Madras High Court
Kalaisamy Nadar vs State Of Tamil Nadu on 17 November, 1997
Equivalent citations: 1997CRILJ2389
Author: M. Karpagavinayagam
Bench: M. Karpagavinayagam
JUDGMENT M. Karpagavinayagam, J.
1. This appeal is directed against the Judgment in S.C. No. 39 of 1986 on the file of the Principal Sessions Judge, Ramanathapuram at Madurai, convicting the appellant for the offence under section 302, I.P.C. for having caused the death of one Mahalingam and sentenced to undergo imprisonment for life and also convicting for the offence under section 326, I.P.C. for having attacked P.W. 1 Kalaisamy Nadar and caused grievous injuries and sentenced to undergo rigorous imprisonment for one year. The sentences were directed to run concurrently.
2. The crux of the charge is that on 26-3-1985 at about 9 a.m. at Vandipathai near Mamsapuram, the appellant with Palai aruval attacked the deceased Mahalingam, while he was talking with P.W. 1 Kalaiswamy Nadar on the left leg and nape of the neck indiscriminately and while P.W. 1 intervened, he attacked him also and caused grievous injuries on the left index finger. With the result the deceased Mahalingam died at Madurai Rajaji Hospital at 2.30 p.m. on the same day.
3. The facts leading to conviction are as follows :
The appellant Kalaisamy Nadar and the deceased Mahalingam hail from Mamsapuram Village situate in the Mamsapuram Police jurisdiction in Srivilliputhur Taluk. The appellant at the relevant time was working as a Helper in Rajalakshmi Mill at Rajapalayam. The deceased Mahalingam, who was the Chief Secretary of Mamsapuram D.M.K. Party, was owning a licensed arrack shop in the same village. P.W. 2 Seeniappan was the Accountant working under him in the arrack shop. P.W. 1 Kalaisamy Nadar, aged about 71 years, is having some Palmirah Trees at Karucku thope near Mamsapuram Village. He used to go to his thope daily and collect toddy from his Palmirah trees and arrange to distribute the same to the various licensed toddy shops.
4. On 24-3-1985 P.W. 12 Isakkimuthu Sub-Inspector of Police attached to Prohibition Enforcement Wing at Rajapalayam Police Station arrested the appellant and four others for their having been found in possession of Toddy without any permit. The next day on 25-3-1985 they were produced before the Judicial Second Class Magistrate No. 1, Srivilliputhur, along with the Chargesheet for the offences under Section 4(1)(a) of the Tamil Nadu Prohibition Act. The appellant and others pleaded guilty before the Court and paid a fine of Rs. 50/- each. The judgments are Ex. P. 11 series. The appellant thought that he was booked along with others under prohibition offences only at the instance of the deceased Mahalingam, who is owning a licensed Toddy Shop. So, he had a grudge against him. Though the appellant was working as a Helper in the Rajalakshmi Mill, he did not attend the work from 24-3-1985 onwards.
5. On 26-2-1985 at 6.30 a.m. P.W. 1 Kalaiswamy Nadar went to Karukku thope and arranged through his servants to collect the toddy from the Palmirah trees. After finishing his work, he went to Mamsapuram Village to take coffee. It was at about 9 a.m. on the way, the deceased Mahalingam came on a cycle behind him. On seeing P.W. 1, the deceased Mahalingam stopped his cycle ahead of him and asked P.W. 1 'Vernacular matter omitted'. The deceased was on the cycle putting his right leg on the ground and the left leg on the left side pedal. At that point of time, the accused suddenly emerged in the scene coming from the western direction with Palai aruval. He exclaimed shouting at the deceased 'Vernacular matter omitted'. So saying, he gave a cut on the left leg. It fell on the back side of the left leg. The palai aruval is M.O. 1. As soon as he received the injury on the left leg, the deceased lost his balance and fell down on the right side in a pit. He further declared 'Vernacular matter omitted' and gave indiscriminate cuts on the nape and on the back of scalp. On seeing this unfortunate incident, P.W. 1, who was standing nearby intervened and prevented the accused from attacking the deceased further. In that process a cut fell on his left index finger. P.W. 2 Seeniappa Nadar, who was working as Accountant in the shop of the deceased Mahalingam and three other persons who happened to come on that side, also rushed to the scene. The appellant on seeing them, took to his heels.
6. P.W. 2 then went to Guhan Match Factory and with the help of P.W. 3 Madasami, who is working in that factory, contacted the Petrol bunk at Srivilliputhur requesting to send a Taxi. On receipt of the telephonic message, P.W. 4 Vijayan who is working in Jayaram Petrol Pump at Srivilliputhur, arranged to send a taxi to Mamsapuram driven by P.W. 5 Ayyanar, the driver. In the meantime, information was also sent to the wife of the deceased through the servant, who was working in the toddy shop belonging to the deceased.
7. P.W. 5 Taxi driver came to the spot on receipt of the message. P.W. 2 and the wife of the deceased took the victim in the said taxi and brought him to his family Doctor P.W. 13 Dr. Neerathilingam at Srivilliputhur. Dr. Neerathilingam P.W. 13 is having a clinic at Srivilliputhur under the name of Ponniah Hospital. On seeing the victim, who had injuries on the left leg, and on the nape, asked P.W. 2 and the wife of the deceased to take the victim immediately to some Surgeon either to Sivakasi or Rajapalayam. The wife of the deceased in order to give immediate and effective treatment, requested P.W. 2 to take the victim to Sivakasi instead of taking to Government Hospital at Srivilliputhur. So at the instance of the wife of the deceased, the victim was immediately taken to Sivakasi. P.W. 14 Srinivasan was a compounder in the Graham Nursing Home at Sivakasi. Since the Surgeon was not available, the victim was taken to Dr. Prabhakaran P.W. 15 who is having a Nursing home at Vembakottai road Sivakasi. At 10.45 a.m. on 26-3-85 P.W. 15 Dr. Prabhakaran examined the victim and found injuries on the leg and on the nape. He immediately gave First-Aid treatment by putting bandage in the wound and giving injection. He also advised the concerned to take the victim immediately to General Hospital since it was a medico-legal case. Ex. P-2 is the Trip sheet marked through P.W. 5, Taxi Driver.
7A. At 11.45 a.m. P.W. 16 Dr. Sakthivel attached to Srivilliputhur Government Hospital admitted the victim Mahalingam in the Hospital and examined him. He found the following injuries :
1. An oblique cut injury of 10" x 4" bony depth, starting from the middle of the back of right ear to angle of mandible on the left side vessels, muscles and Tendons on the rest back of neck cut and spine exposer.
2. Cut injury of 5 c.m. x 1 c.m. x 1 c.m. on the middle of Right ear lobe.
3. Cut injury of 7.5 c.m. x 3 c.m. x bony depth on the left side of occipital region of scalp front middle of back of left ear.
4. Cut injury of 8 c.m. x 5 c.m. x 3 c.m. on the upper part of back of left leg. Muscles exposer and cut.
After giving treatment, since his condition was serious, he was referred to Government Rajaji Hospital Madurai for further treatment. In the meantime he sent intimation to the Police Ex. P-13 and a requisition Ex. P-14 to the Magistrate to record Dying Declaration, since the injured was conscious at the time of examination. Before he was taken to the Madurai Hospital. P.W. 19 Mr. Ayyapan Judicial II Class Magistrate, Srivilliputhur, on receipt of Ex. P-14, came to the hospital at 12.20 p.m. The victim was conscious at that time and P.W. 16 Dr. Sakthivel was also present. After satisfying himself as to the consciousness of Mahalingam, he recorded the Dying Declaration Ex. P-15 from the deceased in which, P.W. 19 obtained a thumb impression from the deceased at the bottom of Ex. P-15. P.W. 16 Dr. Sakthivel also gave a certificate that he was conscious throughout when the Dying Declaration was recorded by the Magistrate. His certificate is Ex. P-16. Along with the victim P.W. 16 Doctor sent the Accident Register Ex. P-28 to the Rajaji Hospital at Madurai.
8. In the meantime, P.W. 1 went to Mamsapuram Police Station and gave a complaint to P.W. 23 Sub-Inspector of Police at 10 a.m. After recording statement from P.W. 1, P.W. 23 read over the same and obtained his signature. The complaint is Ex. P-1. He registered it in crime No. 78/85 under section 307, I.P.C. and arranged to send Express Reports to the Court as well as to Senior officials. Ex. P. 26 is the printed F.I.R. He then sent P.W. 1, who was found with injuries to Srivilliputhur Government Hospital along with the memo. He recovered M.O. 16 blood-stained dhoti and shirt MO. 17 from P.W. 1.
9. P.W. 25 Inspector of Police, attached to Srivilliputhur Police Station, on receipt of the message through wireless at 11.30 a.m. on 26-3-1985, received the F.I.R. copy at 11.45 a.m. and took up the case for investigation. At 12 noon he went to the Government Hospital at Srivilliputhur and recorded a statement from the victim Ex. P-29. He recovered M.Os. 7 to 10, M.O. 7 Lungi, M.O. 8 Shirt M.Os. 9 and 10 Towels from the victim deceased under Ex. P-3 attested by P.W. 10. Then he rushed to the spot at 2 p.m. He prepared the observation mahazar Ex. P.4 attested by P.W. 11. Thereafter at 3 p.m. he seized M.O. 11 blood-stained earth, M.O. 12 sample earth, M.O. 13 series a pair of chappals under Ex. P.5. He also drew a rough sketch Ex. P.30. He recovered the blood-stained clothes M.Os. 3 and 4 from P.W. 2, who was examined on the spot.
10. In the meantime, the appellant after the investigation was over went to Rajalakshmi Mill for attending his work at about 10. 30 a.m. on the same day. Since he came late, P.W. 9 watchman did not allow him to enter into the Mill for attending the work. The appellant told him at that point of time that he attacked the victim deceased earlier.
11. At about 12.15 p.m. P.W. 1 came to the Hospital with the Memo sent by P.W. 23 Sub-Inspector. P.W. 16 examined him and found the following injuries :
i. Incised wound of 2 c.m. x 1 c.m. x bony depth on the back of left Index Finger at the middle phalanx.
He gave his opinion that the injury is grievous.
12. Since the deceased died at 12.30 p.m. P.W. 17 Doctor who was on duty in the accidental ward sent death intimation Ex. P-18 to Police P.W. 20 constable attached to Mamsapuram Police Station received Ex. P. 18 and gave intimation to the Sub-Inspector at about 7.00 p.m. on the same day, P.W. 23 on receipt of Ex. P-18 altered the F.I.R. under Section 302, I.P.C. and sent reports to the concerned officials and Court. Ex. P27 is the Express Report. P.W. 25 took up further investigation after alteration of the F.I.R. He went to the hospital between 6.30 a.m. and 9.30 a.m. He conducted inquests on 27-3-1985 and examined P.Ws. 1 and 2 and others. The Inquest Report is Ex. P.-21. Then he arranged to send the body for post mortem through P.W. 21 Police Constable along with the requisition Ex. P- 19. The constable took the body to Dr. Thiagaraj P.W. 18, who conducted the post mortem at 10 a.m. on 27-3-1985. He found the following injuries :
1. An oblique vertical gaping cut injury back of neck cutting the pinna of the right ear for 4.5 c.m. through and through except the root 26 c.m. x 6 c.m. x bone deep. Lower end situated 8 c.m. below the left ear lobula. Skin flap downwards cutting underlying structures obliquely downwards and cutting the 6th cervical vertebreae including the vessels into cord level.
ii) An oblique transeverse cut injury back of scalp left side 8 c.m. x 2.5 c.m. x bone deep. Underlying occipital bone fractured for 5 cms-3 c.m. away from the back of root of left ear and 4 cm. above the wound No. 1.
iii) An oblique cut injury outer and back of the left leg 10 c.m. x 4 c.m. x bone deep cutting the left tibia up to marrow. Skin flap downwards.
He opined that the deceased would appear to have died of shock and haemorrhage due to multiple injuries sustained by him. P.W. 21 after postmortem was over, recovered the clothes of the deceased M.O. 14 and the waist card M.O. 15 from the body of the deceased. He then produced them in the police station and handed over the body to the relatives.
13. On 28-3-1985 at 8.00 p.m. P.W. 25 Inspector of Police arrested the accused at Pudupatti branch road and obtained a confession from him, the admissible portion of which is Ex. P-7. At that time his dresses also were found with blood-stains. So P.W. 25 recovered the blood-stained clothes M.Os. 5 and 6 under Ex. P. 6. At about 4.30 p.m. the accused took the police party to Karukku thope and took out M.O. 1 Palai aruval which was kept concealed inside the bush. This recovery Mahazar Ex. P-8 was attested by P.W. 11.
14. On 5-4-1985 P.W. 25 sent the MOs. under Ex. P-21 requisition to the Court for causing the same to be sent for forensical examination. P.W. 22 Court clerk on receipt of the M.Os. with the covering letter Ex. P.-22 sent them for examination. The Chemical Report is Ex. P.23 and Serological Report is Exs. P.24 and 25. After finishing investigation on 15-7-1985 P.W. 25 filed a chargesheet against the appellant for the offences under sections 302 and 326, I.P.C.
15. On committal learned trial Judge framed charges against the appellant as referred above and questioned the accused. The accused pleaded not guilty and claimed to be tried.
16. To substantiate the charges framed against the appellant, the prosecution examined P.Ws. 1 to 25, filed Exhibits P-1 to 31 and marked Exhibits Mos. 1 to 17. On the side of the defence Ex. D 1 was marked. After the evidence was over, the appellant was questioned under Section 313, Cr.P.C. with reference to the incriminating materials brought on record. The appellant denied having participated in the commission of the offence and stated that he was taken by the Police on 26-3-1985 at 10.00 a.m. when he was in his house and on the next day i.e. on 27th his wife sent a telegram regarding his illegal detention in the police station and that he was innocent and he had no connection whatsoever with the commission of the offence. Regarding the question put to the accused for his having paid a fine for the offence under section 4(1)(a) of the Prohibition Act, he stated that though he was having a permit to have the possession of today, he paid the fine in order to avoid the agony of a trial. Even though he was having a permit in his name Ex.D-1 was marked.
17. On termination of the trial, learned Sessions Judge, on appraisal of the evidence oral and documentary adduced by the prosecution, came to the conclusion that the prosecution has established the case beyond doubt and thereby convicted the accused for the offences referred to and sentenced him thereunder. Being aggrieved over this verdict, the present action has been resorted to by the appellant by filing an appeal before this Court.
18. Mr. A. A. Selvam, learned Counsel for the appellant effectively and strenuously contended that the prosecution has miserably failed to prove its case after having read over the entire evidence before this Court. He would also submit that the case of the prosecution as projected through the dying declaration recorded by the Police Officer and the Magistrate is quite contrary to the case of the prosecution as put forward through P.Ws. 1 and 2 ocular witnesses. He would also further submit that the blood-stained found scattered in various places at the spot would also falsify the version as spoken by P.Ws. 1 and 2. It is also submitted by the counsel for the appellant that the narration of the events as referred to in the evidence of P.Ws. 1 and 2 would be so artificial and does not merit acceptance. To put it in a nutshell, counsel for the appellant contended that the prosecution has not adduced any acceptable evidence to establish his case beyond reasonable doubt.
18A. Per contra, Mr. Elango, counsel representing the Public Prosecutor, while countering the submissions made by the counsel for the appellant said that the evidence of P.Ws. 1 and 2 could be relied upon in view of the consistent versions given by them, both in the F.I.R. and in the evidence and that the dying declaration recorded by the Police Officer and the Magistrate from the deceased also would strengthen the case of the prosecution inasmuch as it is established that the appellant alone has committed the offence. He would also further submit that even assuming that the evidence of P.Ws. 1 and 2, who are chance witnesses, is to be ignored or rejected in toto, the dying declaration recorded by the Police Officer at 12.10 on the same day and the dying declaration recorded by the Magistrate at 12.20 p.m. would make it clear that the conviction imposed upon the appellant by the trial Court is legal and the verdict against him given by the trial Court is unassailable.
19. We have carefully considered the divergent contentions urged by the respective counsel. The materials collected by the prosecution and produced before the Court are as follows :
i. Ocular testimony of P.Ws. 1 and 2 ii. The Dying Declaration recorded by the Inspector of Police as well as the Magistrate.
iii. The medical evidence adduced by P.Ws 16 and 18.
iv. Recovery of the weapon on the confession by the accused.
v. The blood group of the deceased found in the blood-stains in the clothes of the deceased tallies with the blood group of the blood from the clothes recovered from the appellant.
20. On the basis of these materials, the trial Court relying upon the same had imposed the conviction and sentence, which is challenged in this appeal. As rightly pointed out by Mr. Selvam, learned Counsel for the appellant that there is contradiction between the dying declaration and the ocular testimony witnesses in relation to the sequences of the occurrence. According to Ex. P.-15 the dying declaration recorded by Magistrate the deceased went to the well for taking bath at 9 a.m. on 26-3-1985 and on his way to the well, the accused came and cut on the back of the scalp and on the nape of the neck and when he ran from the place, after leaving the cycle there itself, the accused chased him and gave another cut on the left leg. Whereas, the evidence of P.W. 1 as projected through Ex. P.-1 the complaint and the deposition given before the Court is that the deceased was in conversation with P.W. 1 while he was going on cycle and at that time, the accused suddenly appeared there and gave a cut on the back of the left leg and on receipt of the injury, the deceased fell down on the roadside and that then the accused inflicted incriminating cuts on the nape and head. So on the basis of this contradiction, counsel for the appellant requests this Court to reject the evidence of P.Ws. 1 and 2, the ocular testimony, in view of the vital contradictions found available between the dying declaration and the deposition. He also further pointed out that the wound certificate and the post-mortem certificate would show that there is a serious injury with considerable depth on the back of the left leg of the deceased and the accused, who was coming from the opposite direction could not have caused that injury with the Palai aruval by aiming at the back of the left leg and that too this cut definitely could not have caused this much of depth. So, the dying declaration given by the deceased to the Magistrate would be more probable while considering the medical evidence as referred to in the deposition of P.Ws. 16 and 18. He further pointed out that there is no necessity for P.Ws 1 and 2 for being present there and they are only chance witnesses. So in view of the direct conflict between the evidence of ocular testimony and the medical evidence especially when it is not in consonance with the dying declaration, according to the counsel for the appellant, the evidence of P.Ws. 1 and 2 becomes suspicious and highly doubtful.
21. Per contra, Mr. Elango, learned Government Advocate would vehemently contend that P.Ws. 1 and 2 may be chance witnesses, but they have given the reasons both in the FIR and in the deposition for their coming to the spot. According to P.W. 1, he came to Mamsapuram after finishing his work at Karukku thope, in order to take coffee, at Mamsapuram Village. P.W. 2 Seeniappan, who is the accountant working in the Toddy shop belonging to the deceased, came to the spot on the way to the Toddy shop after taking bath in the well at Karukku thope. So it is not as if there was no reason for these people to come near the place. While submitting these things, Mr. Elango, in the alternative contended that even if the evidence of P.W. 1 and P.W. 2 is ignored in toto, in view of the fact that there were some infirmities as pointed out by the counsel for the appellant, the two dying declarations, which have been recorded by the Magistrate and the Investigating Officer would clearly prove the case of the prosecution to the effect that the appellant alone is the perpetrator of the crime.
22. In order to substantiate the submissions, Mr. Elango, counsel for respondent cited two decisions, 1996 (2) SCC 206 : (1996 SCC Cri 906) (State of Madhya Pradesh v. Mohan Lal and 1996 (1) SC (Criminal) 446 : (1996 SCC (Cri) 686) in the case of (State of Uttar Pradesh v. Ameer Ali) in which it is held that the conviction can be based solely upon the dying declaration, provided, if it is established that the same is voluntary and true. There is no dispute with this proposition of law. But, we must, at this stage, point out that these citations could not be applicable to the present case, because, in those cases the only evidence available before the court was the dying declaration. In those circumstances, the Court considered the genuineness and voluntariness of the dying declaration and came to the conclusion that the dying declaration could be acted upon to base the conviction. But in the instant case, we have dying declaration and the testimony tendered by P.Ws. 1 and 2, who had witnessed the occurrence. Now the question is which version is to be believed, especially, when there are two versions relating to the sequence of events, narration of occurrence as projected by the two sets of materials. At this stage, we may point out that the evidence of P.Ws. 1 and 2 who speak to the fact that the occurrence had taken place at about 9-00 a.m. on 26-3-1985 when the deceased was going to take bath in the well and when P.W. 1 was talking with the deceased, the appellant came with Palai aruval and gave indiscriminate cuts on the deceased. The complaint had been given by P.W. 1 to the Sub-Inspector of Police P.W. 23 immediately after the occurrence. This was recorded by P.W. 23 at about 10-30 a.m. The distance between the scene of occurrence and the police station is only six kilo metres. The original records would show that the FIR which has been registered under S. 307, IPC has reached the Court at 4-00 p.m. on the same day. The earliest document which has been registered by P.W. 23 and the statement from P.W. 1 would go to show as to how the occurrence had taken place. This version was also corroborated by P.W. 2. Both P.Ws. 1 and 2 would give the explanation as to why they had to come to the spot at the relevant time. P.W. 1, who is aged about 71 years, is neither interested in the deceased nor having any enmity towards the accused. Moreover P.W. 1, who was in conversation with the deceased, while he saw the accused being attacked, be immediately intervened, as a result of which, he sustained grievous injury. For this injury he was examined by Dr. Sakthivel P.W. 16 at 12-15 p.m. on the very same day. The evidence of P.W. 1 is fully in consonance with his version found in Ex. P-1. So, the reading of the deposition of P.W. 1 would inspire confidence in the mind of this Court to hold that P.W. 1 is the witness of truth. Of course, P.W. 2 may be termed to be an interested witness, for the reason that he is working as Accountant in the Toddy shop belonging to the deceased. But it is well settled law that merely because an eye witness is interested in the victimation party, evidence of this witness cannot be rejected in toto; but it must be approached with care and caution in order to exclude the possibility of any false implication. So in the light of the above proposition, if we go through the evidence of P.W. 2, we have no hesitation to accept his evidence as reliable, especially, when his evidence is completely supported by P.W. 1.
23. The next question is what is the importance that could be attached to the dying declarations given by the deceased to the Magistrate as well as to the Police Officer P.W. 25. The Inspector of Police, after receipt of the information at 11-30 a.m., collected the FIR from the constable at 11-45 a.m. and straightway went to the hospital at Srivilliputhur. He recorded a statement from the deceased, who was in a critical condition. Though, according to him, Doctors were available, he did not think it fit to get the document attested through the Doctor. Admittedly, P.W. 25 did not obtain any certificate from P.W. 16 Doctor, who was available there. The reason is obvious. At that time, it is not known whether P.W. 25 was informed by the Doctor that he was likely to die. So as an investigating Officer, on being informed by P.W. 23 Sub-Inspector of Police and on getting the FIR copy, he recorded the statement from the deceased under S. 161, Cr.P.C. Further more it is to be noted that though the occurrence had taken place at 9 a.m. on 26-3-1985, he was admitted in the Government Hospital only at 11-45 a.m. The evidence adduced by P.W. 5 Driver would make it clear that they were not interested in giving any complaint to the Police station, but they want to have several Doctors in order to see that immediate and effective treatment was being given to the deceased to save his life.
The victim was taken to the Family Doctor first and then from there, on his advice he was taken to Sivakasi for meeting a Surgeon. Since he was not available, another Doctor who was at Sivakasi in Vembakottai road gave first aid treatment and advised the parties to take him to Government Hospital since it was a medico-legal case. Only thereafter the victim deceased was taken to the Government Hospital at Srivilliputhur at 11-45 a.m. The first dying declaration recorded by the Inspector of Police at 12-10 p.m. is Ex. P-29. P.W. 19 Magistrate recorded the dying declaration Ex. P. 15 between 12-20 and 12-25 p.m. Of course in Ex. P-29 which was recorded by the Inspector of Police, the deceased gave the narration of events in a general way. The relevant portions of the statement of Ex. P. 29 is as follows :
But while he gave a statement Ex. P-15 to the Magistrate he made the following statement :
It must be borne in mind that though the deceased was conscious throughout while these dying declarations were recorded by the Inspector of police and the Magistrate and as referred to in the evidence of the Doctor P.W. 16, that the deceased who was driven from pillar to post in order to take effective treatment by going to Sivakasi and then by coming back to Srivilliputhur and he must be in a state of shock. That may be the reason why he was not consistent in the dying declarations made before the Police Officer and the Magistrate. But one thing is clear. The contents of Ex. P-1, Ex. P-15 and Ex. P-29 would make it apparently clear that the assailant is the appellant. The weapon is M.O. 1 Palai aruval and the place of occurrence is at the spot as pointed out by the witnesses. So in these circumstances, we need not give much importance to the dying declarations Ex. P-15 and Ex.P-29 which are also not consistent. The inconsistency is not because of the fact that the deceased had not come out with true version but for the reason that he was taken to different hospitals and he was in a state of shock, he must have given these statements. So, we are of the considered view that the evidence of the witnesses P.Ws. 1 and 2 could be given due importance, in view of the fact that their testimony is cogent and consistent which also would lend corroboration of the earlier document Ex. P-1. Of course, the counsel for the appellant, pointed out as to how the Palai aruval could cause injury on the back of the left leg when he comes in the front of the deceased. But, as could be seen from the evidence, the weapon is not vettu aruval. It is in crescent shape. So when the accused came for the purpose of attacking the deceased, to make him fall the accused would have used the weapon in such a way as to cause injury on the back of the leg which was placed on the left pedal of the cycle. But of course, these things have not been culled out from the evidence of the Doctor. But the fact remains that after receipt of the leg injury, he fell down on the pit and thereafter he gave indiscriminate cuts on the nape, scalp etc. This aspect of the evidence adduced by P.Ws. 1 and 2 are also corroborated by medical evidence. No doubt it is true that the blood was found scattered in 2 or 3 places at the spot. It may be probable that after P.W. 2 went for the purpose of informing the wife of the deceased and for arranging the taxi, the other must have removed him from the pit and took the victim to a safer place. However, even if it is assumed to be an infirmity, in our view this cannot affect the core of the prosecution. Yet another circumstance of vital importance is the recovery of the weapon and the blood-stained clothes. The Serologist's report Ex. P-24 would make it clear that the blood group of the deceased as found in the blood-stained in the clothes of the deceased would tally with the blood group found in the clothes recovered from the accused. Though the blood group on the weapon was not able to be detected, as per the report, the blood contained on the weapon M.O. 1 was found to be human. So in these circumstances, especially when there are overwhelming materials through P.W. 1 and P.W. 2, medical evidence of P.Ws. 16 and 18 and the Serologist's report it would go to show that the accused is the real culprit who has committed this crime. For the forgoing analysis, we have no hesitation to hold that the conviction and the sentence imposed upon the appellant on the reasonings given by the trial court is proper and valid in law. Therefore, the conviction and sentence is confirmed. In the result the appeal is dismissed.
24. The appellant is directed to surrender to Judicial custody to undergo the unexpired portion of the sentence.
25. Appeal dismissed.