Madras High Court
Nagaraj vs The Inspector Of Police on 12 January, 2007
Author: G.Rajasuria
Bench: D.Murugesan, G.Rajasuria
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 12/01/2007 CORAM: THE HONOURABLE MR.JUSTICE D.MURUGESAN AND THE HONOURABLE MR.JUSTICE G.RAJASURIA Criminal Appeal No.1077 of 1998 Nagaraj ... Appellant Vs The Inspector of Police, Sivakasi (East) Police Station, Sivakasi. ... Respondent Prayer Appeal filed under Section 374 of the Code of Criminal Procedure, against the judgment passed in S.C.No.88 of 1998 dated 03.09.1998 on the file of the Principal Sessions Judge, Kamarajar District. !For Appellant ... Mr.N.Dilip Kumar ^For Respondent ... Mr.N.Senthurpandian Additional Public Prosecutor :JUDGMENT
G.RAJASURIA, J This appeal is directed as against the judgment passed in S.C.No.88 of 1998 dated 03.09.1998 on the file of the Principal Sessions Judge, Kamarajar District at Srivilliputtur, wherein the appellant was convicted and sentenced to undergo life imprisonment and to pay a fine of Rs.1,000/- in default to undergo simple imprisonment for two years under Section 302 I.P.C.
2. Narratively but succinctly, broadly but briefly, the case of the prosecution as stood exposited from the records could be portrayed thus:
(i) On 15.05.1997, during afternoon the deceased Kulanthaivelu along with his wife and other family members including his two brothers namely Danapaul and Muthukrishnan, visited Muniasamy kovil at Devaraj colony, Thiruthangal, Sivakasi East, Virudhunagar District, as to fulfil the religious vow at the temple relating to the birth of his second child. At 04.15 p.m., on the said day from the temple, the deceased Kulanthaivelu alone set out on his bicycle so as to purchase the pooja articles via the cart track situated in between Chocka Nadar Thope and Eswari Printers Thope. The accused who was in inimical terms with the deceased Kulanthaivelu in view of the fact that the deceased was having illicit intimacy with his wife Eswari, wanted to wreak personal vendetta by using this opportunity and followed the deceased. On seeing that, the deceased Kulanthaivelu's brothers Dhanapaul and Muthukrishnan followed the accused on a bicycle, apprehending that the accused might cause some injury to the deceased Kulanthaivelu. It so happened that even before the brothers of the deceased could prevent the accused from attacking the deceased, the accused accomplished the task of murdering the deceased after a brief scuffle with him.
(ii) Thereupon, the said Dhanapaul lodged the complaint with the police on the same day at 17.30 hrs based on which the police registered the case in Cr.No.491 of 1997 under Section 302 of Indian Penal Code.
(iii) The Inspector of Police took up the investigation, prepared the observation mahazar and collected the sample sand and blood stained sand, the bicycle concerned in the presence of witnesses and conducted inquest over the dead body at the spot itself and sent the corpse for post-mortem.
(iv) The Investigating Officer also examined witnesses and recorded their statements. The blood stained clothes found on the body of the deceased were collected and sent for chemical examination along with the blood stained mud collected from the scene of crime, the sample blood collected from the dead body, the knife which was recovered from the accused in pursuance of the confession made by him on his arrest which was effected by the Investigating Officer on 15.08.1997 around 22.30 hrs. After collecting the post-mortem report and completed the investigation, the police laid the police report in terms of Section 173 Cr.P.C before the Magistrate who committed the case to the Court of Session.
3. During trial, on the side of the prosecution, P.W.1 to P.W.8 were examined and Exs.P.1 to P.14 were marked along with M.Os.1 to 9. On the defence side, the wife of the accused, Eswari and one Jyothi were examined and no documentary evidence was produced.
4. The trial Court ultimately found the accused guilty of the offence under Section 302 I.P.C and convicted him thereunder and sentenced him to undergo life imprisonment and to pay a fine of Rs.1,000/- in default to undergo simple imprisonment for two years.
5. Being aggrieved by the conviction and sentence passed by the trial Court, the appellant has preferred this appeal on the following main grounds among others:
(i) The trial Court blindly believed the evidence of P.W.1 and P.W.2 as eyewitnesses to the occurrence despite the fact that they are close relatives of the deceased.
(ii) The trial Court failed to consider that there was no pathway leading to the temple through which one could go by cycle and therefore, the case of the prosecution that the deceased had gone from the temple by cycle to purchase pooja articles cannot be true.
(iii) The trial Court failed to take note of the absence of any evidence relating to alarm having been raised. The occurrence could not have taken place in the way, the prosecution narrated it.
(iv) The evidence of P.W.1 and P.W.2 would show that they were silent spectators to the murder of their brother.
(v) The narration of the prosecution case was unnatural.
(vi) The medical evidence did not support the time of occurrence. In the absence of evidence of independent witnesses, the trial Court should have acquitted the accused.
(vii) Accordingly, he prayed for setting aside the conviction recorded and the sentence passed by the trial Court and for acquitting him of the charge levelled as against him.
6. Points for consideration are:
(i) Whether the evidence of P.W.1 and P.W.2 who are admittedly the brothers of the deceased Kulanthaivelu, could be relied on as genuine eyewitnesses to the occurrence?
(ii) Whether the medical evidence militates as against the ocular evidence relating to the crime?
(iii) Whether the trial Court convicted the accused without any material evidence on record?
7. Point Nos.(i) to (iii) are taken together for discussion in view of the fact that they are inter-linked and interwoven with one other.
Point Nos:(i) to (iii)
8. Right at the outset, we may advert to the argument advanced by the learned Counsel for the appellant that P.W.1 and P.W.2 are near relatives whose evidence relied on by the trial Court vitiates the conviction. At this juncture, it is worthwhile to cite the decision of the Honourable Apex Court in State of Punjab v. Karnail Singh reported in (2003) 11 Supreme Court Cases 271. An excerpt from it, would run thus:
"8. We may also observe that the ground that the witnesses being close relatives and consequently, being partisan witnesses, should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dalip Singh v. State of Punjab 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: (AIR p.366, para 25) "25. We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses 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 a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in - 'Rameshwar v. State of Rajasthan' (AIR 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."
The dictum of the Honourable Apex Court in Kartik Malhar v. State of Bihar reported in (1996) 1 Supreme Court Caes 614, would run thus:
"18. We may also observe that the ground that the witnesses being close relatives and consequently, being partisan witnesses, should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dalip Singh v. State of Punjab 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: (AIR p.366, para 25) "25. We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses 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 a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in - 'Rameshwar v. State of Rajasthan' (AIR 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."
In this case, this Court further observed as under:
"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 relative 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 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."
9. The perusal of the aforesaid decisions of the Honourable Apex Court would unambiguously and unequivocally drive home the point that the evidence of near relatives cannot be brushed aside or be-littled. The Honourable Apex Court encapsulated the proposition that the near relatives would be the last person to implicate the innocent person leaving the real culprit.
10. The learned counsel for the appellant would try to torpedo the evidence of P.W.1 and P.W.2 on the ground that their narration is against the very sketch prepared by the Investigating Officer. With a view to verify the tenability of such an argument, it is just and necessary to delve deep into the evidence of P.W.1 and P.W.2.
11. P.W.1, Dhanapaul, in his deposition would express and expatiate that on 15.08.1997, the deceased Kulanthaivelu along with his wife Shanti P.W.3, his brother Muthu Krishnan, his aunt Balaguru, went to Muniasamy Temple. After reaching the said temple, the deceased Kulanthaivelu had gone by riding the Herculis bicycle M.O.2, so as to purchase pooja articles; while the deceased Kulanthaivelu was riding his bicycle and proceeding to purchase such pooja articles, the accused who was inimically predisposed towards him, followed him; thereupon, P.W.1, Dhanapaul and his brother Muthu Krishnan P.W.2, apprehended that the accused might cause some danger to their brother Kulanthaivelu; hence, they proceeded on a bicycle following the accused; While they were at a distance of 50 feet, they saw the accused got himself locked up in an entanglement with the deceased on the cart pathway in between the aforesaid two thopes and even before P.W.1 and P.W.2 could actually intervene and save the deceased Kulanthaivelu from the brutal attack of the accused, the latter accomplished the task of stabbing the deceased Kulanthaivelu with a knife on various parts of his body that resulted in the instantaneous death of the deceased Kulanthaivelu at the spot itself; the accused fled away from the scene of occurrence with the knife; and that in fact even when P.W.1 attempted to intervene, the accused intimidated him with dire consequences. Thereupon, P.W.1 went to Sivakasi East Police Station which was 3 K.m away from the scene of occurrence and lodged the complaint, Ex.P.1. P.W.2 at the relevant point of time, was 14 years old, he was subjected to viore dire and the trial Court after getting itself satisfied about the ability of P.W.2, Muthu Krishnan to depose, recorded his deposition.
12. P.W.2 corroborated the evidence of P.W.1 in all material aspects.
13. During cross-examination, nothing significant has been elicited out from those witnesses. It appears during cross-examination of P.W.2, that questions were put as to what happened to the witnesses' blood stained clothes as while they were in the process of lifting the deceased Kulanthaivelu, the blood oozed out from the body of the deceased and got smeared or stained on the clothes of P.W.2. No doubt, in this case, the police did not recover the blood stained clothes of P.W.2 and for that matter, P.W.2 did not hand over any of his clothes to the police.
14. In this connection, the learned Counsel for the appellant cited the decision of the Honourable Apex Court in State of Punjab v. Harbans Singh and another reported in 2004 Supreme Court Cases (Cri) 75 which is on the point that the absence of blood stained clothes of the witnesses, allegedly carrying the injured person, should create doubt in the mind of the Court. The factual matrix as found depicted in the cited decision was to the effect that the prosecution relied on stock witnesses, as those prosecution witnesses in that case appeared previously in a large number of cases as witnesses. Hence, nowhere in the said judgment, it is found expressed that whenever the blood stained clothes of the witnesses were not recovered, that would be fatal to the case of the prosecution. In support of same proposition, the learned Counsel for the appellant also cited the decision of the Honourable Apex Court in Khima Vikamshi and others v. State of Gujarat reported in 2003 Supreme Court Cases (Cri) 1825.
15. The dictum in 2003 Supreme Court Cases (Cri) 1514 [ Mohan Singh v. Prem Singh and another ], cited on the appellant's side, is on the point that non-intervention by the eyewitnesses at the time of accused levelling the attack on the deceased, should be looked as unnatural.
16. Here, the evidence of P.W.1 is not that he was a passive spectator. But, his narration would demonstrate that he and his minor brother P.W.2 Muthu Krishnan were on the way, following the accused as detailed supra so to say 50 feet away from the place of occurrence and before they could reach the spot, the accused completed the gruesome and dastardly, horrible and bloodcurdling act of murdering the deceased Kulanthaivelu. P.W.1 also explained and expounded, convincingly and cogently that on his approach, the accused threatened him with dire consequences, so to say, P.W.1 also would meet the same fate of his brother deceased Kulanthaivelu. A fortiori, we could hold that the conduct of P.W.1 and P.W.2 cannot be termed as 'unnatural' at all.
17. The learned Counsel for the appellant would argue with reference to the location of the temple, the place of occurrence and allegedly the improbability of anyone witnessing the occurrence from the temple, or for that matter, the place from which P.W.1 and P.W.2 had alleged to have witnessed the crime. It is therefore, just and necessary to scrutinize and analyse the evidence of P.W.1 during cross-examination. Certain excerpts from the deposition of P.W.1 would run thus:
"me;j nfhtpy; vjphp ehfuh$d; tPl;ow;F fPH;g[wkhf ,Uf;fpwJ. vd; mz;zd; Fhe;ijntY g{i$ rhkhd; thq;Ftjw;fhf kjpak; 4.00 kzpf;F irf;fpspy; nghdhd;. vd; mz;zd; ehfuh$d; tPl;il jhz;or ;bry;Yk;bghGJ vjphp ehfuh$Dk; vd; mz;zd; gpd;dhy; nghdhd;. . . . . . "
"jpUj;jq;fy;Yf;F uapy;nt nfl;ow;F mLj;j ];lhg; FWf;Fg;ghij vd;W bgah;. FWf;Fg;ghijf;F fpHf;nf xU bgl;nuhy; gy;f; ,Uf;fpwJ. bgl;nuhy; gy;fpw;F mUfpy; cs;s ghij tHpahf brd;W flk;gd;nfhtpy; fz;kha; tHpahf brd;why; Kdparhkp nfhtpYf;F bry;yyhk;. me;jg;ghij tHpahft[k; nfhtpYf;F nghfyhk;. g[fhhpnyh tprhuizapnyh ehq;fs; vy;nyhUk; ehfuh$d; tPl;ow;F nghFk; ghij tHpahfj;jhd; KdP];tud; nfhtpYf;F nghndhk; vd;W brhy;ytpy;iy vd;W brhd;dhy; rhpay;y. KdP];tud; nfhtpYf;Fk; rk;gtk; ele;j ,lj;jpw;Fk; 500 mo J}uk; ,Uf;Fk;. 500 mo J}uk; vd;gJ rh;r;rpypUe;J njh; epw;Fk; ,lk; tiu cs;s ,ilbtsp J}uk;. . . . ."
"KdP];tud; nfhtpy; rk;gtk; ele;j ,lk; neuhf tl fpHf;fpy; cs;sJ. rk;gtk; ,lj;jpw;Fk; KdP];tud; nfhtpYf;Fk; ,ilapy; ntypf;fUnty; kuq;fSk; fUnty; kuq;fSk; tPLfSk; kR{jpa[k; ,Uf;fpwJ. rk;gtk; ,lj;jpypUe;J K:isapy; ghj;jhy; nfhtpy; bjhpa[k;. . . . . "
" flk;gd; Fsk; fz;kha; fiuapy; KdP];tud; nfhtpYf;F bry;y ntz;Lbkd;why; ele;Jjhd; bry;y ntz;Lk;. irf;fpspy; bry;;y KoahJ. . . . . ."
"bry;tk; tPl;ow;Fg; gpd;dhy; ehq;fs; tUk; bghGJ vd; rnfhjuh; FHe;ijntYit vjphp ehfuh$; jhf;fpaijg; ghh;j;njd;. . . . . ."
18. Focussing the attention mainly on those excerpts, the learned Counsel for the appellant would develop his argument that such a narration of fact would show that the version of P.W.1 could not be true. It is therefore just and necessary to scrutinize the aforesaid excerpts with reference to Ex.P.9, sketch.
19. At this juncture, it is worthwhile to highlight the fact that in Ex.P.9 sketch, the Investigating Officer committed the mistake of not specifying the location of the said temple. Had he specified it, the matter would have been easier for verification. We are of the considered opinion that the police hereafter, at least, may do well to draw the sketch not for the purpose of drawing the sketch mechanically to enclose along with the police report, but it should be drawn having in mind the actual case and the evidence. The purpose of drawing the sketch itself is for clarity and that itself should not pave the way for obfuscating the Court, or the Public Prosecutor or the defence Counsel. Unnecessary details are found set out in the sketch Ex.P.9 and observation mahazar Ex.P.4. Suffice to say Ex.P.9 is a good example as to how a bad sketch in a criminal case could be drawn. We would like to lay certain guidelines as to what are the basic features inter alia that should find place in the sketch drawn by the Investigating Officer as under:
(i) The broad topography of the vicinity.
(ii) The actual place of occurrence in detail.
(iii) Available lighting facilities and it would be all the more important if the occurrence had taken place during night time.
(iv) The details relating to from which direction the deceased and the accused reached the place of occurrence and the same may be shown in dotted lines showing directions.
(v) The location of the witnesses at the time of occurrence and their ability / chance to view the occurrence by dotted lines to highlight the probability of they having seen the crime from the place where they stood at the time of occurrence.
(vi) Approximate measurements should be given from one point to another.
(vii) The other usual details relating to location of buildings around the scene of crime.
The above guide lines are not exhaustive but only indicating the minimum requirements.
20. These are the basic requirements which are totally missing in Ex.P.9 sketch and that alone propelled and impelled, accentuated and actuated to us to detail and delineate those guidelines which are only the basic requirements and over and above that the police shall do well to add any number of other details which shall not contain unnecessary details but only points relevant to the case concerned.
21. Here, P.W.1 would state that the temple is situated to the east of the accused's house which is marked as No.8 in Ex.P.9 sketch. In one another place, the same witness would highlight that the temple is situated towards north-east from the place of occurrence and he would also proceed to state that from the place of occurrence from a particular angle if seen, the said temple could be sighted. He would also narrate that even while P.W.1 and P.W.2 were proceeding on their bicycle following the accused, from the place near the house of the accused, they started witnessing the accused attacking the deceased Kulanthaivelu.
22. The learned Counsel for the appellant would also state that at the north-east corner of Eswari Printers thope as found set out in Ex.P.9, there is a bell mouth compound wall, that Selvam's house is situated behind the house of the accused and that there was no possibility or probability of P.W.1 and P.W.2 witnessing the crime. There is nothing on record to show that the compound wall of Eswari Printers thope was so high or the trees situated there, were such they blocked the view of the witnesses. However, P.W.2 asserted that they first sighted from the place near Selvam's house and they reached the spot itself and as such, it is crystal clear that it is not the case of the prosecution that after sighting from one place the witnesses stopped there itself. But, P.W.1 and P.W.2 reached the spot and the accused intimidated P.W.1 also with dire consequences. In such a case, the arguments as put forth so as to torpedo the evidence of P.W.1, fails to carry conviction with this Court.
23. It is an admitted fact that to reach the temple, there was more than one way. Here, the evidence of P.W.2 would show that they initially reached Muniasamy temple by proceeding beside the house of the accused only and the deceased Kulanthaivelu thereafter proceeded on his bicycle to purchase the pooja articles, whereupon only, the accused followed the deceased and all those events were witnessed by P.W.1 and P.W.2. It is a trait proposition of law that while analysing the evidence of witnesses, more specifically, witnesses in criminal cases, the sentences in the deposition in isolation should not be read. The Court should not visualise of its own accord some imaginary picture about the location of the scene of crime and that would lead to disbelieving even the genuine and a' naturel evidence of witnesses. The occurrence took place in the village area and near the place of occurrence, there were no residential houses even though at a distance there were houses. It is common knowledge that when the offences are happening, it is difficult to secure independent witnesses. There is no certainty that simply because there might be some houses at a distance, those residents of such houses should be present in all probabilities at the time of occurrence. The occurrence took place during evening time in a cart track and that should not be lost sight of, while evaluating the evidence.
24. The learned Counsel for the appellant also focussed his argument based on the ground that as per the evidence of witnesses, at the time of going to the temple, they had with them only one bicycle and that two bicycles might have come into existence one for the deceased to proceed and another for P.W.1 and p.W.2 to follow him on seeing the accused following the deceased. Here, the witnesses in a natural way, narrated that they proceeded on the bicycle and simply because there were no reference to two bicycles earlier, the prosecution version cannot be disbelieved as it is not a case of cycle theft and the bicycle is not the subject matter of the crime here and in such a case, the witnesses might not have been meticulous in narrating all those details.
25. P.W.3, the wife of the deceased, Shanti would narrate about the fact of she along with family members having visited the said temple as narrated by P.W.1 and P.W.2.
26. P.W.1, P.W.2 and P.W.3 in unison would speak about the motive part of the crime that the deceased and the wife of the accused Eswari had illicit intimacy with each other and which fact alone made the accused to harbour rancour in his heart so as to do away with the deceased Kulanthaivelu.
27. The learned Counsel for the appellant would submit that according to those witnesses, such incident took place 1 1/2 years ago and that could not be the motive. D.W.1, Eswari, the wife of the accused herself would candidly and categorically, without mincing words state that a year and a half anterior to the occurrence involved in this case, she and the deceased were together in the bed and that was seen by the accused, but the accused only scolded his wife Eswari and sent the deceased Kulanthaivelu away and he did not involve in any violent act and that subsequently, after panchayat, both the accused and Eswari resumed cohabitation. D.W.1 would also state that till the death of the deceased Kulanthaivelu both were working virtually in Century Printers. As such the evidence of Eswari is against the accused and it strengthened the case of the prosecution only.
28. The evidence of D.W.2, Jyothi is for the purpose of falsifying the 161 Statement recorded by the police which was to the effect as though she had seen the deceased proceeding on his bicycle to purchase the pooja articles after talking with her and that the accused also followed him. Presumably, understanding that she would not support the prosecution case, she was not examined on the prosecution side. But, the defence side by way of filling up the lacuna unwillingly examined on their side so as to falsify the 161 statement. She could only be taken as a hostile witness and nothing more. Had she been examined on the prosecution side, she would have stated the same thing and the learned Public Prosecutor might have examined at that time itself. However, the defence took up the duty of the prosecution and examined her so as to enable the prosecution to cross-examine her and thereby the defence side itself explained the reason for non-examination of that witness on the prosecution side.
29. Be that as it may, coming to the defence theory, it is the specific case of the accused that one Selvam alone murdered the deceased Kulanthaivelu, as the deceased usurped the contract work of his relative Selvam; thereupon, only Selvam who is having his house near to the house of the accused, murdered the deceased Kulanthaivelu. Such a suggestion put to witnesses was denied by them. No doubt, P.W.3 Shanti would state that since Selvam was not performing the contract work properly, the firm gave the contract work to the deceased Kulanthaivelu, her husband and such a fact by no stretch of imagination could be the motive for the murder of the deceased Kulanthaivelu. On the other hand, the evidence of Eswari, the wife of the accused with whom the deceased admittedly had illicit connection, clearly stated that the accused had witnessed, D.W.1 and the deceased Kulanthaivelu sharing the bed together. It is common knowledge that such facts are sufficient to constitute weighty motive to commit murder.
30. In fact, P.W.2 would furnish the motive part in detail to the effect that the deceased Kulanthaivelu was a contractor in Century Printers and there, D.W.1, wife of the accused also was working. In connection with that, the deceased Kulanthaivelu used to go to the house of the accused and take Eswari and in that process, the illicit intimacy developed between the deceased Kulanthaivelu and Eswari. In this connection, there were quarrels between the deceased and the accused. In fact, the deceased Kulanthaivelu stayed near the house of the accused and in view of such frequent quarrels centering on the illicit intimacy between the deceased and Eswari, the residence of Kulanthaivelu was shifted from that place and even thereafter, the deceased Kulanthaivelu continued to come to the house of the accused so as to pick her up in connection with the job and that was the immediate motive for the crime. Eswari, D.W.1 herself, during cross-examination, stated that at the time of murder of the deceased, she was working under the same arrangement as narrated above.
31. Hence, the plea of the appellant that 1 1/2 years anterior to the commission of the crime only, such illicit intimacy persisted and not thereafter between Eswari D.W.1 and the deceased Kulanthaivelu, is nothing but a bare faced lie so as to enable the accused to wriggle out his criminal liability. The prosecution has put forth through P.W.5, the Doctor Ramesh and the post-mortem report issued Ex.P.10 the medical evidence. The Doctor observed the following injuries on the dead body:
"Injuries:
1) A incised would 4cm X 1.5cm extending deep just below left collar bone on lid claricular line horizontally placed.
2) Left ear lobe sharply cut into two in the middle 2.5 cm X 1.0 cm, attached at both ends by then fragment of tissue.
3) A incised wound 4 cm X 1.5 cm muscle deep just behind lower end of left ear.
4) Two incised wound each 2.5 cm X 1.5 cm X 0.5 cm apart one the outer part of middle of left upper arm muscle deep.
5) A incised would 3 cm X 1.5 cm muscle deep 5.5 cm below the wound No.4 cited above.
6) A incised would 3 cm X 1 cm muscle deep over the back of left upper arm 5 cm behind wound No.4 cited above.
7) A incised would 3 cm X 1.5cm over the inner border of @ shoulder blade muscle deep.
8) A incised wound 3 cm X 1.5 cm muscle deep over the middle left side of back of chest horizontally placed.
9) A incised would 3 cm X 1.5 cm muscle deep over the outer border of left side of back of just above lovi.
10) A incised wound 3 cm X 1.5 cm muscle deep over middle of left buttock extending obliquely upward.
11) A incised wound 3 cm X 1.5 cm in the web space between left thumb and left index finger exposing muscle."
32. The post-mortem commenced on 16.08.1997 at 12.00 hrs. The Doctor was of the opinion that the death was due to shock and extensive haemorrhage. The death might have occurred 18 - 24 hours prior to the autopsy and that tallies with the evidence of the witnesses as the incident had taken place at about 04.15 p.m., on 15.08.1997. In the grounds of appeal, it is found stated as though undigested rice was there and that does not tally with the time of death, etc. There is no hard and fast rule as to when a villager should consume rice etc., and in such view of the matter, the plea of the defence is totally untenable. As per the medical jurisprudence, it is a trait proposition that the medical opinion relating to time of death could only be approximate in view of the fact that various factors are involved in ascertaining the time of death. An excerpt from Modi's Medical Jurisprudence & Toxicology, Twenty-Second Edition, at page No.247, could fruitfully be extracted as under:
"It varies in man from 2.5-6 hours. A meal containing carbohydrates generally leaves the stomach early and the one containing protein, later. The fatty food delays the emptying time, while liquids leave the stomach immediately after ingestion. Sometimes, the emptying of the stomach remains in abeyance for a long time in states of profound shock and coma. Undigested food has been seen in the stomach of persons who received severe head injuries, soon after their meal and died within twelve to twenty-four hours afterwards. In one case, the food consisting chiefly of rice and dal (pulse) remained in the stomach for about forty hours, without undergoing digestion. It must also be remembered that the process of digestion in normal, healthy persons may continue for a long time after death. The presence of tablets or parts of capsules may be significant.
The average urine volume in a healthy adult is about 1.5 litre/day. It varies from 600 to 2500 ml daily. It is dependent on the:
* intake of water;
* type of food;
* environmental temperature; and * physical and mental state of the person."
33. As such the medical evidence clearly corroborates the prosecution case that there were lot of incised wounds as noted supra which were inflicted with the help of knife, M.O.1 which was recovered by the police on the strength of the confession made by the accused after his arrest. P.W.4, the Doctor would depose that on 16.08.1997 at about 01.00 p.m., the accused was brought to him and he observed the above injuries on him. The Doctor also opined that such injuries were possible due to scuffling. Ex.P.2 is the wound certificate which would bear the history as ascertained from the accused to the effect that he was bitten by a known person on 15.08.1997 at 04.00 p.m. As such this history recorded by P.W.4, the Doctor in Ex.P.2 would also support the prosecution case and also about the participation of the accused in the crime. The Doctor was not cross-examined challenging such history recorded by him. It was only suggested as though such injuries could happen by falling on a rough surface. No doubt, the police only took the accused to the Doctor. Even then, the history recorded by the Doctor is not inadmissible in evidence in view of the decision of the Division Bench in Sugumaran alias Eli, In re reported in 1984 L.W (Crl.) 23. An excerpt from it, would run thus:
"13. Before parting with this case, we would like to point out that in this case, the appellant was examined by the doctor P.W.14, immediately after the occurrence and an injury was found on his person. In explaining the injury, the appellant told the doctor P.W.14 that the same was caused while he stabbed deceased Murugan a little while earlier. This part of the statement found in Ex.P.14 was shut out by the learned trial judge as inadmissible in evidence. This, in our opinion, is erroneous. In K.Padayachi v. State of Tamil Nadu it has been held that the statement of an accused before a doctor even though he was in custody of the police, is admissible in evidence however incriminating it may be. The Supreme Court pointed out that the statement of the appellant(accused) does not amount to a confession and that it is only an admission of fact - no doubt, an incriminating fact, which establishes the presence of the accused at the time of the occurrence. The Supreme Court further observed that an admission of a fact, however incriminating, but not by itself establishing the guilt of the maker of such admission, would not amount to confession within the meaning of Ss.24 to 26 of the Evidence Act. Of course, now that this portion has been shut out from the evidence, we are not looking into that portion for the purpose of the case and this observation is made only for future guidance of the Sessions Judges and the Public Prosecutors."
34. As such it is a piece of evidence, which further adds strength to the prosecution case and it is beyond doubt that the commission of the crime was by the accused.
35. P.W.6, Mariappan is the witness for observation mahazar and for collection of M.Os.2, 3, and 4 and there is nothing to doubt his testimony. P.W.7, Paulraj, is the Sub Inspector of Police who received the complaint and registered the F.I.R, as in Ex.P.8. P.W.6 also is the witness for confession to prove the admissible portion of Ex.P.6 on 15.08.1997 and for recovery of M.O.2, knife at the instance of the accused, as per the Mahazar Ex.P.7. This evidence also supports the prosecution case for which there is no doubt and nothing has been highlighted so as to discredit the confession and recovery.
36. Exs.P.11, P.13, P.14 are all chemical examiner's report and serologist's report which support the prosecution case that M.O.1, knife was stained with human blood of 'B' positive. On M.Os.5, 6 and 7 also, the human blood was found.
37. In fact, the police also recovered the blood stained shirt, M.O.8 and M.O.9, from the accused and the expert's opinion would show that all those M.Os were stained with blood. As such the presence of human blood on the accused's clothes further strengthened the case of the prosecution.
38. To the risk of repetition, we would highlight that in this case, the medical opinion relating to time of death was not raised before the trial Court. But after obtaining the evidence on the aforesaid line. Hence, as per the well settled proposition of law as laid down by the Honourable Apex Court, the ocular evidence prevail over medical opinion, if in certain aspects it is turned out to be murky.
39. In view of the discussion supra and the reasons adverted to by us, there is no infirmity in the conviction recorded and sentence imposed by the trial Court.
40. It is therefore crystal clear that the prosecution has proved the guilt of the accused beyond all reasonable doubts and we have no hesitation to hold that it is the accused who committed such day light murder of the deceased Kulanthaivelu.
41. In the result, the appeal is dismissed confirming the conviction and sentence passed by the trial Court. The trial Court shall take necessary steps to issue non-bailable warrant and secure the presence of the accused and commit him to jail to undergo the sentence.
rsb To
1. The Inspector of Police, Sivakasi (East) Police Station, Sivakasi.
2. The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.