Madras High Court
Nizamuddin, Rajendran @ Vathan And ... vs The Inspector Of Police, ... on 25 April, 2002
JUDGMENT R. Balasubramanian, J.
1. The appellants in this appeal are A1 to A3 in S.C.No.138/1996 on the file of the Second Additional Sessions Judge, Coimbatore. They were tried for the offence punishable under section 302 read with section 34 I.P.C and at the end of the trial, they were found guilty of the said offence. Accordingly each one of them stands sentenced to undergo imprisonment for life. Hence the present appeal.
2. The prosecution case in brief is as follows:
A male by name Paraman had been done to death in this case around 11.45 p.m on 21.07.1994. The place of occurrence is shown to be opposite to the grocery shop of P.W.1. P.W.1 in his capacity as the eye witness, lodged an information with P.W.15, the Sub-Inspector of Police around 11.45 p.m on that night. P.W.15 reduced that complaint into writing and after taking the signature of P.W.1 in it, registered that complaint as Ex.P.23 in Crime No.506/1994 for the offence punishable under section 302 I.P.C. Ex.P.24 is the printed first information report prepared by him. He sent the material records to the court as well as to the higher officials. P.W.1 turned hostile. P.W.2, examined as an eye witness to the occurrence, gave evidence implicating A1 and pleaded ignorance with reference to the other two assailants. Accordingly he was treated as hostile. It may be noticed here that even in Ex.P.23 the name of A1 alone is mentioned and it is found stated therein that he was in the company of the other two assailants. In Ex.P.24 against Column No.6 regarding the details of the accused, the name of A1 alone is mentioned and the other assailants are described as "known two assailants".
3. P.W.16 collected the material records immediately after the mid-night on 21.07.1994 and proceeded to the scene of occurrence. He prepared the observation mahazar/Ex.P.2 in the presence of P.W.7. He also prepared the rough sketch/Ex.P.25. From the scene he recovered M.Os.3, 6 and 7 under Ex.P.3 attested by P.W.7. He conducted inquest over the dead body at 2.30 p.m on 22.07.1994 in the presence of panchayatdars and witnesses. During inquest he examined P.Ws.1, 3, 4, 7 and others and recorded their statements. Ex.P.26 is the inquest report. Then he sent the dead body for post mortem through a police constable. He also caused photographs of the scene of occurrence to be taken. P.W.12 is the Photographer, who took photographs of the scene of occurrence. M.Os.15 and 16 series are the photographs and their negatives respectively. P.W.13 is the police constable, who was present during post mortem. After post mortem he handed over the dead body to the relatives. He also recovered M.Os.1, 2 and 8 to 10 from the dead body and handed over the same before the Investigating Officer, which was recovered by him under Ex.P.4 attested by P.W.7. P.W.11 is the Doctor, who did post mortem on the dead body on receipt of Ex.P.16/requisition given by the Investigating Officer for the same. During post mortem he found various symptoms as noted in Ex.P.17/post mortem certificate. The Doctor is of the opinion that the deceased died due to shock and haemorrhage as a result of multiple stab injuries, of which injuries 4 to 7 and 15 and their corresponding internal injuries are fatal in nature. The Doctor is also of the opinion that among the injuries referred to above, injury No.5 with it's corresponding internal injury is highly fatal in nature. As many as 21 external injuries were found. As Ex.P.17 is in English and forms part of the records, we do not propose to re-state the symptoms noted therein once again in this judgement to save time.
4. P.W.16 continued the investigation. During the course of the investigation, he came to know that A2 and A3 have surrendered before the Court of Judicial Magistrate No.6 and 7 respectively. Accordingly he moved an application for taking them into police custody. He arrested A1 in the presence of P.W.8 on 31.07.1994. A1 gave a voluntary confession statement at that time, the admissible portion of which is Ex.P.5. Pursuant to Ex.P.5, M.O.4, M.O.5 and M.O.12 came to be recovered under Ex.P.6 attested by P.W.8 and another. A1 was sent for judicial remand on 01.08.1994. He gave a requisition on the same day to the Chief Judicial Magistrate to record the statement of P.W.5 undersection 164 of the Code. He also gave another application before the same court to conduct a test identification parade. By order dated 09.08.1994 in C.M.P.No.4310/1994, the court ordered custody of A2 and A3 to the police. A2 and A3 were examined in the presence of P.W.10. A2 gave a voluntary confession statement at that time, the admissible portion of which is Ex.P.12, pursuant to which M.O.13 came to be recovered under Ex.P.13 attested by the same witnesses. A3, when examined in the presence of P.W.10 and another, also gave a voluntary confession statement, the admissible portion of which is Ex.P.14. Pursuant to Ex.P.14, M.O.14 came to be recovered. A2 and A3 were surrendered before the court after the expiry of police custody.
5. P.W.9 was the Judicial Magistrate in Coimbatore during the relevant time. He recorded the statement from P.W.5 under section 164 of the Code. Ex.P.8 is the statement of P.W.5 recorded under section 164 of the Code. P.W.9 also conducted a test identification parade on 08.08.1994. In the test identification parade, P.W.1 did not identify any of the assailants. But however, P.Ws.3 identified A1 to A3 correctly twice and P.W.4 identified A1 and A2 only correctly twice. P.W.5 also identified A1 to A3 correctly twice. Ex.P.11 is the proceedings of the Judicial Magistrate relating to the test identification parade held by him. P.W.16 sent the case properties to the court with a requisition to subject the same for chemical examination. P.W.14 is the Magisterial Clerk, who on receipt of Ex.P.18/requisition from the Investigating Agency, sent the case properties to the laboratory as an enclosure to Ex.P.19/court's letter. Ex.P.20 is the chemical examiner's report and Exs.P.21 and P.22 are the serologist's report. After completing the investigation, P.W.16 filed the final report against the accused in court on 29.08.1994 for the offence punishable under section 302 read with section 34 I.P.C.
6. When the accused were questioned under section 313 of the Code of Criminal Procedure on the basis of the incriminating materials made available against them, they denied each and every circumstance put up against them as false and contrary to facts. They would state that the case had been foisted upon them. No documentary evidence was brought before court at their instance. However two witnesses were examined on their side as D.Ws.1 and 2. D.W.1 in his evidence would state in substance as follows:
"I know A1; he resides close to my house; I have a tea shop; on 25.07.1994, A1 came to my shop; some time later, he left; four or five days later, police came and enquired about him in my shop; I told that A1 was in my shop; the police left stating that I must inform the police if A1 comes again; police came to my shop with A1's father; the next day A1 came to my shop and I surrendered him in the police station."
D.W.2 is none-else than A1 himself. He would state in his evidence as follows: (Translation by us) "I do not know anything about this case; D.W.1 has a tea shop in Pollachi; when I went to his shop, I was informed that I am being searched; I asked D.W.1 what to do?; D.W.1 surrendered me before the police; I was not arrested as spoken to by the police; the police sprinkled blood in three pants and shirts belonging to me; I have seen the deceased in the prison; he is a pick-pocket; P.W.5 is my friend; he had also been caught in several theft cases; the deceased is involved in two murder cases, one relating to an Engineer and the other relating to Mohammed Ali."
7. Mr.C.Deivasikamani learned counsel appearing for the appellants argued the following points:
(a) Since P.W.1, as the author of Ex.P.23, turned hostile, it must be held that there is no complaint at all before the police.
(b) Since P.Ws.1 and 2, examined as eye witnesses, have turned hostile, the evidence of P.Ws.3 to 5 which show that the deceased was last seen in the company of the accused; the accused were wearing blood stained clothes and that they were seen alone without the deceased being with them, cannot be looked into at all. In other words, once the eye witnesses turn hostile, then whatever may be the nature of the other evidence available on record, the court is prohibited from looking into that piece of evidence.
(c ) P.W.3 is not the legally wedded wife of the deceased and therefore her evidence that the deceased visited her on that night, should not be believed.
(d) P.W.4 had not produced any material at all to show that during the relevant time, he was employed as a watchman in a new construction site and therefore his evidence that he saw the accused and the deceased going together and the accused alone returning, cannot be believed.
(e) P.W.5 had not disclosed the information, that all the accused came to his house on that night with blood stained clothes, to anybody till about seven days when he was first examined by the police and therefore his evidence cannot be believed. In any event P.W.5 is shown to be harbouring an offender and since the police had failed to prosecute him, no weight could be attached to his evidence.
(f) When P.Ws.3 to 5 claim to know the accused, then there was no need to conduct a test identification parade to enable them to identify the accused and on this score also, the evidence of P.Ws.3 to 5 should be ignored.
(g) The place of occurrence is not established by the prosecution and therefore the prosecution must fail on that ground also.
We heard the learned Additional Public Prosecutor on these points.
8. Point (a): It is no doubt true P.W.1 turned hostile. Ex.P.23 is the complaint given by him and the same was recorded by P.W.15, the Sub-Inspector of Police. P.W.15's evidence shows that P.W.1 appeared before him at 11.45 p.m on the night of 21.07.1994 and narrated the incident, which he reduced into writing, in which he had taken his signature. P.W.1 also admits that on seeing a person lying with stab injury just opposite to his shop, he reached the police station and informed the police. He had not disowned his complaint. He was treated as hostile because he pleaded total ignorance about the assailants. P.W.1 admits his signature in that complaint. His signature is marked as Ex.P.1. Ex.P.24 is the printed first information report, which reached the Magistrate at 9.00 a.m on 22.07.1994. P.W.15 also says that he had given the copy of the first information report to P.W.1 under his acknowledgement. Ex.P.24 contains the signature of P.W.1. Both Exs.P.23 and P.24, as already stated, had reached the Magistrate at 9.00 a.m. We went through the cross examination of P.W.15 to find out whether the accused had gained any ground to even indicate that P.W.15 is either prejudiced or biased against all the accused or any of the accused. On such perusal, we find not even one material had come out in his evidence in cross indicating that there is a possibility of P.W.15 fabricating a false document. In other words, there is no material available in the evidence of P.W.15 to show that he has a personal prejudice or bias against the accused. In this context, we refer to the judgement of the Hon'ble Supreme Court of India in the case reported in 1996 S.C.C. Crl.Pg.657 (Pattu Lal Vs. State of Punjab). In that decided case P.W.1 turned hostile and denied that he lodged the first information with the police. He had also stated in his evidence that in the police station, his thumb impression was taken. Therefore the argument was that, no reliance at all should be placed on the first information report produced before court. In that context, the Hon'ble Supreme Court of India held that "the deposition of the Investigating Officer establishes the lodging of the first information report by P.W.1 and also the factum of producing the accused with blood stained clothes". The reflection of mind by the Hon'ble Judges in the above context is found in that judgement as follows:
"We do not find any reason to discard the evidence of the Investigating Officer to the above effect. No suggestion was given to the said Investigating Officer on behalf of the accused that he had any occasion to have animus against the accused, for which there was likelihood of fabricating false evidence by the said Investigating Officer against the accused."
In the light of the judgement of the Apex Court referred to supra and in view of the fact that P.W.1 had not disowned the contents of Ex.P.23, we are inclined to hold that though P.W.1 turned hostile, yet his evidence and the evidence of P.W.15 establish beyond doubt that P.W.1 appeared before him and gave the complaint on the night of 21.07.1994, in which the name of the first accused is mentioned and the name of the other two assailants are found shown as "two known assailants".
9. Point (b): The argument of the learned counsel for the appellant is that, when the eye witnesses turn hostile, the court should not look into any other materials available on record, even if they are in favour of the State, is really an astonishing argument. We asked the learned counsel to sustain this argument by any decided case laws, for which he expressed his inability. P.Ws.1 and 2 turned hostile. Does it necessarily exclude from our consideration the other legal materials available on record and our answer would be in the negative. P.Ws.3 to 5 have been examined by the prosecution to connect the accused with the crime. The evidence of P.W.3 would show that her husband last left in the company of all the accused; she came to know that her husband had been killed and that she went and saw her husband's dead body later. P.W.4 would state that he saw all the accused moving in the company of the deceased around 10.00 p.m on the night of the occurrence day; within a short point of time thereafter, he saw the accused alone going away and that the deceased was not in their company. He also saw the dead body of the victim in this case. P.W.5 would state that all the accused came to his house on the night of 21.07.1994 with blood stained clothes and he gave them shelter. How far the evidence of P.Ws.3 to 5 would connect the accused with the crime, we will discuss a little later in this judgement. Therefore prima facie the evidence of P.Ws.3 to 5 contain a legal material, which can be accepted or rejected. But to say that those materials should not be taken into account at all, when the eye witnesses turned hostile, would be too big a pill to swallow. Under these circumstances, we are inclined to reject the argument of the learned counsel for the appellants on this point and we proceed to hold that the evidence of P.Ws.3 to 5 can definitely be taken into consideration.
11. Point (c ), (d) & (e): Whether P.W.3 is the legally wedded wife of the deceased or not, in our considered opinion, would not and shall not affect her evidence, if it is otherwise found to be trustworthy. Whether P.W.3 is already married to another person and whether she has divorced him lawfully or not, would be totally extraneous to arrive at the just decision in this case. Equally, whether the deceased was already married to another woman and whether he had divorced her in accordance with law, is again not a matter which can be taken into account to decide the merits of the case. The argument advanced before us to disbelieve the evidence of P.W.4 is that, since he is not aware about the date on which the foundation was laid for the new construction and that he is not able to produce any records to show that he was in employment at that time as a watchman, is too very superficial and fallacious to leave an impact on his evidence, if it is otherwise found to be trustworthy. It is no doubt true that P.W.5 had not disclosed as to what he saw on the night of the occurrence to anyone till about seven days when he was examined by the police. How far his failure to disclose would affect his evidence, is a matter to be appreciated and decided. Simply because he failed to report about what he saw on the fateful night to anyone immediately, would not lead this court to close it's eyes straightaway. In other words, as already stated, his evidence has to be appreciated with care and caution before it is accepted.
12. Point(f): Whether the evidence of P.Ws.3 to 5 establish the guilt of the accused? P.W.11 is the Doctor, who did post mortem on the dead body. Ex.P.17 is the post mortem report. The medical evidence establishes beyond doubt that the deceased died due to homicidal violence. The question is, whether the prosecution had established that the accused alone are responsible for the crime? We are fully aware of the fact that in the information lodged before P.W.15 and marked in this case as Ex.P.23, the name of A1 alone is disclosed and the other two assailants are described as "known two assailants". In other words, the names of A2 and A3 are not found reflected in Exs.P.23 and P.24. P.W.1 turned hostile. However his evidence recorded before he was treated as hostile definitely shows that opposite to his shop he found a man lying with stab injury. P.W.2 also turned hostile. But however we perused his evidence till he was treated as hostile. That evidence shows A1 stabbing the victim in this case repeatedly. He would also state that he did not see what the other two persons standing with A1 did. But this witness would admit that he is a stranger to all the accused, both in his evidence in chief recorded till he was treated as hostile and also when he was cross examined by the counsel for the first accused before the lower court. If atleast this witness had participated in the test identification parade and identified the assailants, then probably we would have taken into account his oral evidence as referred to earlier till he was treated as hostile. However this witness had not participated in the test identification parade at all. Therefore we are not inclined to place any reliance at all on the oral evidence of P.W.2.
12 (a) Next we have the other set of evidence namely, P.Ws.3 to 5. P.W.3's evidence shows that she knows all the accused, as they used to visit her house often. She would state that at 9.30 p.m on 21.07.1994 all the accused came home and called her husband/deceased and accordingly he accompanied them. She would further state that around 1.00 or 1.30 a.m., the following morning, somebody knocked the door of her house and she asking as to who is there, the said person left an information that her husband is lying dead near the shop of Vellaisamy/P.W.1 and that she did not see the person, who left that information. She would further state that she went out and saw her husband lying dead. She had identified all the accused in the test identification parade held on 08.08.1994. In her evidence in cross, she would state that the place where her husband was lying dead is at a distance of one furlong from her house. No worthy cross examination has been done of this witness to discredit her evidence in chief as referred to earlier. Except putting suggestions that the accused did not take her husband on that night, no other material had been elicited in her evidence in cross to discredit her evidence in chief. We then have the oral evidence of P.W.4. He would state that around 10.00 p.m on 21.07.1994 as a watchman he was standing near the new construction of one Balan and at that time he saw A1 and A2 in the company of two more persons namely, the deceased and the accused. He would further state that he knows A1 and A2. He would also state that as A3 wanted to urinate on the bricks available near the construction area, he advised him not to do so. Thereafter all the four went towards Karunanidhi Nagar by taking the lane by the side of Chinthamani (Super market). He would further state that around mid-night on that day, he saw all the three accused running and coming to the main road from Karunanidhi Nagar. He saw the accused with blood stained materials. This evidence of P.Ws.3 and 4, if read together, definitely establish beyond doubt that the deceased was last seen alive in the company of the accused and after committing the crime, P.W.4 saw all the three accused alone moving away from the scene of occurrence for safety. P.W.9 is the Judicial Magistrate, who conducted the test identification parade on 08.08.1994. His evidence shows that P.W.3 identified A1 to A3 correctly twice and P.W.4 identified A1 and A2 correctly twice. We have already referred to the oral evidence of P.W.4, where he had stated that he knows A1 and A2 and the third accused is the person, who was in the company of the other accused. Simply because P.W.4 had not identified A3 in the test identification parade, it is not possible for this court to hold that A3 could not have participated in the occurrence at all, since A1 to A3 were seen in the company of the deceased when he left the house as spoken to by P.W.3. Therefore having the evidence of P.W.3 identifying A1 to A3 as the persons in the company of her husband when he was alive and the oral evidence of P.W.4 identifying A1 and A2 in the test identification parade, there cannot be any doubt at all in our mind that the prosecution had definitely established A1 to A3 as the persons with whom the deceased was last seen alive.
12 (b) We then have the oral evidence of P.W.5. His evidence shows that around the mid-night or so, his house door was knocked by someone. He opened the door and saw A1 to A3 standing outside his house with blood stained clothes. All the accused wanted him to provide shelter for the night. He initially hesitated. But however this witness was put under fear of death by all the accused and ultimately this witness gave shelter to all the three accused. The next day morning, even before this witness could wake up, it appears that all the accused had left the house. On a perusal of the evidence of this witness in cross examination, it is seen that this witness knows A1 for five years; he knows A2 and he met A3 in the prison when he was taken into custody regarding a political agitation. D.W.2 (A1) admitted that he knows P.W.5. Therefore the defence itself have brought out materials in the evidence of this witness in cross examination that all the accused are acquainted with P.W.5. This witness also identified A1 to A3 correctly in the test identification parade and we have the evidence of P.W.9/Judicial Magistrate to that effect. It may be true that this witness came to be examined by the police only on the 7th day after the occurrence. If the prosecution relies upon the evidence of this witness alone to connect the accused with the crime, then probably we would have had second thoughts in accepting his evidence. But we have the strong evidence of P.Ws.3 and 4, whose evidence definitely establish the movement of the deceased when he was alive in the company of the accused. In the face of such overwhelming evidence in the form of P.Ws.3 and 4, we are inclined to hold that the evidence of P.W.5 also deserves acceptance. This witness had given an explanation as to why he came to be examined only on the 7th day after the occurrence. We have already noticed that this witness was put under fear of death on the night of the occurrence day when he initially hesitated to give shelter. He would further state that on the next day morning when he saw in the newspaper that a murder had been committed, he was frightened and therefore left for Tiruppur for some work. It is settled position in law that all the witnesses, who see a dastardly crime may not act in an uniform manner. The response from every such person may vary from individual to individual. In this context we refer to the judgement of the Apex Court in the case reported in 1988 S.C.Pg.696 wherein it has been held as follows:
"13. "Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The court therefore, instead of doubting the prosecution case for want of independent witness must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability, if any, suggested by the accused. The court, however, must bear in mind that witnesses to a serious crime may not react in a normal manner. Nor do they react uniformly. The horror-stricken witnesses at a dastardly crime or an act of egregious nature may react differently. Their course of conduct may not be of ordinary type in the normal circumstances. The court, therefore, cannot reject their evidence merely because they have behaved or reacted in an unusual manner."
In view of the oral evidence of P.W.5 as to what made him to scare on seeing the death news in the newspaper on the next morning, as a result of which he left for Tiruppur, without any hesitation, we are inclined to accept his explanation for not reporting about the crime immediately after he saw the accused with blood stained clothes in his house. In this context it may be useful to note that P.Ws.3 and 4 were examined by the Investigating Officer during inquest. The inquest commenced at 2.30 p.m on 22.07.1994. The witness summons attached to the inquest report contains the names of P.Ws.3 and 4 and their signatures. This inquest report, along with the witness summons had reached the court at 6.30 p.m on 22.07.1994 itself. Therefore it would be idle to contend that these witnesses had been brought into the picture much later. In other words, the very fact that the witness summons and the inquest report had reached the court at 6.30 p.m on 22.07.1994 lends credibility to their oral evidence before court, about which we have referred to earlier.
13. It is next contended by the learned counsel for the appellants that if all the witnesses are already known to the accused, in other words if the identity of the assailants are not in doubt, there would have been no need to conduct any test identification parade at all enabling P.Ws.3 to 5 to identify any of the assailants. What is the evidentiary value of the test identification parade is held to be as follows, in the judgement reported in 2000 S.C.C. Crl.Pg.263 (State of Maharashtra Vs. Suresh).
"We remind ourselves that identification parades are not primarily meant for the court. They are meant for investigation purposes. The object of conducting a test identification parade is twofold. First is to enable the witnesses to satisfy themselves that the prisoner whom they suspect is really the one who was seen by them in connection with the commission of the crime. Second is to satisfy the investigating authorities that the suspect is the real person whom the witnesses had seen in connection with the said occurrence."
Under these circumstances, we are not impressed with the argument advanced by the learned counsel for the appellant that simply because P.Ws.3 to 5 were called to identify the accused in the test identification parade, it must necessarily follow that the identity of the assailants are not known to them. On the contra, we have found enough materials in the evidence of P.Ws.3 to 5 that they know the assailants personally. In the light of our discussion referred to above, we are not inclined to accept the argument of the learned counsel for the appellant that the evidence of P.Ws.3 to 5 should not be accepted at all. To put it more precisely, we hold that the evidence of P.Ws.3 to 5 establish beyond doubt the involvement of all the accused in committing the crime, resulting in the death of the victim. A faint argument is advanced by the learned counsel for the appellant that none of these witnesses are in a position to speak about the place of occurrence and therefore their evidence on that ground alone should be rejected. Again we have to only state that this argument does not deserve acceptance. None of these witnesses are eye witnesses to the crime. Therefore it would not be right for this court to expect them to speak about the place where the deceased was done to death. To make it very clear, we state here that all these witnesses speak about the movement of the accused in the company of the deceased prior to the crime and the movement of the accused alone after the crime was committed. Therefore we hold that the evidence of these witnesses could not be rejected solely on the ground that none of them are in a position to fix the place of occurrence. Under these circumstances, we have no doubt at all in our mind that the evidence of P.Ws.3 to 5 definitely establish the involvement of the accused as the persons responsible for the death of the victim in this case. The evidence of D.W.1 and D.W.2 is only to show that A1 was not arrested as spoken to by the police but in a different manner. We are not impressed with his evidence and in any event it has no impact on the oral evidence of P.W.3 to P.W.5.
14. Therefore we hold that the judgement under challenge is supported by legal materials and no exception could be taken to the finding of guilt rendered by the learned sessions Judge. Consequently finding no merits in the appeal it is dismissed. At this stage, the learned counsel appearing for the appellants made a request for leave to appeal before the Hon'ble Supreme Court of India. Since this judgement is based purely on appreciation of evidence, no question of law much less question of law of public importance arises for consideration by the Hon'ble Supreme Court of India. Accordingly leave refused.