Madras High Court
Ganesan vs State Represented By on 30 August, 2018
Bench: M.M.Sundresh, N.Sathish Kumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 30.08.2018
RESERVED ON : 24.08.2018
DELIVERED ON : 30.08.2018
CORAM
THE HONOURABLE MR.JUSTICE M.M.SUNDRESH
and
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
CRIMINAL APPEAL (MD).No.177 of 2008
Ganesan .. Appellant / Sole
Accused
Vs.
State represented by,
The Inspector of Police,
Pathamadai Police Station,
Tirunelvei District.
(Crime No.15/2007) .. Respondent / Complainant
PRAYER: Appeal is filed under Section 378(4) of the Code of Criminal
Procedure against the Judgment and Sentence passed by the learned Principal
Sessions Judge, Tirunelveli, Tirunelveli District in S.C.No.250 of 2007,
dated 26.02.2008.
!For Appellant : Mr.V.Kathirvelu,
Senior Counsel,
for Mr.S.T.Sasidharan Tamilkani
^For Respondent : Mr.R.Anandraj
Additional Public Prosecutor
:JUDGMENT
[Judgment of the Court was delivered by N.SATHISH KUMAR,J.] The appellant is the sole accused in S.C.No.250 of 2007, on the file of the learned Principal Sessions Judge, Tirunelveli. He stood charged for the offences punishable under Sections 302 and 506(ii) I.P.C. By Judgment dated 26.02.2008, he was convicted under Section 302 I.P.C. and sentenced to undergo imprisonment for life and to pay a fine of Rs.5,000/-, in default, to undergo rigorous imprisonment for three years and he was also convicted under Section 506(ii) I.P.C. and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,000/-, in default, to undergo simple imprisonment for six months and both the sentences shall run concurrently. Aggrieved over the said conviction and sentence, the appellant has come up with this Criminal Appeal.
2. The case of the prosecution, in brief, is as follows:-
The deceased Ponnaiah Asari and the accused are residents of Pathumadai village. They belonged to carpenter community. P.W.1 and P.W.2 are the sons of the deceased Ponnaiah Asari. P.W.3 is a resident of the same village. In the village, there is a community temple managed by the carpenter community. As the Kumbabisekam for the temple was not conducted for a long time, it was decided by the villagers to conduct the temple Kumbabisekam. In order to oversee the above work, Ponnaiah Asari was elected as village head by the villagers in the meeting held on 11.02.2007 at about 01.00 p.m. When the meeting was about to conclude, the accused objected the deceased being elected as the head of the village to oversee the temple Kumbabisekam. He insisted that only his junior paternal uncle, by name Sorimuthu Asari should be elected as a head of the villagers. During such objection, there were some heated arguments between the accused and the deceased. He also threatened that the deceased cannot head the Kumbabisekam. However, the villagers admonished the accused for his behaviour.
2.1. When the matter stood thus, on the same day, at about 06.30 p.m, the deceased went to the house of one Avudaiappan Asari, which was located near the Mupidathi Amman temple. Both the deceased and Avudaiappan were sitting in front of the house of Avudaiappan. At the relevant point of time, after finishing their worship, P.Ws.1 to 3 were also sitting together in front of the temple, which is 20 feet away from the place, where the deceased and Avudaippan were sitting. At that time, the accused came near to the deceased and shouted as to how he could conduct the Kumbabisekam and by saying so, he took M.O.1- Aruval and cut the deceased on his neck, head and shoulder indiscriminately.
2.2. On seeing the above incident, P.Ws.1 to 3 and others rushed to the place by shouting not to cut the deceased. But, the accused, by brandishing the Aruval, threatened them also. Immediately, the accused fled away from the place of occurrence. Thereafter, P.W.2, P.W.3 and others took the deceased to the hospital in an Auto belonged to P.W.5, one Velu. P.W.7, the medical officer attached to the Government Hospital, Cheranmahadevi, examined the deceased at hospital and declared dead at about 7.15 p.m. and sent Ex.P.4, death intimation to the police station.
2.3. On information from the hospital authorities, P.W.10, the Sub Inspector of Police, rushed to the hospital and recorded the statement of P.W.1 under Ex.P.1. On returning to the police station, he registered a case in Crime No.15 of 2007, for the offences punishable under Sections 302 and 506(ii) of IPC. Ex.P.1 is the complaint and Ex.P.9 is the F.I.R. Then he forwarded both the documents to the Court through P.W.11, Head Constable and a copy of the same to P.W.13 for investigation.
2.4. Taking up the case for investigation, P.W.13 proceeded to the place of occurrence. He examined PWs.1 to 3 and recorded their statements. Then, he conducted inquest on the body of the deceased at 10.00 p.m., on 11.02.2007 in the presence of the panchayatars and also took photographs with the help of the photographer and sent requisition to the medical officer to conduct autopsy. Then, he forwarded the dead body for post-mortem.
2.5. P.W.8-the medical officer attached to the Government Hospital, Ambasamudram, conducted autopsy on the dead body of the deceased on 12.02.2007 at 12.00 a.m. She noticed the following injuries:
?1. An oblique injury of 40x7x8 c.m. starting from behind the left and extending to the occipital region and through the back of neck and upto the right cheek. The underlining muscles and bones were also cut and brain was seen through the gap.
2. An oblique cut injury of 6x3x1 c.m over the back of right ear exposing the underlining bone.
3. An oblique cut injury of 12x5x1 c.m. In the occipital region and underlining bone was also cut. This injury was located 3 c.m. above the 1st injury.
4. A cut injury of 14x5x1 c.m. over the left parietal region with underlining parietal bone cut.
5. Two cut injuries 5x2x1 c.m and 4x1x1 c.m. over the back of right upper arm.
6. Two cut injuries of 5x2x1 c.m. And 4x2x1 c.m. over the back of the right shoulder.
7. A cut injury of 3x2x1 c.m. over the front side of right shoulder.
8. An oblique cut injury 8x5x6 c.m. over the back just above the right scapula.?
2.6. P.W.8 issued post-mortem certificate-Ex.P.5 and also opined that the deceased would appear to have died of complications of multiple injuries.
2.7. P.W.13, Investigation Officer, in continuation of the investigation, went to the place of occurrence and prepared an observation mahazar-Ex.P.2 and a rough sketch - Ex.P.13, in the presence of P.W.4 and other witnesses. Then he seized bloodstained earth, sample earth and blood stained chappals under the mahazar in the presence of the witnesses. On 12.02.2007, at about 1.30 p.m. he arrested the accused in the presence of P.W.9-Krishnan and one Murugan and recorded his confession and on such arrest, the accused gave a voluntary confession, in which, he disclosed the place, where he had hidden a blood stained shirt (M.O.7) and Aruval (M.O.1).
In pursuance of the same, he took P.W.13 and the witnesses to the said place and produced the half sleeve blood stained shirt (M.O.7) and Aruval (M.O.1). P.W.13 recovered the same under a Mahazar. Then, he returned to the police station along with the accused and the material objects. Then, he forwarded the accused to Court for judicial remand and handed over the material objects for chemical examination. Thereafter, P.W.13 examined the medical officer, collected medical records and finally, laid final report against the accused.
3. Based on the above evidence and materials, the learned trial Judge found the accused guilty for the offences under Sections 302 and 506(ii) IPC and convicted and sentenced the accused for the offences as stated in the first paragraph of this judgment. Aggrieved over the same, the present appeal has been filed.
4. We have heard the learned counsel appearing for the appellant, the learned Additional Public Prosecutor appearing for the respondent and also perused the records carefully.
5. The main contention of the learned counsel for the appellant is that the evidence of P.Ws.1 to 3 are unreliable and their presence in the place of occurrence is doubted. No bloodstained clothes were recovered from P.Ws.1 to 3 and also no blood stains were recovered from the Auto, in which, the deceased was carried to the hospital. It is the further contention of the learned counsel for the appellant that as per the prosecution version, the deceased and Avudaiappan were sitting facing south, but the injuries on the deceased were found on the back of the head. That being so, the deceased had been attacked only from the back and not as narrated by the eyewitnesses. In that event, witnessing the occurrence by the eye witnesses from the temple is also highly impossible. The rough sketch- Ex.P.13 does not indicate the back door in the house of Avudaippan. Therefore, the accused coming from the back door, as evident by the Investigation Officer, is also doubted.
6. It is also the contention of the learned counsel for the appellant that there were left side and right side injuries. Both the injuries were not caused by the accused, particularly when the deceased was sitting facing south. This creates serious doubt about P.Ws.1 to 3's presence in the place of occurrence.
7. It is the further contention of the learned counsel for the appellant that Avudaippan with whom the deceased was discussing has not been examined by the prosecution. Similarly, one Sorimuthu, whose favour the accused objected the deceased being elected also has not been examined. That apart, it is the contention of the learned counsel for the appellant that the FIR itself is doubtful. P.W.10, in his evidence, has stated that he has recorded the oral statement of P.W.1, but, whereas, in cross-examination, he denied the handwriting in Ex.P.1. Further, there was 2 + hours delay in despatching the FIR to the Court. The delay also assumes significance. Hence, it is submitted that the entire prosecution itself is doubtful. In this case, no other ocular witnesses were examined and only the relative witnesses were examined. That itself clearly leads a doubt about the entire prosecution version. The evidence of the Investigation Officer also makes the prosecution case doubtful. Hence, it is submitted that the appellant is entitled to benefit of doubt.
8. The learned Additional Public Prosecutor submitted that the presence of P.Ws.1 to 3 near the place of occurrence is quite natural. The occurrence admittedly took place in the same village. Their evidence clearly show that after worshipping in the temple, they were sitting in front of the temple, which is only 20 feet away from the place of occurrence. At that time, the accused came from the backside of the house of Avudaippan with M.O.1-Aruval and indiscriminately, cut the deceased. P.Ws.1 to 3 have clearly witnessed the occurrence. Since they are happened to be the relatives of the deceased, their evidence cannot be disbelieved on that ground alone. The alleged occurrence took place at about 07.00 p.m. Immediately, the deceased was taken to the hospital in the Auto owned by P.W.5. The medical officer's evidence clearly indicated that the deceased was brought to the hospital at 7.15 p.m. Immediately, the death intimation has also been given to the police station and FIR has been lodged and despatched to the Court at night hours on the same day. Therefore, it is the contention of the learned Additional Public Prosecutor that the evidence of the eyewitness are duly corroborated by the medical evidence. Hence, he submitted that mere contradictions, which are minor in nature, could not be the ground to reject the entire prosecution case. Hence, he prayed for dismissal of the appeal.
9. In the light of the above submissions, now it has to be analyzed as to whether the prosecution has proved the guilt of the accused beyond all reasonable doubt.
10. The motive projected by the prosecution in this case was that a previous incident took place during day time in the village that in a meeting held, the deceased was elected unanimously to head the village temple Kumbabisekam,and at that time, the accused objected for the same and insisted that his junior paternal uncle should be elected as the Head. There developed enmity. However, the accused was admonished by the Villagers at a later point of time. The above said meeting was concluded at about 04.00 p.m. on the same day. P.Ws.1 to 3 in their evidence have spoken about the motive. The motive as spoken to by the witnesses about the previous incident has not seriously been disputed by the accused. The evidence of P.Ws.1 to 3 further makes it clear that after such meeting, the deceased went to the house of Avudaippan Asari located in the same village and they were discussing about the Kumbabisekam and meeting. While both of them were sitting in front of the house, at the relevant point of time, P.Ws.1 to 3 also had been in the temple. After performing the pooja, they were sitting in front of the temple, which is 20 feet away from the place, where the deceased and Avudaippan were sitting. At that time, the accused came and cut the deceased indiscriminately with M.O.1- Aruval. P.Ws.1 to 3 rushed to the place by shouting at the accused not to cut the deceased. Despite the same, the accused threatened them also and fled away from the place of occurrence with M.O.1, Aruval. It is also the evidence of P.W.5-the Auto driver that he took the deceased in his Auto immediately after the occurrence. His evidence clearly shows that 2 or 3 relatives of the deceased took the deceased in his Auto to the hospital. Medical officer-P.W.7 evidence shows that the deceased was brought dead to the hospital at 07.15 p.m., on the same day. Thereafter, he issued Ex.P.11, death intimation to the concerned police station. The occurrence, as per the eyewitnesses, took place around 07.00 p.m. and immediately, the deceased was brought to the hospital and the medical officer declared the death of the deceased at 07.15 p.m. The evidence of P.W.7 also shows that P.W.2 only brought the deceased to the hospital at the relevant point of time. P.W.10, on receipt of the intimation, immediately, rushed to the hospital and registered the FIR and the FIR also reached the Court at 12.30 a.m. Though there is a delay of two hours in despatching the FIR to the Court, it is to be noted that P.W.10, after receipt of death intimation, went to the hospital and recorded the statement from P.W.1, and thereafter, went to the police station and registered the FIR at 21.00 hours and immediately, the same has been despatched to the Court on the same night through P.W.11, Head Constable. It was received by the learned Judicial Magistrate at 12.30 a.m. Thus, the delay of two hours in despatching the FIR is not abnormal. The FIR itself prepared at 09.00 p.m. in the police station. For preparing the formal FIR and to complete the other formalities and despatch the same, the delay is bound to occur. Therefore, we are of the view that the delay in despatching the FIR cannot be a fatal to the prosecution. Further, there is no indication from the sequence of events that the FIR is the result of any deliberations or embelishment, etc. Immediately, after the occurrence, the deceased was taken to the hospital without any delay and P.W.10 also rushed to the hospital after intimation from the medical officer. Ex.P.1, thereafter, came to be filed. In such scenario, the delay of two hours is bound to be occurred. Therefore, the contention of the learned counsel for the appellant with regard to the delay in filing the FIR cannot be given much credence.
11. Scanning of the entire evidence of the above eye witnesses, it could be seen that P.Ws.1 to 3, in unison voice, had stated that at the relevant point of time, they were sitting in front of the temple, which is 20 feet away from the place of occurrence and witnessed the occurrence. The post-mortem certificate and the evidence of the post-mortem doctor clearly show that there were serious cut injuries on the backside of the neck, upto the right cheek, right ear, in the occipital region, over the left parietal region, over the back of the right upper arm, the right shoulder and the right scapula. The evidence of the entire witnesses clearly show that the accused came to the place of occurrence with M.O.1 and cut the deceased indiscriminately. P.Ws.1 and 2, being the deceased sons, their presence in the temple cannot be doubted. P.W.3 is the resident of the same village. He was also present and there was no previous enmity whatsoever between the accused and P.W.3 for falsely implicating the accused in this case. It is to be noted that each witness has his own reaction to the particular incident and it cannot be expected that all the witnesses should say, in one voice, about the occurrence in a vivid manner. One may observe the incident meticulously, but, others may not. The observation of each individual witness is different from others. Therefore, it is not possible for each witness to give a uniform statement or evidence before the Court of law. We cannot expect the same reaction from each of the witnesses. Therefore, merely because the witnesses have not spoken about the nature of the injuries and the place, where the injuries were located, their evidence cannot be disbelieved in toto. Similarly, the number of injuries also cannot be given by every witness, who witnessed the attack unexpectedly. Therefore, the contention of the learned counsel for the appellant that the details of the injuries have not been properly spoken to by the witnesses cannot be the basis to disbelieve their evidence.
12. The other contention of the learned counsel is that the injury found on the backside of the head would not have been possible, when the deceased was sitting facing south. Perusal of the rough sketch shows that on both sides of the house, where the occurrence took place, there were lanes. One can easily access from behind the house also. How the accused gained the entrance to the place is irrelevant. What is relevant is that whether the accused caused the indiscriminate injury or not. Human memory cannot be expected to give a minute details, as to how the accused came to that particular place, from where he came and all these aspects, in normal course, is difficult to remember by any person. Therefore, merely, because the witnesses have not spoken about the place, where the accused came from, whether he came behind or front, in our view, the same will not be a fatal to the prosecution case.
13. It is the another aspect suggested to the witnesses that there was election dispute between one Velmurugan and the deceased family three years back and P.W.1, at the relevant point of time, stabbed the said Velmurugan. Therefore, that would have been the motive for eliminating the deceased in this case. If really, the witnesses wanted to implicate falsely, having regard to the previous motive, P.W.1 could have very well implicated the said Velmurugan. Since he had not been implicated, the contention of the learned counsel for the appellant that the witnesses are not the eyewitnesses cannot be countenanced.
14. Of course, the Investigation Officer has not seized the bloodstained dresses of the witnesses. Though the witnesses have spoken that their dresses got stained, while they took the deceased to the hospital, the Investigation Officer had not taken any steps to seize the bloodstained dress of the witnesses. Such attitude of the Investigation Officer is to be highly deprecated. Such conduct of the investigation, at the most, could be termed as lethargic nature of investigation, without knowing the consequences of such seizure. At the same time, such a lethargic attitude on the part of the Investigation Officer, itself cannot be a ground to disbelieve the eyewitnesses. P.W.5, in his evidence, has categorically stated that the deceased was carried to the hospital in his Auto and 4 or 5 people came forward to lift the deceased to his Auto and P.W.7, the medical officer's evidence really shows that one of the sons, i.e., P.W.2 has brought the deceased to the hospital immediately. Merely because of the blood stained clothes of the witnesses have not been collected by the Investigation Officer, in our view, the same cannot be a ground to disbelieve the entire prosecution. Further we are also of the view that merely because P.Ws.1 and 2 are the sons of the deceased and P.W.3 is the distant relative cannot be a ground to disbelieve the evidence on the ground that they are interested witnesses. The term 'interested' postulates that the person concerned must have some direct interest in seeing that the accused person being convicted somehow or the other either because of animosity or some other reasons and the 'interested witness' may be called 'interested' only he/she derives some benefit out of the conviction of the accused.
15. Therefore, merely because the family members witnessed the occurrence, they cannot be called as 'interested witnesses' always. In fact, sometimes they are the most natural witnesses and their veracity has to be tested with care and caution. Normally, close relatives of the deceased, who would be more reluctant to spare the real accused. There was no reason for the witnesses to implicate the accused in this case. There is no foundation made for false implication of the accused. Thus, merely because the witnesses happened to be the relatives, their evidence cannot be thrown away on the ground that they are 'interested'. Hence, the contention of the learned counsel for the appellant in that regard has also no relevance.
16. The accused was arrested in the presence of P.W.9 and the bloodstained shirt was also recovered from the accused. The forensic report Exs.P.17 and 18 also indicated the human blood in shirt and chappals. The non-finding of the blood group may be due to various reasons, due to delay or plasmatic coagulation etc. The same do not discard the prosecution.
17. Of course, one of the witnesses, Sorimuthu whose favour, the accused objected the deceased being elected is not examined by the prosecution. In this regard, the Investigation Officer himself has stated that during the investigation, the said Sorimuthu has not cooperated with the prosecution and he has not even prepared to give any statement. Of course, he is naturally interested in protecting the accused. Therefore, mere non- examination of such witness cannot be a fatal to the prosecution. Similarly, one of the witnesses - Avudaiappan, with whom, the deceased was sitting prior to the occurrence, was also not examined. As we have already pointed out, non-examination of such witness cannot be a ground to doubt the case of the prosecution. Probably, the prosecution would have dispensed him, though the fact remains that he was examined during investigation. It is the prerogative of the Public Prosecutor to examine any witness. In his opinion, if witness has won over or may not support the prosecution. It is reality that many witnesses restrain themselves from giving evidence in the Court of law for obvious reasons. Mere non-examination of witnesses, who are not likely to support the prosecution case, does not destroy the entire case of the prosecution, particularly, when the witnesses, who were subjected to a lengthy cross-examination, had pointed out that the accused is the perpetrator of the crime. Above aspect has been approved by the Hon'ble Supreme Court in a judgment reported in AIR 2004 SC 44, in the case of State of Madhyapradesh vs. Dharkole. Hence, we are of the view that mere non- examination of Avudaiappan is not fatal to the case of the prosecution.
18. On perusal of the medical evidence and post-mortem Doctor's evidence, we have no hesitation to hold that the accused in fact had come with deadly weapon only with an intention to cause the death of the deceased. The nature of the cut injuries inflicted on the neck and head and other parts clearly proved the intention on the part of the accused to eliminate the deceased.
19. As above discussed, the FIR has been lodged formally and reached the Court without any undoubted delay. Merely because of the denial of P.W.10 in cross-examination about the writing in Ex.P.1, the entire genesis of the prosecution cannot be doubted. The truncated admission in one line in the evidence of the witnesses not to be read as admission, whereas the whole evidence has to be read. On careful scrutiny of the evidence adduced on the side of prosecution, except some discrepancies in investigation, the case of the prosecution is intact. Further, ocular evidence and medical evidence overwhelmingly prove the complicity of the accused with that of the crime.
20. Hence, we hold that the prosecution has proved the guilt of the accused beyond all reasonable doubt. Therefore, we are constrained to hold that the conviction and sentence imposed on the accused by the Trial Court under Sections 302 IPC and 506(ii) IPC do not warrant any interference by this Court and the same is hereby upheld. Accordingly, this Criminal appeal is dismissed.
To
1. The Principal Sessions Judge, Tirunelveli, Tirunelveli District.
2. The Inspector of Police, Pathamadai Police Station, Tirunelvei District.
3. The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
.