Madras High Court
Murugan Alias Sakthivelmurugan vs State on 11 January, 2012
Author: P.Devadass
Bench: N.Paul Vasanthakumar, P.Devadass
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 11/01/2012
CORAM
THE HONOURABLE MR.JUSTICE N.PAUL VASANTHAKUMAR
and
THE HONOURABLE MR.JUSTICE P.DEVADASS
Criminal Appeal (MD) No.311 of 2010
and
Criminal Appeal (MD) No.420 of 2010
Murugan alias Sakthivelmurugan ...Appellant/
alias Kuchimurugan Accused No.1
in
Crl.A.No.311 of 2010
Muniasamy alias Chinnamuniasamy ...Appellant/
Accused No.2
in
Crl.A.No.420 of 2010
vs.
State, represented by
The Inspector of Police,
Kulathur Police Station,
Tuticorin District. ...Respondents
in both appeals
Prayer in Criminal Appeal No.311 of 2010
Appeal filed under Section 374(2) of
Criminal Procedure Code against the judgment of the learned Additional Sessions
Judge, (Fast Track Court No.I), Tuticorin, in S.C.No.111 of 2009 delivered on
23.03.2010.
Prayer in Criminal Appeal No.420 of 2010
Appeal filed under Section 374(2) of
Criminal Procedure Code by another accused against the judgment passed of the
learned Additional Sessions Judge, (Fast Track Court No.I) Tuticorin, in
S.C.No.111 of 2009 delivered on 23.03.2010.
!For Appellant in
Crl.A.No.311 of 2010 ... Ms.V.Jeyarani
For Appellant in
Crl.A.No.420 of 2010 ... Ms.G.Abarna
^For respondent ... Mr.K.S.Duraipandian
Addl Public Prosecutor
- - - - - - -
:COMMON JUDGMENT
P.DEVADASS,J.
1. Murugan @ Sakthivelmurugan @ Kuchimurugan and Muniasamy @ Chinnamuniasamy are A1 and A2 in S.C.No.111 of 2009 in the Court of Additional Sessions Judge (Fast Track Court No.I), Tuticorin.
2. A1 preferred Criminal Appeal No.311 of 2010, while A2 preferred Criminal Appeal No.420 of 2010 as against the judgment rendered by the said Sessions Court on 23.03.2010.
3. For convenient sake, throughout this judgment, we shall call the Appellants as A.1 (Criminal Appeal No.311 of 2010) and A2 (Criminal Appeal No.420 of 2010) as they were arrayed in the Trial Court.
4. In the said Court, they stood charged under Sections 341,294(b) and 302 IPC read with Section 34 IPC and Section 506(ii)IPC. The learned Additional Sessions Judge, found them not guilty under Section 294(b) IPC. However, found them guilty under Sections 341,506(ii) and 302 r/w 34 IPC.
5. A.1 and A.2 were sentenced as under:-
ACCUSED CONVICTION SENTENCE A.1 S.341 IPC Rs.500 in default one week simple imprisonment S.506 (ii) IPC One year Rigorous Imprisonment and fine of Rs.500/-
in default 3 months simple imprisonment S.302 r/w. 34 IPC Life imprisonment and fine Rs.1,000/- in default one year rigorous imprisonment A.2 S.341 IPC Rs.500 in default one week simple imprisonment S.506 (ii) IPC One year Rigorous Imprisonment and fine of Rs.500/- in default 3 months simple imprisonment S.302 r/w. 34 IPC Life imprisonment and fine Rs.1,000/- in default one year rigorous imprisonment
6. The learned Additional Sessions Judge directed all these sentences to run concurrently.
7. To bring home the charges, prosecution examined PWs.1 to 14, marked Exs.P1 to P22 and exhibited M.Os.1 to 9.
8. The case of the prosecution as set out in the said evidence proceed as under:
(i). One Subbiah's son is PW.1 Raja. Subbiah's brother is PW.2 Karuppasamy. They belong to Kalloorani Keelatheru in Tuticorin District.
Subbiah was its President. A1 and A2 and one Balasubramaniam @ Durai also belong to the said village. Balasubramaniam has been arrayed as A3. Since he is a Juvenile in conflict with law, his case is being enquired into separately by the Juvenile Justice Board, Tirunelveli in J.C.No.246 of 2008. In the present appeals, we are concerned with A1 and A2 only.
(ii). On 12.08.2008, Pathirakaliamman Temple festival was conducted in the said village. A1 to A3 came drunk and caused disturbance. Subbiah, as President, scolded them. On 14.08.2011, a Panchayat was held. Subbiah presided over the meeting. PW.3 Dharmaraj and others attended the meeting. A2 and Balasubramaniam were instructed not to have any contact with A1, otherwise they have to leave the village. A2, Balasubramaniam and their parents have accepted this and they have also tendered their apology. On account of this, the accused have nurtured ill-will towards Subbiah. They have also threatened to kill him. Subbiah told this to PW.1.
(iii). On 08.10.2008, at about 11 a.m, Subbiah was riding his T.V.S bike(M.O.5) towards Kulathoor on the Kulathoor-Kalloorani Main Road, keeping PW.1 as his pillian- rider. Near PW.6 -Madhavan's land A1, A2 and Balasubramaniam have waylaid Subbiah. Then A.1 and A.2 were wielding knives, while A3 was having an aruval. A3 shouted at Subbiah that if only he is alive, he will control them and cut him on his neck with aruval. Subbiah tried to ward it off by raising his hands. Subbiah ran for his life into the nearby land. However, A1 and A2 and Balasubramani chased him. PW.1 shouted at them. A1 and A2 stabbed Subbiah with knives on his back. Subbiah fell down. A1 and A2 stabbed him indiscriminately on his back, flank, cheek, abdomen. Again, Balasubramaniam cut him on his head, right-wrist, left wrist repeatedly with the Aruval. PW.1 witnessed the entire occurrence. PW.1 pleaded them to spare his father. However, they have threatened him to run away, otherwise they will kill him also. PW.1 ran to the nearby S.R.Salt Plant. Met his paternal uncle PW.2 Karuppasamy, a Watchman. Narrated the occurrence. In the meanwhile, the accused have escaped in Subbiah's Motor bike (M.O.5). P.Ws.1 and 2 came to the occurrence place. Subbiah was found dead.
(iv). On the same day, at about 11.45 a.m, at the Kulathur Police Station, PW.1 gave Ex.P1 statement to PW.13 Vijayarajan, S.I of Police. It was attested to by PW.2. PW.13 registered this case(Ex.P.18 F.I.R).
(v). On the same day, on receipt of a copy of FIR, PW.14 Inspector Dhanaselvan, took up his investigation. At the scene place, in the presence of PW.4 Velraj and one Marimuthu, he prepared Ex.P2 Observation Mahazar. Recovered blood-stained sand (M.O.2) and plain sand(M.O.3) under Ex.P3 Mahazar. Drew Ex.P19-Rough Sketch. Examined PW's 1 and 2 and other witnesses. Recorded their statement. In the presence of Panchayathars, held inquest over the dead body. (Ex.P.20 Inquest Report). Constable P.W.12 Kalyanasundaram handed over the dead body to Thoothukudi Medical College Hospital, Thoothukudi with Ex.P.13 requisition to conduct the Post-Mortem.
(vi). At the said Hospital, at about 04.10 p.m, P.W.10 Dr.Manoharan, conducted autopsy and found the following on the dead body. Ante mortem gapping heavy cut injuries :
1)6cms x 0.5 cm x bone deep(oblique) over the right parietal region 6 cms above the right ear.
2)8cms x 0.5 cm x bone deep(horizontal) over the right parietal region 4 cms behind the injury No.1.
3)6cms x 1 cm x bone deep(oblique) seen in the left frontal region.
4)12cms x 1 cm x bone deep(horizontal) seen over the left parietal and occipital region.
5)8cms x 3 cms x bone deep(oblique) in the dorsum of right hand.
6)6cms x 2 cms x bone deep(oblique) on the back of left forearm.
7)13cms x 3 cms x bone deep(oblique) in the front of left forearm. The underlying both bones found cut.
8)10cms x 3 cms x bone deep(oblique) in the front of left forearm 0.5 cm proximal to injury No.7.
9)6cms x 2 cms x bone deep(oblique) in the medial aspect of left forearm.
Ante- mortem gapping stab injuries :
1)6cms x 2 cms x cavity deep (oblique) over the right chest 0.5 cm medial to the nipple.
2)5cms x 0.5 cm x cavity deep (oblique) over the middle of lower chest.
3)4.5cms x 1.5 cms x cavity deep (horizontal) in the middle of right lateral chest.
4)4cms x 1.5 cms x cavity deep (oblique) in the right flank.
5)5cms x 1 cm x muscle deep (oblique) in the right flank 6 cms below the injury No.4.
6)4cms x 1.5 cms x muscle deep (oblique) in the right flank 1 cm behind the injury No.5.
7)5cms x 2 cms x cavity deep (oblique) in the left side of abdomen.
8)4.5cms x 0.5 cm x cavity deep (oblique) in the middle of left lateral chest.
9)4.3cms x 0.5 cm x muscle deep (oblique) above the left collar bone.
10)4cms x 1.5 cms x muscle deep (vertical) in the left side of neck.
11)4cms x 0.5 cm x oral cavity deep (oblique) in the left side of neck 0.5 cm below the left ear.
12)4cms x 1.5 cms x muscle deep (oblique) in the left side of neck 0.5 cm to the front of injury No.11.
13)4.7cms x 1 cm x muscle deep (oblique) over the back of left chest.
14)4.2cms x 1 cm x muscle deep (oblique) over the back of left lower chest.
15)5cms x 1 cm x cavity deep (horizontal) in the right loin.
The margins of all the stab wounds were regular. One end was sharp and another end was blunt.
Ante mortem incised wounds:
1)3cms x 0.5 cm over the right middle finger.
2)4cms x 0.5 cm in the right cheek.
Other findings:
Right lung-0.5c.m x 0.5 cm stab injury in the lower lobe. Left lung- normal and cut section pale.
Liver-0.5 cm x 0.5 cm stab injury in the right lobe and cut section pale. Right kidney-0.5 cm x 0.25 cm stab in the posterior surface with surrounding haematoma and cut section pale. Hyoid bone-intact. Stomach -3 cms x 0.5 cm x through and through stab wound seen in its anterior surface. Mesentry-2.5 cms x 0.5 cm x through and through stab wound seen near the transverse colon.
(vii). P.W.10 opined that the deceased would appear to have died of shock and haemorrhage due to multiple injuries sustained by him and death would have occurred 4 to 12 hours prior to autopsy.(See Ex.P14 Post-Mortem Certificate).
He also opined that the stab injuries could have been possible by weapons like M.O.1 (series) knives.
8. On 10.10.2008, at about 6 a.m, near the Subramaniapuram bus-stop, in the presence of PW.9- Marisamy and one Pattani, PW.14, arrested A1, A2 and Balasubramaniam. In his Ex.P.8 confessional statement, A.1 stated that if he is taken to certain places, he will show him the motor-bike and knife. A.2 gave Ex.P.9 disclosure statement that if he is taken to a particular place he will show him the knife. P.W.14 recorded them in the presence of said witnesses. Near a brickkiln near Maniapuram - Puliankulam road, A1 showed him a Green colour T.V.S bike(M.O.5). PW.14 seized it under Ex.P.10 Mahazar in the presence of said witnesses. A1 also produced him a knife from a place near Kalloorani Main Road. PW.14 seized it under Ex.P.11 Mahazar in the presence of said witnesses. From a place, near the said place, A2 produced a knife (M.O.1). PW.14 seized it under Ex.P12 Mahazar in the presence of said witnesses. PW.14 produced the accused to the Judicial Magistrate, Villathikulam. He remanded them to judicial custody. P.W.14 sent the case properties to Chemical Lab through Court. Obtained Scientific Reports. Completed the investigation. Filed the Final Report in the committal Court.
9. Under Section 313 of Criminal Procedure Code, the trial Court examined A1 and A2 on the incriminating aspects in the prosecution evidence. They have denied their complicity in this case.
10. The accused examined Ramesh Rajkumar and Kannan, staff of a Salt factory as DW's.1 and 2 to speak about the employment of PW.2 Karuppasamy and marked the Attendance Register as Ex.D1.
11. Appreciating the evidence of eye witness and other witnesses, the learned Additional Sessions Judge found A.1 and A.2 guilty of the charges and sentenced them as stated earlier.
12. According to Tmt.V.Jeyarani, learned counsel for the first accused (Criminal Appeal No.311 of 2010), the evidence adduced do not warrant recording of conviction. Consequently, imposing of sentence upon A.1 is flawed. Elaborating her submissions, the learned counsel contended that the evidence of the sole eye witness P.W.1 Raja, son of the deceased is highly interested. He cannot be an independent witness. His evidence was also not corroborated in material particulars. His evidence is not clear and cogent and he does not inspire confidence in him.
13. Mrs.Jayarani, learned counsel added that at the time of occurrence, P.W.1 was the pillion rider in the motor bike, driven by his father (deceased). The third accused was stated to have cut the deceased. However, there was no blood stains on the clothes of P.W.1. The accused have chased the deceased. P.W.1 was about 100 feet away from him. In such circumstances, he could not have seen the occurrence. When his father was assaulted, without saving him, P.W.1 ran away. He did not tell the occurrence immediately to his mother. His conduct is very strange and against ordinary course of human conduct.
14. Learned Counsel further contended that though in a case based on direct evidence, motive is not relevant, but when it is pleaded, it must be proved. In his complaint, P.W.1 stated that for the past three years, his father was the Village President, however, in his evidence, he had stated that it was two years. The motive suggested viz., the deceased scolded the accused at the Panchayat is neither sufficient nor grave enough to goad the accused to kill him.
15. Learned Counsel further contended that even as per the prosecution version, the mortal/fatal wounds were caused by the Juvenile Balasubramaniam. The overtacts attributed as against other accused are not grave enough. The Post-Mortem Doctor did not mention in his certificate that which injuries proved him fatal. Presence of blood stains on the knives was not mentioned in Exs.P.11 and P.12 seizure mahazars. However, P.W.9 Marisamy, the recovery witness stated that he had seen blood stains in the weapons. Blood grouping test on the blood stains in the knives also inconclusive. Thus, Section 27 Evidence Act Recovery introduced in this case falls to the ground.
16. Learned counsel also contended that the First Information Report in this case is doubtful. There was huge delay in the First Information Report reaching the Court. There are lot of gaps in its third page. At the end of this page, there is indication mark for P.W.1 to sign. All these aspects were also admitted to by P.W.1 and P.W.13 Vijayarajan, Sub-Inspector of Police. The evidence of D.Ws.1 and 2, Staff of a Salt Plant would show that P.W.2 Karupasamy was not employed on 8.10.2008, on which date, the First Information Report was stated to have been lodged. Thus, P.W.2 would not have immediately visited the scene place, seen the dead body, accompanied P.W.1 to the Police Station to lodge the First Information Report and attested it.
17. In fine, learned counsel for A.1 would submit that the charges as against A.1 have not been established beyond all reasonable doubts and thus, he is entitled to be acquitted.
18. Tmt.Abarna, learned counsel for A.2 (in Criminal Appeal No.420 of 2010) reiterated the submissions of Tmt.V.Jeyarani. She had also submitted that P.W.3 Dharmaraj, who has been examined to speak to the motive is closely related to the deceased. In Ex.P.14 autopsy certificate, it is mentioned that sun burns were seen over the thighs and upper limbs of the deceased. But, by the nature of the overtact attributed against the accused, such burns are not possible. She would submit that the guilt alleged as against A.2 also has not been brought home to the hilt. Thus, he also deserve for acquittal.
19. In replying to the learned counsels, for A.1 and A.2, Mr.K.S.Duraipandian, the learned Additional Public Prosecutor submitted that the defence counsels hoped much on certain minor discrepancies which do not make any dent in the prosecution case. The learned Prosecutor continued that the testimony of the sole ocular witness P.W.1 Raja is clear, cogent and sufficient enough to record the findings. In such circumstances, no corroboration is needed for his evidence. The injuries on the person of the deceased stand corroborated by the medical evidence of P.W.10 Dr.Manoharan. As many as 15 stab injuries were found on the dead body and the death was also due to the multiple injuries sustained by the deceased. Based on overwhelming evidence, oral, documentary and material objects, the trial Court has rightly convicted and sentenced them. There is nothing to upset the findings and sentences of the trial Court.
20. Deceased Subbiah is father of P.W.1 Raja. P.W.1 is the main witness. He is the only ocular witness to the occurrence. At the time of occurrence, no other witness except him was present. At that time, he was the pillion-rider of the moped (M.O.5) driven by his father on the Kalloorini - Kulathur Road.
21. Much attack has been unleashed on his evidence by the learned counsel for the appellants that he is a close relative of the deceased, he is not an independent witness and there was no corroboration to his evidence also.
22. Tmt.V.Jeyarani, learned counsel for A.1 cited JAVED MASOOD AND ANOTHER Vs. STATE OF RAJASTHAN (2010 CRI.L.J - 2020 SC) and submitted that in that case, the brother of the deceased was the eye witness to the occurrence and the Court doubted the veracity of his evidence.
23. The learned counsel cited yet another decision in DEVCHAND PUNAJI SUKTE & OTHERS Vs. STATE OF MAHARASHTRA (2010 CRI.L.J (NOC) 424 (Bombay) and submitted that in this case, since the evidence of the real brother of the deceased was not corroborated in material particulars and no independent witness was examined the Court did not place reliance on the evidence of the brother of the deceased.
24. Mrs.G.Abarna, learned counsel for A.2 cited BACHNI SINGH & ANOTHER Vs. STATE OF BIHAR (2010 CRI.L.J (NOC) 532 (Jharkhand) and submitted that when the sole eye witness was not chased by the assailants his conduct in running away from the scene place made the Court to doubt his credibility. In the case before us also P.W.1 was not chased by the appellants, however, he ran away from the scene place without saving his father.
25. The golden rule of proving a fact is not by the quantity of witnesses examined but by the quality of the witness examined. Our Adjective law - the Evidence Act does not prescribe particular number of witnesses, either minimum or maximum, to prove a fact. Number of witnesses examined is not the test. Even there may be a sole witness. But if his evidence is cogent, convincing and inspire confidence in him, reliance can be placed on his evidence and it can be acted upon.
26. In this respect it is apposite here to note certain observations of our Honourable Supreme Court made in BADRI Vs. STATE OF RAJASTHAN reported in AIR 1976 SUPREME COURT - 560. The Honourable Apex Court observed as under:
"Since under the Evidence Act no particular number of witnesses are required for the proof of any fact, it is a sound and well-established rule of law that quality and not quantity of evidence matters. In each case the Court has to consider whether it can be reasonably satisfied to act even upon the testimony of a single witnesses for the purpose of convicting a person."
27. In DALIP SINGH AND OTHERS Vs. STATE OF PUNJAB reported in AIR 1953 SC
- 364, it has been laid down as under:-
"4. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused,to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts."
28. In MASALTI AND OTHERS Vs. STATE OF UTTAR PRADESH reported in AIR 1965 SC - 202, the Hon'ble Supreme Court observed as under:-
"But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses .... The mechanical rejection of such evidence on the sole ground that is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct."
29. In ARUMUGAM Vs. STATE REP. BY INSPECTOR OF POLICE, TAMIL NADU (2009 I MLJ (CRL.) 48 (SC) the Honourable Supreme Court remarked that the plea relating to interested witness is a regular feature in almost every criminal trial and observed as under.
"We may also observe that the ground that the witness being a close relative and consequently being a partisan witness, should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dalip Singh and Others Vs. State of Punjab (supra) in which surprise was expressed over the impression which prevailed in the minds of the Members of the Bar that relatives were not independent witnesses. Speaking through VIVIAN BOSE, J it was observed:
"We are unable to agree with the learned Judges of the High Court that the testimony of the two eye witnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in Rameshwar Vs. State of Rajasthan AIR 1952 SC 54 at P.59. We find, however, that it unfortunately still persists, if not in the judgments of the Courts, at any rate in the arguments of counsel."
30. In ARUMUGAM (2009 I MLJ (CRL.) 48 (SC) as regards credibility of a witness, who has close relationship to the deceased the Honourable Apex Court observed as under:-
Relationship is not a factor to affect the credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the Court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible.
31. P.W.1 Raja the eye witness in this case is the defacto complainant also. It is the evidence of P.W.1 that on 8.10.2008, at about 11 a.m., when his father was riding M.O.5 motor bike, he was his pillion-rider and on the Kalloorini - Kulathur Road, near P.W.6 Madhavan's land, A.1, A.2 and the Juvenile BalaSubramaniam waylaid his father. First Balasubramaniam cut his father on his neck with Aruval. His father warded off the assault raising his hands and ran for his life into the land of P.W.6, the accused have chased him. A.1 and A.2 stabbed him with knives repeatedly on his back and when the deceased had fallen down, again A.1 and A.2 stabbed him repeatedly on his back, flank, cheek and abdomen. Subsequently, Balasubramaniam cut him with Aruval at various parts of his body. The deceased died of homicidal violence.
32. Thus, there were two occurrences. But, they were in quick succession. They were part of same transaction without any disruption of the initial occurrence on the Kallurani - Kulathur main Road. P.W.1 Raja had witnessed the entire occurrence. He had also shouted at the accused not to kill his father. P.W.1 was nearby wherein both the occurrences his father was mercilessly attacked by the assailants. These vital aspects relating to the overtact of each accused, manner of their assault have all found a place in Ex.P.1 complaint.
33. When the accused have stopped the motor bike, they were all wielding deadly weapons. P.W.1 was the pillion-rider. The deceased Subbiah was seated in the front seat in the motor bike was cut by Juvenile Balasubramanian with Aruval on his neck and the deceased had defensive wounds in his hands. He bled profusely. Already P.W.1 got down from the rear seat. His father ran for his life and he was followed by P.W.1 about 100 feets. In the circumstances, P.W.1 could not have blood stains on his cloth.
34. As many as 15 stab injuries were found on the person of the deceased. Some of them were very deep. The Post Mortem Doctor P.W.10 Manoharan had opined that the deceased would appeared to have died of shock and hemorrhage due to multiple injuries. The stab injuries are attributable to A.1 and A.2. These injuries are also part of the multiple injuries which have proved fatal to the deceased. Therefore, there cannot be any dissection of injuries as between A.1, A.2 and the Juvenile Balasubramaniam.
35. When the accused have assaulted the deceased, P.W.1 shouted at them. He pleaded them to spare his father. Then the accused were having devilish behaviour. They were all armed with lethal weapons. They have directed P.W.1 to flee away or else they will kill him also. By that time, his father had fallen down with mortal wounds.
36. In the circumstances, P.W.1 had rushed to the nearby salt plant to tell about the occurrence to his paternal Uncle P.W.2 Karuppusamy, since he is the close relative immediately available. The occurrence was outside the Village and it was on the land of P.W.6. So, in the circumstances, P.W.1 preferred P.W.2 than his mother to recount the occurrence. In the circumstances, it would be unwise to expect him to remain there and get killed.
37. Human behaviour depends upon the facts and circumstances of each case. Persons will react differently under different circumstances. No set pattern of human behaviour can be prescribed for all the circumstances. There cannot be any cut and derived formula for human beings to behave similarly under all circumstances. Faced with such grim situation, necessarily P.W.1 has to flee away from the scene place. In the circumstances, his running away from the scene of crime does not depict any unusual and a strange conduct on his part.
38. The weapon of offence used in the commission of the offence so far as A.1 and A.2 are concerned are knives. They having been spotted wielding and using such weapons has been spoken to by P.W.1. He cannot and could not identify which knife was wielded by A.1 and A.2. Based on the separate confessional statement of A.1 and A.2 the knives were recovered by the Investigation Officer P.W.14 Dhanaseelan from different places under Exs.P.11 and P.12 Recovery Mahazars.
39. P.W.9 Marisamy has testified as to the arrest and recovery of the weapons based on the disclosure statement of A.1 and A.2. In this case, this is the Section 27 Evidence Act recovery pressed into service by the prosecution. In his cross-examination P.W.9 stated that he has seen blood stains on the knives when they were seized. The Investigation Officer sent these weapons through Court to the chemical Lab for analysis. In the serology report, presence of blood stains in the weapon has been noted. In the circumstances, non mentioning of blood stains on these weapons in Exs.P.11 and P.12 had not shaken the Section 27 Evidence Act recovery. Further, in the light of the above, 'Blood Grouping Test' on the knives having been inconclusive is quite inconsequential a matter.
40. In a case based on the evidence of eye witnesses, motive is not necessary. However, when it is pleaded, it may be proved like any other fact. In a case based on eye witnesses, although motive is not necessary, it would add luster to the evidence of the prosecution witnesses.
41. However, it is not a condition precedent to act upon the evidence.
42. There used to be Kaliamman festival in the Village. On 12.8.2008, the festival was held. In the festival, A.1, A.2 and Juvenile Balasubramaniam, came drunk and indulged in vandalism. The deceased being the President of the Village reprimanded them. On 14.8.2008, a Panchayat was held. In the Panchayat, A.1 and A.2 were told of their bad behaviour and were warned not to have any more connection with the Juvenile Balasubramaniam. This aspect also has been spoken to by P.W.1. P.W.3 Dharmaraj also spoken to about himself and others having participated in this Panchayat meeting.
43. P.W.3 was the then Secretary of the Village Panchayat. So, his presence there is believable.
44. In the complaint, it is stated by P.W.1 that his father was the Village President for three years. However, in his evidence, he had stated that it was two years. Much criticism has been levelled by the learned counsel for the appellants on this difference in his evidence and complaint.
45. In this respect, it is apposite here to note the following observations of our Honourable Supreme Court made in STATE OF RAJASTHAN Vs. Smt.KALKI AND ANOTHER reported in AIR 1981 SC 1390 : (1981) 2 SCC
752).
"Normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there however honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so."
46. As to the motive prior to the occurrence, material evidence is available on record. This difference may be a minor discrepancy. It is not a material aspect in this case. It is a normal error of human memory. It would not make wholesale rejection of the prosecution evidence. Further, this case is based on direct evidence. This discrepancy do not affect the very credibility of the prosecution case.
47. There were sun burns over the thighs and upper limbs of the deceased. The occurrence was on 8.10.2008 at about 11 a.m. The body was lying in P.W.6 Madhavan's land. It was exposed to open sky till 3.30 p.m. Thereafter only the body was taken to the Hospital for Post Mortem. In his evidence, P.W.10 Dr.Manoharan also stated that the dead body having been kept for so long in the open sky is the reason for sun burns. We have proper explanation for the presence of sun burns on the dead body of the deceased.
48. P.W.10 Dr.Manoharan, also testified that the 15 stab injuries are possible by weapons like M.O.1 series knives. In this case, there is no major variance as between the oral evidence and the medical evidence.
49. The occurrence was on 8.10.2008, at about 11 a.m on the outskirts of Kalloorini Village. It is about 3 kms away from Kolathur Police Station. P.W.1 has lodged Ex.P.1 complaint at about 11.45 a.m. There is no delay in lodging the First Information Report.
50. From Kolathur Police Station, the Judicial Magistrate's Court, Vilathikulam is situate at a distance of 25 Kms. On 8.10.2008, about 12.15 p.m., the First Information Report was entrusted to P.W.11 Head Constable Ravindran. He handed over it at about 3 p.m. In his cross-examination, he had stated that from Kolathur Police Station, the bus stop is at a distance of one furlong. From there, by bus, he travelled 25 Kms to reach Vilathikulam. Thus, the delay in the First Information Report reaching the Court has been satisfactorily explained.
51. P.W.1 gave statement as to the occurrence to P.W.13 Vijayarajan, Sub- Inspector of Police, who had recorded it and P.W.1 signed in it. Ex.P.1 complaint consists of three pages. In the third page, the lines were written leaving space. That is not the pattern in pages 1 and 2. No uniform set pattern of writing be expected from every person. Method of writing differs from person to person.
52. In the third page of First Information Report, while mentioning that the accused have ran away with the knives and their moped, in between the words 'knives' and 'moped', the word 'vA;f'' (our) has been inserted. It appears to be omission of a word while writing and the omitted word was inserted in a routine manner. It is not insertion of any material point in the First Information Report. Further, in the First Information Report, before P.W.1's signature, there is an insignificant dot. P.W.1 had stated that while making his signature, he had put this small dot. There is nothing unusual about it.
53. Immediately, after the occurrence, P.W.1 rushed to the nearby Salt Plant, met his paternal Uncle P.W.2 Karuppasamy and narrated him the occurrence. Within 5 minutes, both came to the occurrence place and seen the dead body of the deceased.
54. P.W.2 is brother of the deceased. He had stated that he is employed in K.S.P.S Salt Plant. D.Ws.1 and 2 Ramkumar and Kannan, staff of K.S.P.S Salt Plant have been examined to speak that P.W.2 is employed in Sahayamatha Salt Plant and on 8.10.2008, he did not come to work and the Attendance Register has been marked as Ex.D.1.
55. Sahaya Matha Salt Plant and K.S.P.S Salt Plant are interconnected. Inside Sahaya Matha Salt Plant, K.S.P.S.Salt Plant is also situated. The main gate is common to both. On that day, P.W.1 also seen P.W.2 at the said gate. Ex.D.1 Attendance Register relates to Sahaya Matha salt plant. D.W.1 admits that there is separate attendance register for each salt plant. There is separate ledger and wage register for each salt plant. They were not produced. In Ex.D.1, there is no signature of P.W.2. The markings in Ex.D.1 in page No.81 and the relevant wage registers were all in the writings of one Mahadevan. But, he has not been examined. Therefore, much reliance cannot be placed on Ex.D.1 and the evidence of D.Ws.1 and 2.
56. Above all, P.W.2 has not been examined as an eye witness. He has examined to speak to his attestation of Ex.P.1 complaint. P.W.2 spoken about he having visited Kolathur Police Station along with P.W.1 for lodging the complaint and also his attestation in Ex.P.1. On the whole, the First Information Report is not doubtful.
57. P.W.1 may be a son of the deceased. At the time of occurrence, he is the only available witness, who had witnessed the entire occurrence. No foundation has been made to doubt his presence at the scene of crime. Nothing has been elicited from him that he has made false implication. His evidence is quite natural. It does not suffer from any material and major infirmity. He is trustworthy. His credibility cannot be doubted. He has clearly satisfied the test needed and expected for the acceptability of a sole eye witness to an occurrence. His evidence can be acted upon.
58. On the occurrence day, the accused have wrongfully restrained the deceased on the main road. They have threatened to kill P.W.1 with deadly weapons, thus, they have criminally intimidated him and they have killed the deceased.
59. By unimpeachable evidence, the charges under Sections 341, 506 (ii) and 302 r/w Section 34 of Indian Penal Code have been established against A.1 and A.2 beyond all reasonable doubts. In this view of the matter, the findings of the trial Court cannot be faulted.
60. In the result, both the Criminal Appeals are dismissed. The conviction recorded and the sentences awarded to the appellants by the learned Additional Sessions Judge (Fast Track Court No.I) Tuticorin in S.C.No.111 of 2009 on 23.3.2010 are upheld.
mvs.
To
1. Additional Sessions Judge, (Fast Track Court No.I) Tuticorin through the Principal Sessions Judge Tuticorin.
2. The Superintendent of Police Tuticorin District.
3. The Superintendent of Police Tuticorin District.
4. The Superintendent Central Prison Palayamkottai.
5. The District Collector Tuticorin.
6. The Inspector of Police Kulathur Police Station Tuticorin District.