witness, the proper course is to ignore that fact only unless it goes to the root of the matter so as to demolish the entire prosecution story. The witnesses may add embellishments to their version perhaps for the fear of their testimony being rejected by the Court. The Courts however, should not disbelieve the evidence of such witnesses altogether if they are otherwise trustworthy. In short, variance from their earlier statement on the fringes, minor discrepancies in the details, contradictions in narrations and embellishments in inessential parts cannot militate against the veracity of the core of the testimony provided there is the stamp of truth and conformity to probability in the substantial fabric of testimony delivered.
35. We therefore, reject the contention of the learned counsel that the evidence of prosecution Crl.A.1394 of 2011 37 witnesses are beset with infirmities and the same cannot be relied on to convict the accused. It would appear without doubt that the incident had occurred as alleged by the prosecution and there is nothing to doubt the version given by the prosecution regarding the incident. We find it difficult to believe the version of the defence attempted to be put in by examining DW1. The rigors of cross examination was withstood admirably by the prosecution witnesses and there is nothing in the evidence to take a different view of what had transpired on the date of incident. The medical evidence let in by the prosecution clearly corroborates the version of the witnesses which makes their testimony to be credit worthy.
36. The criticism raised by the learned counsel with regard to the presence of blood at a distance of about 30.40 metres towards the south from the place of occurrence was properly explained by the Crl.A.1394 of 2011 38 prosecution witnesses. If the evidence of the witnesses are appreciated closely, they would say that immediately after the incident the deceased was taken to his house which is towards the south of the tea shop of Vallimuthu. It was from there that the injured was removed to the hospital in a tractor. This justifies the presence of blood noted in Ext.P6 scene plan. From the scene plan itself it is revealed that the house of the deceased is immediately on the western side of the place from where the blood stained stone pieces were found.
37. The evidence let in would clearly reveal that the accused persons had acted in concert and also discloses an element of participation in action on the part of all the accused persons. The inference is inescapable from the sequence of events and the narration of the incident by the witnesses that the murder of Palaniswami was perpetrated by the accused in furtherance of their common intention Crl.A.1394 of 2011 39 and therefore, each of such persons are liable in the same manner as if it were done by him alone. The learned Sessions Judge has considered these aspects in the proper perspective and we have no reason to disagree from the said findings.
38. In the result, the appeal is dismissed. The conviction and sentence are confirmed. The appellant shall be entitled to set off as provided u/s 428 of the Code of Criminal Procedure for the period he has been in custody in this case, subject to the orders passed by the authority u/s 432/433 of the Code of Criminal Procedure.
Sd/-
P.BHAVADASAN Judge Sd/-
RAJA VIJAYARAGHAVAN.V. Judge Mrcs/15.2.2016 //True Copy// P.S.ToJudge