Madras High Court
Kannan vs State Rep. By on 15 September, 2014
Author: M.Venugopal
Bench: M.Venugopal
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:15.09.2014 C O R A M THE HONOURABLE Mr. JUSTICE M.VENUGOPAL Criminal Appeal No.126 of 2006 Kannan ... Appellant/Accused Vs State rep. by The Inspector of Police , Vellore Taluk Police Station, Vellore District. ... Respondent/Complainant Prayer: Criminal Appeal filed under Section 374(2) of Cr.P.C., praying to call for the entire records in connection with S.C.No.148 of 2002 on the file of the Learned Assistant Sessions Judge, Vellore, Vellore District and set aside the conviction and sentence imposed by the Learned Assistant Sessions Judge, Vellore dated 20.12.2005 in S.C.No.148 of 2002. For Appellant : Mr.C.Vijayakumar For Respondent : Mr.A.N.Thambidurai Additional Public Prosecutor For Petitioner : Mr.R.Muniyapparaj (in M.P.1/2014) Date of Reserving Judgment : 12.08.2014 JUDGMENT
The Conviction and Sentence dated 20.12.2005 passed by the Learned Assistant Sessions Judge, Vellore in S.C.No.148 of 2002 are now under challenge in the present Appeal filed by the Appellant/ Accused.
2.The Appellant was found guilty by the Learned Assistant Sessions Judge, Vellore, in respect of an offence under Section 307 I.P.C. and was awarded with a punishment of 10 years Rigorous Imprisonment and was also sentenced to pay a fine of Rs.5,000/- and in default of payment of fine, he was further directed to undergo Rigorous Imprisonment for one year under Section 235(2) Cr.P.C. Further, the trial Court, out of the fine amount of Rs.5,000/-, awarded a sum of Rs.4,000/- as compensation to the Victim viz., Thirunavukkarasu (P.W.11) after the Appeal or the Appeal time was over.
3.The story of the prosecution is that on 06.11.2001 at about 8.45 p.m., due to election enmity, at Adukkamparai Bus Stand, when the victim was taking the Scooter, the Appellant/Accused attempted to murder the victim (Thirunavukkarasu) and assaulted him with Vettaruval on his back neck, left forehead, left chest and left wrist and caused grievous and simple injuries. As such, as against the Appellant, a charge sheet was filed for the offence under Section 307 of the Indian Penal Code by the Inspector of Police, Vellore Taluk Police Station before the Judicial Magistrate I, Vellore.
4.On the basis of accusation levelled against the Appellant/ Accused, the trial Court framed necessary charge under Section 307 I.P.C. and the same was read over and explained to him. The Appellant /Accused denied the charges framed against him.
5.Before the trial Court, on the side of prosecution, witnesses P.W.1 to P.W.14 were examined and Exs.P.1 to P.8 were marked. Also, M.O.1 and M.O.2 were marked. On the side of Appellant/Accused, no witness was examined and no document was marked.
6.When the Appellant/Accused was questioned under Section 313 Cr.P.C. in regard to the incriminating circumstances appearing in evidence against him, he denied his complicity in the trial.
The Appellant's Contentions:
7.The Learned Counsel for the Appellant contends that the trial Court had committed an error in relying on the interested inconsistent, uncorroborated and discrepant evidence of the prosecution witnesses.
8.The Learned Counsel for the Appellant submits that the Appellant was wrongly convicted by the trial Court based on the evidence of P.W.1 and P.W.11 and in fact, the contradictions in P.W.1 and P.W.11 chief examination as well as cross examination were not taken into account.
9.The Learned Counsel for the Appellant proceeds to submit that the trial Court had failed to take into consideration that the occurrence took place during night hours. In this connection, the Learned Counsel for the Appellant projects an argument that the presence of light was not mentioned during the investigation and Section 161 Cr.P.C. statement by the witnesses.
10.Advancing his arguments, the Learned Counsel for the Appellant contends that according to the evidence of P.W.1, he was standing at the eastern side of the road at the time of the occurrence. However, P.W.8 had stated in his evidence that P.W.1 came to the occurrence place after he reached there.
11.The Learned Counsel for the Appellant submits that P.W.1/ Complainant was not at all present at the time of occurrence and due to election enmity between the Appellant/Accused and the victim family he had implicated the Appellant and preferred the complaint as if he was an eyewitness to the occurrence.
12.The Learned Counsel for the Appellant contends that the Appellant/Accused was not connected with the case and in fact, the Complainant was assaulted by unknown persons and at the time of occurrence on 06.11.2001 there was no Electricity.
13.The Learned Counsel for the Appellant brings it to the notice of this Court that there was no eyewitness to the incident and false and cooked up complaint was prepared against the Appellant/Accused on the next day of occurrence. Added further, the Learned Counsel for the Appellant submits that the complaint was prepared on next day at 10.00 a.m. and lodged before P.W.13 (Sub Inspector of Police).
14.The Learned Counsel for the Appellant contends that the FIR was sent to Court at 7.30 p.m. on 07.11.2001 which was fatal to the prosecution case. Further, the Learned Counsel for the Appellant submits that there are lacunas in the case of the prosecution and incurable defects which go in favour of the Appellant/Accused.
15.The Learned Counsel for the Appellant submits that the trial Court had went wrong in considering the fact that P.W.2 had stated that P.W.1 told him that 'utilizing the darkness, the occurrence had happened' and also stated on 06.11.2001 the day of occurrence at about 10.00 p.m. the Police had reached the scene of occurrence.
16.The Learned Counsel for the Appellant contends that P.W.3 was a 'Hearsay witness' according to the prosecution, he adduced evidence as if he was an eyewitness to the occurrence and from this, it was clear that an interested witnesses are very particular in convicting the Appellant and their over enthusiasm could be seen.
17.The Learned Counsel for the Appellant submits that from the evidence of P.W.14 (Investigating Officer), it was evident that there was no eyewitness according to the prosecution and in fact, the nearby shop owner Manickam (L.W.4) in the charge sheet was not examined before the trial Court. The Learned Counsel for the Appellant also adds that there was no cut injury on the body of P.W.11.
18.The Learned Counsel for the Appellant contends that the 'Arrest and Recovery Theory' in respect of the Appellant could not be believed and in fact, M.O.2 - Knife was not sent for chemical analysis. Continuing further, the Learned Counsel for the Appellant submits that the dress of the injured/victim (P.W.11) was not seized by the Police and sent for chemical analysis.
19.The Learned Counsel for the Appellant submits that all the statement of witnesses (recorded under Section 161 Cr.P.C.) were sent to Judicial Magistrate I, Vellore on 02.04.2002, at the date of filing of charge sheet. Further, M.O.2 Knife and Form No.95 were sent to Judicial Magistrate Court only on 03.12.2001 and these were fatal to the prosecution case.
20.The Learned Counsel for the Appellant submits that there is no Accident Register Copy and there was no evidence in the instant case that the injured/victim was taken to Vellore Government Hospital.
21.The Learned Counsel for the Appellant contends that P.W.3 and P.W.4 falsely deposed before the trial Court as if they were eyewitness to the occurrence and in fact, relatives of P.W.11 were examined as witnesses.
22.Further, the Learned Counsel for the Appellant submits that Ex.P.4 Wound Certificate, it was mentioned that the injured patient (P.W.11) was brought by one Suresh (Patient's friend) and it was further stated that on 06.11.2001 at 10.00 p.m. the Doctor had seen the injured and also that, the place of occurrence was mentioned as 'Adukkamparai'. The occurrence time was mentioned as '9.00 p.m.' and the date of occurrence was stated as '06.11.2001'.
23.The Learned Counsel for the Appellant refers to Ex.P.4 Wound Certificate in respect of P.W.11 and contends that under the caption 'No. of persons (male/female) involved in the offence', it was mentioned as 'Unknown people' and significantly, in Ex.P.4 Wound Certificate, the weapon alleged to have been used in the offence was not mentioned and it was left blank.
24.The Learned Counsel for the Appellant refers to the evidence of P.W.7 (Doctor) and submits that the Doctor had clearly deposed in his evidence (in cross-examination) that he had not mentioned about the type of weapon used in Ex.P.4 Weapon Certificate and further contends that the Doctor had also proceeded to state that Suresh (who came along with injured) had not mentioned about the weapon and also that the said Suresh had not mentioned about the details in regard to the injured being attacked by either woman or man or even how many persons had attacked.
25.The Learned Counsel for the Appellant contends that Suresh, who brought the injured (P.W.11) to the Hospital, was not the Complainant and it was only the said Suresh who took the injured to the Hospital.
26.The Learned Counsel for the Appellant submits that P.W.1 (Sarathy) was the Complainant and in Ex.P.1 Complaint, the motive for the occurrence mentioned was only Hearsay and this could be evident from Ex.P.1 wherein P.W.1 had stated that the Appellant had prior enmity with P.W.1's brother Thirunavukkarasu (P.W.11) and further, the Appellant/Accused had stated that they had won and in future, even if P.W.11-Thirunavukkarasu was beaten, even then there was no person to ask for the same. Further, in Ex.P.1 the name of Suresh was not mentioned and further, it was also not stated whether the said Suresh accompanied the injured (P.W.11) to the Hospital.
27.In effect, the plea taken on behalf of the Appellant/Accused is that the complaint given by P.W.1 (Sarathy) was a cooked up one and in P.W.1's evidence, there is no indication that the injured (P.W.11) was taken to Government Hospital.
28.The Learned Counsel for the Appellant refers to the evidence of P.W.4 (Suresh) who had deposed to the effect that P.W.4, Vinayagam, Sarathy put the injured in an Auto and brought him to the Government Hospital and for further treatment, P.W.4 took the injured to C.M.C. Hospital wherein he was admitted and contends that P.W.4 was not the eyewitness in the statement recorded by the Investigating Officer.
29.The Learned Counsel for the Appellant submits that P.W.4 in his 161 Cr.P.C. Statement before the Police had stated that he was in the shop and in fact, during his cross examination, P.W.4 had categorically stated that he was not in the shop and further, P.W.4 had stated, in his cross examination, that he had informed the Doctor at the time of admitting injured P.W.11 in the Hospital that when Doctor questioned him as to how the injury had occurred and that he informed that the Appellant alone had cut the injured.
30.The Learned Counsel for the Appellant refers to the statement of Suresh (P.W.4) (recorded under Section 161 Cr.P.C. by the Police) wherein he had inter alia stated that ' ... Manickam came to his shop and that he went to the place of occurrence and found that Thirunavukkarasu (P.W.11) was lying in an unconscious state after sustaining serious blood injury' and vehemently contends that the said Manickam, mentioned by P.W.4, was not examined by the Respondent /Police.
31.The Learned Counsel for the Appellant submits that P.W.1 (Sarathy), in his cross examination, had stated that the signature found in Ex.P.1 (Compliant) belongs to him and that he had not written the recitals and in fact, the details for Ex.P.1 Complaint were stated to a person who has outside the Hospital and only that person wrote the details in Ex.P.1 (Complaint) wherein he had signed and indeed, P.W.1 had categorically stated that he does not know who was that person.
32.The Learned Counsel for the Appellant contends that in Ex.P.1 (Complaint), there was no reference about the injured (P.W.11) being taken to C.M.C. Hospital.
33.The Learned Counsel for the Appellant invites the attention of this Court to the evidence of P.W.1 (in cross examination) wherein he had stated that at the time of writing the Complaint (Ex.P.1), Kirubanandam, Vinayagam and Mani and others were there and further, Ex.P.1 (Complaint) was written on 07.11.2001 at 10.00 a.m. in C.M.C. Hospital. The Learned Counsel for the Appellant refers to the evidence of P.W.1 and contends that P.W.1 had not stated anything about the presence of P.W.4 (Suresh) at C.M.C. Hospital.
34.The Learned Counsel for the Appellant refers to the evidence of P.W.1 (in cross examination) and submits that they had given information that only the Appellant had cut the victim/injured. Also, the Learned Counsel for the Appellant contends that P.W.1 was not an eyewitness and he came only at a later point of time.
35.The Learned Counsel for the Appellant contends that P.W.8 in his evidence (in cross examination) had stated that at the time of occurrence, he was in the house and that he went to the scene of occurrence, on being informed by Suresh (P.W.4) and this evidence of P.W.8 goes to show that P.W.1 was not an eyewitness.
36.The Learned Counsel for the Appellant submits that P.W.2 (another brother of injured P.W.11), in his evidence (in cross examination), had deposed that it was correct to state that the Police, on coming to know of the information, came and inspect the place of occurrence on the day of occurrence at 10.00 p.m. in the night and contends that no Compliant or F.I.R. was lodged on the same day of occurrence.
37.The Learned Counsel for the Appellant refers to the evidence of P.W.13 (presently Sub Inspector of Police and then Assistant of Vellore Taluk Police Station) to the effect that on 07.11.2001 when he was on duty at about 10.00 a.m. in the morning, he received the complaint from P.W.1 (Sarathy), who appeared before the Police Station and registered a case under Section 307 I.P.C. in Crime No.499 of Vellore Rural Police Station and submitted the same for perusal of Inspector and also sent to the Court and the concerned officer and Ex.P.7 was the F.I.R.
38.The Learned Counsel for the Appellant refers to the evidence of P.W.12 (in cross examination) wherein he had stated that he handed over the Tapal (in regard to the happening of the occurrence on 07.11.2001) in between 10.00 and 11.00 a.m to the Vellore Judicial Magistrate No.I and in fact, the witness had also stated that the Magistrate had signed about the receipt of Tapal on 07.10.2001 at about 7.00 p.m. in the evening.
39.Further, the Learned Counsel for the Appellant draws the attention of this Court to the evidence of P.W.13 (in his cross examination) wherein he deposed that the residence of the Magistrate was at a distance of approximately half a kilometer from their Police Station and he does not know about the reason for First Information Report reaching the Judicial Magistrate at 7.30 a.m. belatedly.
40.The Learned Counsel for the Appellant contends that P.W.8 in his evidence (in cross examination) had stated that he knew that the Appellant had cut the injured/P.W.11. Further, the Learned Counsel for the Appellant proceeds to take a plea that P.W.1 to P.W.4, P.W.6, P.W.8, P.W.9 and P.W.10 went to the Hospital and none had lodged a complaint before the Taluk Police Station. In fact, the stand of the Appellant is that the complaint and F.I.R. cannot be believed and that the evidence of P.W.1 ought not to be accepted. Furthermore, it is the plea of the Appellant that P.W.1 was not an eyewitness to the occurrence.
41.The Learned Counsel for the Appellant brings it to the notice of this Court that though P.W.9 (Vinayagam) said to be an eyewitness to the occurrence, in reality, he was not an eyewitness.
42.The Learned Counsel for the Appellant refers to the evidence of P.W.14 (in his cross examination) wherein he had stated that in F.I.R., Observation Mahazar or at the time, when witnesses were examined, it was not mentioned that at the occurrence place, the lights were burning in the shops or about the presence of another light.
43.The Learned Counsel for the Appellant refers to the evidence of P.W.2 (in his cross examination) wherein he had stated that during night shift, at the time of electricity supply being changed, by utilising the darkness, the cut incident took place as informed by his brother Sarathy (P.W.1) and further, P.W.1 informed him at that time, there was 'Moonlight'.
44.The Learned Counsel for the Appellant invites the attention of this Court to the evidence of P.W.1 wherein he had stated that at that place to a certain extent in the shop, the electric bulb was burning and submits that there was contradiction in the evidence of P.W.14, P.W.2 and P.W.1 in regard to the burning of light at the occurrence place and this only goes in favour of the Appellant.
45.The Learned Counsel for the Appellant refers to the evidence of P.W.3 (in chief examination) wherein he had stated that at the time of occurrence, in this place in the shops, the electric lights were burning.
46.The Learned Counsel for the Appellant refers to the evidence of P.W.6 (in his cross examination) wherein he had stated that during Police enquiry he had stated that at the time of occurrence, in the shop, there was brightness of tube light and electricity.
47.The Learned Counsel for the Appellant refers to Ex.P.6 Mahazar wherein in Serial No.2, it was mentioned that on 10.11.2001 at about 7.30 a.m. in the morning, Vettaruval - M.O.2 (length of approximately 10 = feet) was seized on identification by the Police from the nearby Lake channel situate adjacent to the land of Kuppan.
48.The Learned Counsel for the Appellant refers to the evidence of P.W.14 (the then Inspector of Police), in his cross examination, wherein he had stated that the Appellant was arrested at about 6'o clock in the morning on 10.11.2001 and that the Appellant/Accused gave a confession for about 45 minutes to one hour and the confession statement was over in 7.00 a.m. in the morning and the knife was seized at about 7.30 a.m. for which, Mahazar-Ex.P.6 was written and the knife was recovered from the lake channel in which water was not passing through and in the upper portion of the lake, on the sand area, M.O.2 Knife was there which was produced by the Appellant/ Accused.
49.The Learned Counsel for the Appellant refers to the evidence of P.W.9 wherein he had stated (in cross examination) that when Kannan was identified to the Police, the time was at about 11.00 a.m. in the morning and firstly he had seen the Police and later he had seen Kannan and they were asked by the Police as to whether they had seen Kannan (Appellant) and he does not know as to why the Police had specifically asked him and Mani in this regard. Further, he had stated that after enquiry made by the Police, he saw the Appellant was coming at that time and that the Police were coming in the direction of East to West and that the Appellant (Kannan) was proceeding in the direction of West to East.
50.The Learned Counsel for the Appellant was arrested on 10.11.2001 at 6.00 a.m. and the recovery of knife was made at 7.30 a.m. on the same day in the morning. Also, the Learned Counsel for the Appellant refers to the evidence of P.W.9 (Vinayagam) (in cross examination) and submits that when the Appellant (Kannan) was identified to the Police, it was about 11.00 a.m. in the morning and according to Ex.P.6 - Mahazar, the M.O.2 Knife was recovered at 7.30 a.m. on 10.11.2001. However, according to the Investigating Officer (P.W.14), the Appellant was arrested at about 6'o clock in the morning on 10.11.2001 and in fact, the evidence of P.W.9 nails the evidence of P.W.14. In effect, the bone of contention advanced on behalf of the Appellant is that the place of arrest, the time of arrest and mode of recovery were all totally contradictory in character.
51.The Learned Counsel for the Appellant refers to the evidence of P.W.2 (in his cross examination) wherein he had stated that on the next day when his brother Sarathy went to the Police Station for lodging a complaint he went along with him and it was correct to state that in the Police Station, the Police informed him that his brother Thirunavukkarasu (P.W.11) was cut with this knife (M.O.2).
52.The Learned Counsel for the Appellant submits that P.W.14 (in cross examination) had deposed that there had occurred a delay in regard to the Form No.95 (relating to seizure of properties), being sent to Court owing to law and order problem and in fact, the Form No.95 was sent to the Judicial Magistrate Court on 03.12.2001. According to the Learned Counsel for the Appellant, the case properties in the present case were received and entered in C.P.No.1236 of 2001 by the Learned Judicial Magistrate on 03.12.2001.
53.The Learned Counsel for the Appellant refers to the evidence of P.W.14 (Investigating Officer), in cross examination wherein he had stated that the Appellant/Accused was arrested on 10.11.2001 at 6.00 a.m. and that for completion of Appellant's confession statement at about 7.00 a.m. in the morning, it took 45 minutes to one hour. Further, P.W.14 had also deposed that M.O.2 Knife was seized at lake channel in which no water was flowing and on the upper portion of the channel on sand area the M.O.2 was there.
54.The Learned Counsel for the Appellant contends that only relatives were examined and no independent witnesses were examined and in fact, in Arasampattu Village, many persons were available. In this connection, the Learned Counsel for the Appellant refers to the evidence of P.W.9 (in cross examination) wherein he had stated that in Arasampattu Village there are more houses and shops and in that place, the movement of people was in high note.
55.The Learned Counsel for the Appellant vehemently submits that no case can be made out in the absence of weapon of offence, viz., M.O.2 knife, being sent to Forensic Science Examination.
56.The Learned Counsel for the Appellant contends that many eyewitnesses were examined on 07.11.2001 and they were not sent to Court along with the F.I.R. and indeed, all the statements were manipulated.
Glimpse of Case Laws relied on Appellant's side:
57.The Learned Counsel for the Appellant, on the aspect of 'Delay in lodging First Information Report' refers to the decision of the Hon'ble Supreme Court, in Rajeevan and another V. State of Kerala, AIR 2003 Supreme Court 1813 at special page 1814 & 1815, whereby and whereunder, in paragraph 7 & 8, it is observed as follows:
7.The Trial Court noticed that there were many weak spots in the prosecution case such as, the delay in lodging First Information Statement. The spot of incident is only 100 meters from the Police Station. But the FIR was lodged in the Police Station only at 7.40 AM on the next day; that though FIR was filed on 29-12-1987 in that morning, it was sent to the Magistrate only at 5.40 PM on 30-12-1987; that the Sub-inspector (PW-28) did not register the crime on the basis of information collected by him immediately after the incident; that Ex.P30 is the counter foil file of the FIR and between the entries relating to Crime Nos.5 and 7, certain blank sheets were found; that this circumstance was not satisfactorily explained by the concerned Police Officer during examination...
8.Based on these factors the FIR was found to be a concocted document and delay in lodging the FIR with the Magistrate also influenced the Trial Court in holding that innocent persons were being implicated as a result of political vendetta or for any other reason as there was enough fire for manipulation and the manner in which record was maintained gave rise to grave suspicion regarding the same. Also, in the aforesaid decision, at page 1815 to 1817, in paragraphs 13, 15 to 19, it is observed and held as under:
13. Another doubtful factor is the delayed lodging of FIR. The learned counsel for the appellants highlights this factor. Here it is worthwhile to refer Thulika Kali v. State of Tamilnadu, (1972) 3 SCC 393, wherein the delayed filing of FIR and its consequences are discussed. At Para 12 this Court says -
"...First Information Report in a criminal case is an extremely vital and valuable piece of evidence for the purpose corroborating the oral evidence adduced at the trial. The importance of the report can hardly be overestimated from the standpoint of the accused. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed the names of the actual culprits and the part played by them as well as the names of eye-witness present at the scene of occurrence. Delay in lodging the first information report quite often results in embellishment which is a creature of after- thought. On account of delay, the report not only gets benefit of the advantage of spontaneity danger creeps in of the introduction of colored version, exaggerated account or concocted story as a result of deliberation and consultation. It is, therefore, essential that the delay in lodging the first information report should be satisfactorily explained." (Emphasis supplied) (P.397)
15. .... This fact is further buttressed by the delayed placing of FIR before the Magistrate, non-satisfactory explanation given by the Police Officer regarding the blank sheets in the Ex. P30 counter foil of the FIR and also by the closely written bottom part of Ex.P1 statement by PW 1. All these factual circumstances read with the aforementioned decisions of this Court lead to the conclusion that it is not safe to rely upon the FIR in the instant case. The delay of 12 hours in filing FIR in the instant case irrespective of the fact the Police Station is situated only at a distance of 100 meters from the spot of incident is another factor sufficient to doubt the genuineness of FIR. Moreover, the Prosecution did not satisfactorily explain the delayed lodging of FIR with the Magistrate.
16. This Court in Marudanal Augusti v. State of Kerala, (1980) 4 SCC 425, while deciding a case which involves a question of delayed dispatch of the FIR to the Magistrate, cautioned that such delay would throw serious doubt on prosecution case, whereas in Arjun Marik v. State of Bihar, 1994 Supp. 2 SCC 372, it was reminded by this Court that:
"...the forwarding of the occurrence report is indispensable and absolute and it has to be to forwarded with earliest despatch which intention is implicit with the use of the word 'forthwith' occurring in Section 157 CrPC, which means promptly and without any undue delay. The purpose and object is very obvious which is spelt out from the combined reading of Sections 157 and 159 CrPC. It has the dual purpose, firstly to avoid the possibility of improvement in the prosecution story and introduction of any distorted version by deliberations and consultation and secondly to enable the Magistrate concerned to have a watch on the progress of the investigation..."(pp. 381-382)
17. One more aspect considered by the trial court was that though P.W. 28 (S.I. of Police) proceeded to the spot on getting information of clash within half-an-hour and although he had definite information and details of the incident which he noted in general diary (Ex. P-32), F.I.R. was not registered on the ostensible ground that the name of assailants were not known.
18. We are of the view that when the case against the appellant is not proved beyond reasonable doubt that these appellants have murdered Ibrahim and it is not safe to convict them. When the trial Court had given good and weighty reasons for its conclusion, the High Court need not have substituted its view to that of the trial Court. We cannot say that the view of the trial Court is not a reasonable conclusion on facts. Hence, the High Court need not have interfered with the verdict of acquittal by the trial Court.
19. We, therefore, allow this appeal setting aside the order of the High Court while restoring that of the Trial Court. The appellants stand acquitted of the offence with which they were charged and the bail bonds furnished by them are cancelled.
58.The Learned Counsel for the Appellant cites the decision of the Hon'ble Supreme Court in Thulia Kali V. The State of Tamil Nadu, AIR 1973 Supreme Court 501 at page 504 & 505, it is, inter alia, observed and held as follows:
12. .... It is, in our opinion, most difficult to believe that even though the accused had been seen at 2 p.m. committing the murder of Madhandi deceased and a large number of villagers had been told about it soon thereafter, no report about the occurrence could be lodged till the following day. The police station was less than two miles from the village of Valanjiaraju and Kopia and their failure to make a report to the police till the following day would tend to show that none of them had witnessed the occurrence. It seems likely, as has been stated on behalf of the accused, that the villagers came, to know of the death of Madhandi deceased on the evening of March 12, 1970. They did not then know about the actual assailant of the deceased, and on the following day, their suspicion fell on the accused and accordingly they involved him in this case. First information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the above report can hardly be overestimated from the standpoint of the accused: The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as names of eye witnesses present at the scene of occurrence. Delay in lodging the first in- formation report quite often results in embellishment which is a creature of afterthought. On account of delay, the report not only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story As a result of deliberation and consultation. It is, therefore, essential that the delay in the lodging of the first information report should be satisfactorily explained. In the present case, Kopia, daughter-in-law of Madhandi deceased, according to the prosecution case, was present when the accused made murderous assault on the deceased. Valanjiaraju, stepson of the deceased, is also alleged to have arrived near the scene of occurrence on being told by Kopia. Neither of them, nor any other villager, who is stated to have been told about the occurrence by Valanjiaraju and Kopia, made any report at the police station for more than 20 hours after the occurrence, even though the police station is only two miles from the place of occurrence. The said circumstance, in our opinion, would raise considerable doubt regarding the veracity of the evidence of those two witnesses and point to an infirmity in that evidence as would render it unsafe to base the conviction of the accused-appellant upon it.
15.Looking to all the circumstances, we are of the view that it is not possible to sustain the conviction of the accused on the evidence adduced. We accordingly accept the appeal, set aside the conviction of the accused-appellant and acquit him.
59.The Learned Counsel for the Appellant invites the attention of this Court to the decision of the Hon'ble Supreme Court in Marudanal Augusti V. State of Kerala, AIR 1980 Supreme Court 638 & 639, wherein it is observed as follows:
The trial Court appears to have acquitted the appellant on the ground that there were certain infirmities in the investigation conducted by the Police Officer. The manner in which the F.I.R. was lodged, the delay in despatch of the F. T. R. and the delay on the part of P. W 1 in getting the in juries examined by the Doctor, were features which according to the Sessions Judge were so gravely suspicious that they went to the root of the matter. The High Court on the other hand was not impressed by the reasons' given by the trial Court and was of the opinion that there was no reason to disbelieve eye-witnesses P. Ws. 1 to 6 against whom the accused bore no animus. The High Court was of the opinion that there was thus no reason to throw out the prosecution due to the infirmities noticed by the learned Sessions Judge. The High Court, however, seems to have overlooked the fact that in reversing the judgment of acquittal, the Appellate Court has also to keep in mind a very vital consideration, namely, as to whether or not the view taken by the Sessions Judge could be reasonably possible. We have gone through the judgment of the Sessions Judge and the High Court and after hearing the parties we are satisfied that the view taken by the Sessions Judge was, doubtless, reasonably possible. ... The most serious infirmity which appears in the case is that although the F.I.R. was lodged on the midnight of 23/24-6-1971, it was despatched to the Sub-Magistrate and received by him at 5-30 A.M. on the 25th of June, 1971 that is to say, there was a delay of as many as 29 hours in the receipt of the F.I.R. by the Sub-Magistrate. The Investigating Officer in spite of being questioned on this matter, does not appear to have any explanation whatsoever for this delay. On the other hand, he admits that the F.I.R. was despatched through express delivery. Indeed, if that was so, the F.I.R. should have reached the Magistrate much earlier.
60.The Learned Counsel for the Appellant seeks in aid of the decision of the Hon'ble Supreme Court in Mahtab Singh & Another V. State of U.P., AIR 2009 Supreme Court 2298, at special page 2301, wherein, in paragraph 11, it is held as follows:
11.One of the main reasons given by the High Court in upsetting the judgment of acquittal is that FIR was lodged barely 45 minutes after the incident; the distance of police station being hardly one furlong from the place of occurrence. High Court, however, failed to consider a very material aspect that despite the fact that police station was situated close and visible from the place of incident, yet PW-1 did not go immediately to police station to report but he first went to Charan Singh to have a written report prepared and then went to the police station with written report. The first version of the incident could have been reported at the police station within five minutes of its occurrence. The fact that PW-1 took 45 minutes in reporting the incident at the police station rather creates doubt about the truthfulness of the prosecution case and does not rule out false implication of the accused against whom PW-1 had grudge due to some civil dispute between them.
61.The Learned Counsel for the Appellant in regard to the aspect of 'Delay in sending Documents to Court', cites the decision of this Court, in Abuthagir @ Thagir & others V. State, represented by the Inspector of Police, Podanur Police Station, Coimbatore District, 2006-1-L.W. (Crl.) 179 , at special page 199 & 200, wherein in paragraph 29, it is held as follows:
29.It is expected from the prosecution that the papers connecting the crime starting from F.I.R. should reach the Judicial Magistrate concerned without any delay as far as practicable. If any delay occasioned unavoidably, that alone should not cast cloud provided that delay is explained. As pointed out by the learned senior counsel, a Division Bench of this Court in Karunakaran Jabamani Nadar In re (1974 L.W. Crl. 190) held that the statements of witnesses recorded under Section 161(3) of Cr.P.C. having special importance they should be despatched by the Investigating Officer without any delay to the Magistrate and they should bear the initials of the Magistrate with reference to both the date and time of the receipt. Though Criminal Procedure Code does not prescribe any such guideline, it is declared by this Court, that the documents, which are coming within the meaning of special importance should reach the judicial authority in time, thereby preventing its challenge at later point of time as if concocted one utilizing the delay etc. to suit the convenience of the prosecution. If the important documents had reached the judicial hand, then it could be safely said that the averments contained in the documents came into existence at appropriate time, not utilising the delay, thereby it should be given its due weight and credence. This kind of safeguard was not made available to the statements of P.Ws.5 & 6, thereby creating a dark cloud upon their statements even compelling us to say that the statements might have been recorded at later point of time, fixing the accused even after identification.
62.The Learned Counsel for the Appellant relies on the decision in Karunakaran Jabamani Nadar In re., 1974 L.W. (Crl.) at page 190 at page 191, wherein it is observed and held as follows:
It is imperative that the following documents should be despatched immediately, without any delay by the investigating officers to the Sub-Magistrate. The Station-House Officer should record the time of the actual despatch of the various documents in the various registers, particularly, the statement recorded under S.154 of the Crl.P.C. On receipt of the said documents, the Magistrate should initial the same, noting there in the time and date of the receipt of those documents. This would provide the only judicial safeguard against subsequent fabrication of such documents in grave crimes. Therefore, as the Manual of Instructions for the Guidance of Magistrates in the Madras State does not contain any instructions to the Magistrate in this regard, we suggest that the same may be brought up-to-date by incorporating in the circulars which had been issued from time to time for the guidance of the Magistrates. The following are documents of special importance which, should be despatched by the investigating officers without any delay to the Magistrates, and they should bear the initials of the Magistrate with reference to both the time and date of their receipts:
1.The original report or complaint under S.154 of the Crl.P.C.
2.The printed form of the F.I.R. (first information report) prepared on the basis of the said report or complaint.
3.Inquest reports and statements of witness recorded during the inquest.
4.Memo sent by the Station House Officers to doctors for treating the injured victims who die in the Hospital subsequently and the history of the case treatment.
5.Memo sent by the doctor to the police when a person with injuries is brought to the Hospital, or the death-memo sent by the doctor to the police on the death of the person admitted into the Hospital with injuries.
6.Observation mahazars and mahazars for the recovery of material objects, search lists and the statements given by the accused admissible under S.27 of the Evidence Act, etc. prepared in the course of the investigation.
7.The statements of witnesses recorded under S.161(3) of the Crl.P.C.
8.Form No.91, accompanied by material objects.
63.The Learned Counsel for the Appellant to lend support to the contention that no independent witnesses from the place of recovery in the present case were examined, cites the decision of the Hon'ble Supreme Court in Pradeep Narayan Madgaonkar V. State of Maharashtra, AIR 1995 Supreme Court 1930 at page 1931, wherein, in paragraph 6, it is held as follows:
6.Section 100(4) of the Cr.P.C. requires that before making a search, the officer or other person about to make it, shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness, the search and may issue an order in writing to them or any of them so to do. The courts generally look for compliance of the aforesaid provisions, to the extent possible in the facts and circumstances of a given case. Do PW2 and PW5 satisfy the requirements of Section 100(4) supra? Can they be called independent respectable witnesses of the locality? If they did not belong to the locality where the search was conducted, what was the occasion from them to be present near building No. 93 at the crucial time to be joined as panch witnesses? Answer to these and some other questions, to be dealt with later on, would decide whether the conviction and sentence of the appellants is sustainable. Also, in the aforesaid decision, at page 1933, in paragraph 12 & 13, it is observed as follows:
12. The very fact that the police officers joined PW 2 and PW 5 in the raid creates a doubt about the fairness of the investigation. Coupled with this is the manner in which the confessional statement of A1 and A2 was recorded by Hemant Karkare PW 3, which has been rightly discarded by the Designated Court itself. Even if we were to ignore the tell tale discrepancy in the number of the room i.e. 3323 or 3334, from where the appellants were arrested, accepting the explanation of the prosecution that it was as a result of typographical error, it looks to us rather strange that the discrepancy should have come to the notice of the investigating officer only when he filed his affidavit in the Supreme Court in the special leave petition filed by the absconding accused, yet in the totality of the circumstances of the case and after a careful analysis of the evidence on the record we find it rather unsafe to rely upon PW 1, PW 4 and PW 6 only without there being any independent corroboration of their testimony, to uphold the conviction and sentence of the appellants. We cannot loose sight of the fact that since the mere possession of an arm, as specified in the schedule, without a licence, in a notified area, attracts the provisions of Section 5 of TADA with stringent punishment, the quality of evidence on which the conviction can be based has to be of a much higher order than the one we find available in the present case. Our independent appraisal of the evidence on the record has created an impression on our minds that the prosecution has failed to bring home the charge to the appellants beyond a reasonable doubt.
13. Since, we find that it is not safe to rely upon the evidence relating to the alleged search and recovery, the appellants are entitled to the benefit of doubt. Their conviction and sentence cannot be sustained. We therefore accept these appeals and set aside the conviction and sentence of the appellants. They shall be released from custody forthwith if not required in any other case.
64.The Learned Counsel for the Appellant relies on the decision of the Hon'ble Supreme Court in Babudas V. State of M.P., (2003) 9 Supreme Court Cases 86, at special page 91, wherein, in paragraph 4, it is, inter alia, held as follows:
4. ..... The very purpose for which the wrist watch was packed and sealed with signatures of PWs.17 and 19 on 28.5.1988 is lost by the opening of the packet in their absence. The prosecution cannot prove that the wrist watch recovered on 28.5.1988 at the instance of A-2 is the same watch which was produced in court during the trial. Our suspicion in regard to the genuineness of the recoveries gets compounded by this factum of opening of the sealed articles in the absence of original Panchayatdars. In the present case, the inability of the I.O. to explain the change in packaging makes the seizure further doubtful. This serious error in the background of the fact that even though many independent witnesses were available as Panchayatdars for the recovery, the prosecution's act of using an admittedly stock witness like PW-17 and the manner and the place in which these recovered objects were allegedly concealed, throws great suspicion in the alleged recoveries which is the foundation of the prosecution case against the appellant. The argument of learned counsel for the respondent in regard to the presumption that could be drawn from the alleged recovery as to the crime committed by the person from whom such recovery is made or his false alibi as supported by the decisions relied on by her, will be of no assistance to the prosecution case. A presumption under Section 114(a) could be drawn only if the factum of recovery is proved beyond reasonable doubt which in this case we have held is not done because the recoveries are highly doubtful. Therefore, on such doubtful recoveries, a presumption as to the guilt of the accused cannot be drawn. We agree with the learned counsel for the respondent-State that in a case of circumstantial evidence, a false alibi set up by the accused would be a link in the chain of circumstances as held by this Court in the case of Mani Kumar Thapa (supra) but then it cannot be the sole link or the sole circumstance based on which a conviction could be passed. In the instant case we have held that a substantial part of the prosecution case which involves both A-1 and A-2 has been disbelieved by the High Court so far as A-1 is concerned and the conviction was confirmed as against A-2 by the High Court based on the recoveries made and the said recovery having been disbelieved by us, the sole circumstance against the appellant remains to be his alibi which in our opinion, is not sufficient for basing a conviction. We are of the considered opinion that the prosecution has failed to prove beyond reasonable doubt that this appellant is responsible for the murder of the deceased, and for throwing his body in the lake, consequently, the charge under Section 201 should also fail.
65.The Learned Counsel for the Appellant in regard to the plea that blood stained clothes and weapon not sent to Forensic Lab for analysis to ascertain origin and group of blood, refers to the decision in Arivazhagan V. The State rep. By The Inspector of Police, Kuvagam Police Station, Perambalur District, 2012 (3) MWN (Cr.) 202, at page 203 & 204, wherein, it is held as follows:
e. Even though P.W.1 sustained bleeding injuries, and his clothes were blood stained at the time of occurrence, the Investigating Officer did not take any steps to send them for forensic lab analysis. In his cross-examination, he would say that the statement of witnesses as well as the weapons were sent to the Court after one year, that no specific investigation was done with Radiologist as to the fracture sustained by P.W.1 with reference to the x-ray and that he did not lift any blood-stained earth since he did not see any blood stain in the scene of occurrence and that he also did not produce the weapon before the Doctor to get his opinion. Even though he claims that the statement of witnesses were recorded on 19.4.2003, from the private witness and statement from doctors on 16.6.2003, 5.8.2003, he sent the statement of witnesses at a later point of time. From Form 95, it is seen that the weapons were received by the Court on 14.7.2004 but the properties were remanded by the Court on 16.7.2004 only. This shows serious lapse on the part of the Investigating Officer in sending the weapons to the Court on a belated time and he did not take any initiative to send the blood stained clothes as well as the weapons to the Forensic Lab Analysis to ascertain the origin and group of blood. In this regard, the nexus between the Accused and the occurrence has not been established.
66.The Learned Counsel for the Appellant cites the decision of the Hon'ble Supreme Court in A.Shankar V. State of Karnataka, AIR 2011 Supreme Court 2301, at special page 2306, wherein it is observed as follows:
FSL Report:
As per Abdul Subhan (PW-17), he sent all the seized articles including M.O.1 for FSL examination through Police Constable 2313 on 2.6.1996 and received back on 7.6.1996. However, FSL report was not produced before the Court. Abdul Subhan (PW-17) has admitted that he received the Post-Mortem report and FSL report and after completing the investigation he submitted the charge-sheet on 27.6.1996. No explanation has been furnished as to why this FSL has not been produced before the court as it was necessary to ascertain as to whether M.O.1 was actually used in the commission of offence or not. Also, in the aforesaid decision, at page 2307, in paragraph Nos.14 & 15, it is held as follows:
14.The contradiction in the statement of Shankara (PW-8) in the court as compared with his statement before the police under Section 161 Cr.P.C. also demolishes the aspect of motive.
15.There was delay in lodging the FIR. In the present case, the alleged occurrence took place at 2.00 p.m. and the police station was hardly at a distance of 1 k.m. From the place of the occurrence and Shankara (PW-8) had never deposed that he had become unconscious, the delay has not been explained. Furthermore, in the aforesaid decision, at page 2307 & 2308, in paragraph 18 & 20, it is observed and held as under:
18.If the case in hand is examined in the light of the aforesaid settled legal proposition, the prosecution has definitely made an attempt to establish the presence of the accused in the shop and Shankara (PW-8) is the only eye-witness. His presence also cannot be doubted in view of the fact that he himself got injured in the incident. However, the question does arise as under what circumstances he has told his sister and brother-in-law that his brother has been killed by accused-appellant when in his substantive statement before the court he has deposed that he came to know about the death of his brother after being discharged from the Hospital and he remained there as indoor patient for 15 days. Such a statement made in the court also creates a doubt as to whether he could be the author of the complaint for the reason, that in the complaint lodged by him on 26.3.1996 he has stated that his brother had died. Similarly, non-production of the FSL report in the court by the prosecution is fatal as in absence thereof it was difficult for the court to reach to the conclusion as to whether the offence has been committed with M.O.1.
20.In view of the above, we are of the considered opinion that the High Court committed an error in recording the finding of fact that the prosecution succeeded in proving the case beyond reasonable doubt. The High Court failed to meet the grounds pointed out by the trial Court discarding the case of prosecution and thus, the findings of fact recorded by the High Court remain perverse. Contentions of the Respondent/Prosecution side:
67.Conversely, it is the submission of the Learned Additional Public Prosecutor for the Respondent that since the injured/P.W.11 suffered multiple cut injuries and not in a position to stand P.W.1 (Sarathy) (brother of P.W.11) took him to Hospital and in fact, P.W.2, in his evidence, had stated that his brother P.W.1 (Sarathy) informed him inter alia to the effect that during night taking advantage of the darkness, at the time of change/shifted electricity supply, the cut incident had taken place and when he went there at that time, his brother P.W.11 (Thirunavukkarasu) was in an unconscious state.
68.Also, the Learned Additional Public Prosecutor for the Respondent refers to the evidence of P.W.3 (Vinayagam), who had deposed, in his evidence, that at the time of occurrence, at that place, the electric lights were burning in the shops and that he along with P.W.1 (Sarathy) ran to catch the Appellant/Accused and at that time, the last cut was inflicted on the left side eye and the Appellant/Accused ran in the direction of western side in Maize Land.
69.The Learned Additional Public Prosecutor for the Respondent refers to the evidence of injured P.W.11 wherein he had implicated the Appellant/Accused by stating inter alia that the Appellant with M.O.2 - Knife, by uttering the words that 'you should have been finished on the election day itself and further, you would not be allowed to live' with the knife in his right hand, cut him on the left side of the neck and also that when he caught his neck with two hands, at that time, the Appellant/Accused inflicted a single cut and when he moved away at that time, he cut him on the left side of the ribs. Further, when he defended himself for the first time at that time, the cut made by the Appellant/Accused fell on his left forearm and he fell unconscious and at the time of his falling down in an unconscious state, at that time, the Appellant/Accused inflicted a cut on his cheek and after the incident, 15 to 20 days later when he regained his consciousness, at that time he was giving treatment at C.M.C. Hospital etc.
70.The Learned Additional Public Prosecutor for the Respondent refers to the evidence of P.W.1 (in his cross examination) that wherein he had stated inter alia that the cut injuries were all over within 4 or 5 minutes and only in the burning of electric light on the backside of depot, the incident took place. Also, the Learned Additional Public Prosecutor for the Respondent brings it to the notice of this Court that the injured P.W.11 was in C.M.C. Hospital for 30 days.
71.The Learned Additional Public Prosecutor for the Respondent in regard to the non-examination of Manickam submits that it is the prerogative of the prosecution to examine the witnesses concerned before the trial Court in a criminal case and it is not necessary for the prosecution to examine all the witnesses cited in the charge sheet and as such, the non-examination of Manickam as witness on behalf of the Prosecution in any event was not fatal.
72.Ultimately, the Learned Additional Public Prosecutor for the Respondent contends that the trial Court had analysed the entire oral evidence of P.W.1 to P.W.14 and looked into the marked exhibits Ex.P.1 to P.8 and M.O.s 1 & 2 and had come to a resultant conclusion that the Respondent/Prosecution had proved the case against the Appellant/Accused beyond reasonable doubt and found him guilty in respect of an offence under Section 307 of the Indian Penal Code and awarded him the Rigorous Imprisonment for a period of 10 years and also directed him to pay a fine of Rs.5,000/-, in default of payment of fine, he was further directed to undergo Rigorous Imprisonment for a period of one year and out of the fine amount of Rs.5,000/-, Rs.4,000/- was awarded as compensation to the victim/inured (P.W.11) and the same may not be interfered with by this Court sitting in Appellate Jurisdiction, because of the reason that the Judgment of the trial Court dated 20.12.2005 in S.C.No.148 of 2002 does not suffer from any material irregularities or any infirmities or patent illegalities, in the eye of Law.
Reply Submissions of the Appellant's side:
73.By means of Reply, the Learned Counsel for the Appellant/ Accused forcefully contends that the evidence available on record clearly establishes that P.W.11 (injured) was attacked by 'Unknown People' and a false case was foisted against the Appellant, after a long lapse of time with a fabricated, concocted and cooked up complaint and F.I.R.
74.Furthermore, it is the submission of the Learned Counsel for the Appellant that although the occurrence purported to have taken place at 8.45 p.m. on 06.11.2001, as per version of the prosecution, Ex.P.1 - Complaint was lodged by P.W.1 before the Vellore Taluk Police Station at 10.00 a.m. on 07.11.2001 and F.I.R. Ex.P.7 was registered in Crime No.499/2001 under Section 307 I.P.C. by P.W.13, the Sub Inspector of Police and the complaint and F.I.R. were sent to the Judicial Magistrate I, Vellore after a long delay at 7.30 p.m. on 07.11.2001.
75.In short, the Learned Counsel for the Appellant projects an argument that the trial Court had failed to appreciate the necessary facts and the apparent contradictions available on record pertaining to the mode, manner and time of lodging the complaint and F.I.R. Further, sending the complaint and F.I.R. to the Judicial Magistrate Court after long lapse of time is fatal to the case of prosecution.
76.The Learned Counsel for the Appellant submits that none of examined prosecution witnesses had disclosed the identity of the assailant to the Doctor, when P.W.11 was admitted. Moreover, it is represented on behalf of the Appellant that there was no evidence available on record to show that the injured P.W.11 was firstly taken to Government General Hospital, Vellore and also that, the Accident Register from Government General Hospital, Vellore was not produced in the case nor any Doctor was examined. Also that, P.W.7 (Doctor), who issued the wound certificate to the injured P.W.11, (in his cross examination) had stated that he had mentioned the name of Accused Kannan as a person who attacked the injured and had not stated as 'Unknown people'.
77.The Learned Counsel for the Appellant contends that in Ex.P.1- Complaint, it was not stated that P.W.4 (Suresh) accompanied the injured P.W.11 to the Hospital. As such, it is the plea taken on behalf of the Appellant/Accused that no one knew the assailants and no one was eyewitness to the occurrence and in fact, the complaint was cooked up after a long time viz., on the next day. Added further, it is represented on behalf of the Appellant/Accused that if P.W.1 (Sarathy) had actually witnessed the occurrence and took the injured P.W.11 to the Hospital he should have preferred a complaint to the Police at the earliest point of time on the night of 06.11.2001 itself inasmuch as the Police Station was situated in the Town itself. Also that, neither P.W.1 nor any other witnesses had never informed the Police and went to the Police Station to lodge a complaint on the night of 06.11.2001.
78.The Learned Counsel for the Appellant submits that P.W.1 (Sarathy), in his cross examination, had clearly stated that he was not the Author of Ex.P.1-Complaint and further stated that he did not know, who had written the compliant. In fact, P.W.1 had stated that he had only signed the compliant as he did not know to read and write.
79.The Learned Counsel for the Appellant refers to the evidence of P.W.1 wherein he had stated that he had studied at 7th standard and he had read Ex.P.1 and also stated that while he wrote the complaint at that time, P.W.1, P.W.3 and P.W.10 were available and the complaint was written on 07.11.2001 at 10.00 a.m. at C.M.C. Hospital. In this regard, the Learned Counsel for the Appellant brings it to the notice of this Court for Ex.P.1 - Complaint shows that nothing was said about the injured being taken to C.M.C. Hospital, Vellore after he was admitted in Government General Hospital, Vellore. As a matter of fact, the complaint speaks about the admission of the injured only at the Government General Hospital, Vellore and there is glaring contradiction between the evidence of P.W.1 and Ex.P.1-Complaint. That apart, for the delay in lodging the complaint, there was an insertion to mean that P.W.1 was in the Hospital along with the injured. Therefore, from the evidence, it is quite clear that Ex.P.1 Complaint was cooked up after a long delay on 07.11.2001 and P.W.1 was not the Author of the document.
80.The Learned Counsel for the Appellant contends that P.W.3 had denied the suggestion that he along with P.W.14 the Inspector of Police went to the scene of occurrence, on the night of occurrence date itself and since the identity of assailant was not known and there was information about the assault by the crowd suppressing the same a false complaint and FIR was fabricated on the evening of 07.11.2001.
81.The Learned Counsel for the Appellant refers to the evidence of P.W.12, Head Constable, who had deposed (in chief examination) that he submitted the F.I.R. on 07.11.2001 after 10.00 a.m. to the Learned Judicial Magistrate I, Vellore and in his cross examination, he had stated that the First Information Report was submitted between 10.00 a.m. to 11.00 a.m. to the Judicial Magistrate.
82.The Learned Counsel for the Appellant contends that in Ex.P.1-Complaint, it was not stated at what point of time P.W.1 and P.W.11 met together and where they had assembled at the time of alleged occurrence at 8.45 p.m. Moreover, P.W.1 contradicted his own compliant by deposing in chief examination that he and P.W.11 were speaking together in Adukkamparai Bus Stand at about 8.45 p.m. and proceeded to their house and at that time, P.W.1 was on the eastern side of the road and P.W.11 went towards the western side of the road to take the scooter and that evidence itself was contradictory because of the reason that a perusal of the Sketch reveals that the stop was only on the western side of the road.
83.The Learned Counsel for the Appellant submits that the alleged occurrence place was shown on the northern side of the bus stop adjacent to the bus stop and there was no necessity for P.W.11 to go to the opposite side to take the scooter and as such, the evidence of P.W.1 and P.W.11 was totally contradictory and the place of occurrence was shown to be an imaginary one.
84.The Learned Counsel for the Appellant contends that in Ex.P.4 a stab injury and three lacerated injuries were shown, but P.W.7 (Doctor) stated that sharp edged weapons did not cause lacerated injuries and the stab injury was possible with a knife.
85.The Learned Counsel for the Appellant submits that it is the case of the Appellant that he was illegally taken away from his house on 07.11.2001 in the afternoon and illegally detained for 3 days and that false case was foisted against him.
86.Finally, the Learned Counsel for the Appellant takes a plea that in any event, the sentence imposed by the trial Court on the Appellant/Accused is very severe and harsh one and the same needs to be set aside.
The contents of the Written Arguments of the De facto Complainant (Petitioner)/P.W.1 [in M.P.No.1 of 2014]:
87.At the out set, this Court pertinently points out that the Petitioner/De facto Complainant (P.W.1) filed M.P.No.1 of 2014 in Crl.A.No.126 of 2006 praying permission of this Court to assist the prosecution in the main Criminal Appeal and this Court, on 04.02.2014 allowed the Miscellaneous Petition.
88.The Petitioner/De facto Complainant (P.W.1), in the Written Statements, had stated that the evidence of P.W.1 to P.W.6 and P.W.11 would clearly establish the motive, between the Appellant and the Victim P.W.11, that prior to the occurrence 20 days before, there was Panchayat Board Election and P.W.1 was contested as an independent candidate and Thanjiammal said to have contested to the opposite side against P.W.11 and due to the election dispute, the Appellant was warned by P.W.1 and thereafter, the Appellant's side won the election and P.W.11 was defeated and at that time, the Appellant had stated that they had won, he would see all of you in future and would finish and later there was a Panchayat held by the Village people. As such, the evidence of P.W.1 to P.W.6, P.W.11 was corroborated by each of the witnesses and therefore, the motive for the occurrence was clearly established in the present case.
89.Further, it is the plea of the Petitioner/De facto Complainant that the evidence of P.W.7 supported the prosecution along with the corroboration evidence of P.W.1 to P.W.6 and P.W.11. Also, it is the stand of the Petitioner/De facto Complainant that the evidence of injured eyewitness/P.W.11 and other witnesses were credible in nature and no ground was made out to disbelieve the same. In fact, P.W.11 sustained four injuries and it was possible and these injuries could not have been caused by M.O.2 and also that according to P.W.7 (Doctor) the injury No.4 was grievous in nature. Furthermore, it is also pleaded that P.W.14 on 10.11.2001 arrested the Appellant/Accused with the help of P.W.9 and P.W.10 who identified the Accused and recorded the confession statement of the Accused and based on the admissible portion of the confession, M.O.2 Vettuaruval was recovered from the lake channel near Arasampattu through Magazhar Ex.P.6 in the presence of P.W.9 and P.W.10. Indeed, the evidence of P.W.1 to P.W.6, P.W.7, P.W.9, P.W.10 and P.W.11 are quite consistent with the medical evidence and does not create any doubt in regard to the happening of occurrence and the injuries sustained by the injured/ P.W. 11 with the use of M.O.2 Knife.
90.Insofar as the delay in lodging the First Information Report, it is the stand of the Petitioner/De facto Complainant that as per the evidence of P.W.12, Express F.I.R. was handed over to Judicial Magistrate at 10.00 to 11.00 a.m., the mere delay in lodging the F.I.R. is not fatal to the prosecution and it is a relevant factor to be taken note of by the Court and a Court of Law is to examine whether any satisfactory explanation was over or otherwise, an inference may be drawn. Also that, if the delay was properly and satisfactorily explained, prosecution case could not be thrown out on the ground of mere delay and explanation has to be considered in the light of totality of facts and circumstances of the case, as per decision State of Himachal Pradesh V. Gian Chand, 2007 (1) S.C.C. (Cri.) 546.
91.Coming to the aspect of close relatives of the victim being an interested witnesses in the present case and their version cannot be accepted, it is the plea of the Petitioner/De facto Complainant that the evidence of interested witnesses could not be thrown out overboard but has to be scrutinised carefully and critically before accepting them, as per decision of the Hon'ble Supreme Court in Rambharosey V. State of Uttarpradesh, 2010 (1) S.C.C. 722.
92.Besides this, it is also the plea of the Petitioner/De facto Complainant that the contradictions, inconsistencies, exaggerations or embellishments and the exaggerated story put up by the prosecution about the start of the incident could not wash away the prosecution story of the entire incident proved by the eyewitnesses, as per decision of the Hon'ble Supreme Court in Parasuram Pandey V. State of Bihar, 2004 (13) S.C.C. 189.
93.In regard to the doubt as to the recovery of M.O.2 Knife projected on the side of the Appellant, it is the stand of the Petitioner/ De facto Complainant that P.W.14 (Inspector of Police) after taking up the investigation went to the place of occurrence and prepared the Ex.P.2 - Observation Mahazar and Ex.P.8 - Rough Sketch and he recovered the scooter from the place of occurrence and further, on 10.11.2001 he arrested P.W.9 and P.W.10, who identified the Accused, and recorded the confession statement of the Accused and based on the admission portion of the confession statement of the Accused, the recovery of M.O.2 Vettuaruval was recorded from the lake channel near Arasampattu through Ex.P.6 - Mahazar in the presence of P.W.9 and P.W.10. In this regard, a small contradiction relating to the recovery of M.O.2, as spoken to by some of the prosecution witnesses, is not fatal to the entire prosecution case.
94.In regard to the fact that the blood stained cloth was not recovered by the prosecution, a plea is taken on behalf of the Petitioner/De facto Complainant that the non-recovery of blood stained cloth is not a serious defect and the same would not affect the prosecution case in any manner.
95.The stand taken on behalf of the Petitioner/De facto Complainant is that P.W.4, in his evidence (in cross examination), had stated that he had not informed the Doctor (P.W.7) that victim/P.W.11 was assaulted by unknown people and just because in Ex.P.4 - Wound Certificate, it was mentioned under the caption 'No. of persons (male/ female) involved in the offence' as 'Unknown People', the presence of P.W.4 could not be doubted at the time of admission of injured P.W.11 in C.M.C. Hospital.
96.Apart from the above, it is the plea of the Petitioner/De facto Complainant that P.W.7 (Doctor) clearly deposed that injury No.1 stab injury on the left side of chest could be caused and while stabbing by means of use of edge of M.O.2 knife and further, admitted that injury No.2 that happened was left forearm (dressing done), injury No.3, lacerated on the left eye brow, injury No.4, 8 cm transverse laceration deep to spinous process of the upper cervical vertebrae could be caused by M.O.2 Knife and as such, the plea taken on behalf of the Appellant that P.W.7 (Doctor), in his evidence, had stated that sharp edged weapons did not cause lacerated injury and only cut injuries were possible, could not be countenanced.
97.The stand projected on behalf of the Petitioner/De facto Complainant is that P.W.14 (Investigating Officer), in his evidence, had stated that there was serious law and order problem in their locality and therefore, the statement of witnesses and other documents sent to Court had not reached in proper time and since the explanation offered was a natural one and the delay in regard to the 161 Cr.P.C. statements and other documents being despatched to Court was not fatal to the prosecution.
98.In regard to the delay in sending copy of the First Information Report to the concerned Judicial Magistrate, on behalf of the Petitioner /De facto Complainant, the decision of the Hon'ble Supreme Court, in Anil Rai V. State of Bihar, (2001) 7 Supreme Court Cases 318, is relied on, wherein, at page 321, it is mentioned that 'The delay is not material when prosecution gives cogent and reasonable explanation for it'. Further, in the aforesaid decision, at page 322, it is observed that 'Doubt on authenticity of FIR can be based not on every delay but only on extraordinary and unexplained delay'. Furthermore, it is also held that 'Merely because names of some of the PWs had not been mentioned in FIR, testimony of those PWs does not become unreliable'.
99.Also, on behalf of the Petitioner/De facto Complainant, a reference is made to the decision of the Hon'ble Supreme Court in Manga Alias Man Singh V. State of Uttarakhand, (2013) 7 Supreme Court Cases 629, at special page 631, wherein it was observed and held that 'The delay of 3 days in sending FIR to Magistrate was not fatal'. Further, in the aforesaid decision, at page 641, in paragraph Nos.25 & 26, it is observed as follows:
25.Again in Shivlal v. State of Chhattisgarh, (2011) 9 SCC 561, the significance and relevance relating to sending a copy of FIR to the Ilaqa Magistrate has been explained as under in para 18: (SCC p.567) 18. ... The Magistrate must be immediately informed of every serious offence so that he may be in a position to act under Section 159 CrPC, if so required. The object of the statutory provisions is to keep the Magistrate informed of the investigation so as to enable him to control investigation and, if necessary, to give appropriate direction. However, it is not that as if every delay in sending the report to the Magistrate would necessarily lead to the inference that the FIR has not been lodged at the time stated or has been ante-timed or antedated or the investigation is not fair and forthright. In a given case, there may be an explanation for delay. An unexplained inordinate delay in sending the copy of the FIR to the Ilaka Magistrate may affect the prosecution case adversely. However, such an adverse inference may be drawn on the basis of attending circumstances involved in a case.
26.In the case on hand nothing was put to PW 13 (investigating officer) as regards the alleged delay in sending the FIR to the Magistrate and/or that any prejudice was caused to the appellants on that account. It would have enabled the investigating officer to explain the reason for the delay. In any event nothing has been shown as to any prejudice caused to the appellants on the ground of alleged delay in sending a copy of FIR to the Magistrate.
100.Insofar as the delay in sending statement of witnesses recorded by the Investigating Officer to the Court etc., on behalf of the Petitioner/De facto Complainant, a reliance is placed on, to the decision of the Hon'ble Supreme Court in Abu Thakir and others V. State of Tamil Nadu represented by Inspector of Police, Tamil Nadu, (2010) 5 Supreme Court Cases 91, wherein it is observed and held that 'mere delay in sending the statements of eyewitnesses recorded to I.O. to Court would not per se make their evidence unacceptable unless something glaring is brought on record to doubt their presence at the place of occurrence'. Further, it is also laid down that 'Effect of delay in sending vital documents to Court would have to be assessed and appreciated on facts and circumstances of each case and in the instant case, two consecutive murders had rocked the entire city and widespread bandobasth was arranged in surrounding areas and in such circumstances, the Investigating Officer cannot be faulted for such delay and moreover, the Investigating Officer was in charge of maintaining law and order in the area, which fact satisfactorily explained the delay'.
101.To lend support to the plea that interested witnesses cannot be ignored, on behalf of the Petitioner/De facto Complainant, the decision of the Hon'ble Supreme Court, in Ram Bharosey V. State of Uttar Pradesh, (2010) 1 Supreme Court Cases 722, at page 723, is cited wherein, it is observed and held that 'Interested witness is one who is interested in securing conviction of a person out of vengeance or enmity or due to disputes relating to properties and merely because a witness is a close relative of deceased, he does not become an interested witness and the version of an interested witness cannot be thrown overboard but has to be scrutinised carefully and critically before accepting the same'.
102.In regard to the contradictions, inconsistencies, exaggerations or embellishments, on behalf of the Petitioner/De facto Complainant, the decision of the Hon'ble Supreme Court, in Parsuram Pandey and others V. State of Bihar, 2004 (13) Supreme Court Cases 189, at page 190, is cited to the effect that 'Exaggerated story put by the prosecution about the start of the incident, held, cannot wash away the prosecution story of the entire incident proved by eyewitnesses'. Also, on behalf of the Petitioner/ De facto Complainant, in the aforesaid decision, at page 198, a reference is made to the paragraph 17, which runs as follows:
17.It is lastly submitted by the learned counsel for the accused/appellants that the statement under section 313 Cr.P.C. of the accused persons have been recorded in a most cursory, casual and perfunctory manner by the Sessions court. It is urged that this is a normal practice followed in the court in the State. The manner in which the trial court recorded the statement under Section 313 Cr.P.C. of the accused persons, is not in accordance with law and, therefore accused-appellant are entitled for the benefit as they have not been provided with sufficient opportunity to explain the circumstances appearing in evidence against them. We have perused the statement under Section 313 Cr.P.C. and the question formulated by the trial court in the present case and we may say that it is far from satisfactory. This court time and again has laid down that it is obligatory on the part of the trial court to examine the accused for the purpose of enabling the accused personally to explain any circumstance appearing in evidence against him. If such opportunity is not afforded, the incriminating piece of evidence available in the prosecution evidence against the accused cannot be relied upon for the purpose of recording the conviction of the accused person. It is imperative on the court to record the statement under Section 313 Cr.P.C. of the accused persons so as to give opportunity to the accused persons to explain any incriminating circumstance proved by the prosecution. The duty cast on the court cannot be taken lightly. However, we find that no argument has been advanced by the counsel for the appellants in the trial court or before the High Court on the basis of improper recording of the statement under Section 313 of the Cr.P.C. In the present case, the counsel for the accused/appellant could not point out to us any prejudice being caused to the accused/appellants on account of the irregular, imperfect statement recorded under Section 313 of the Cr.P.C. That being the case, the accused are not entitled for any benefit for the lacuna in recording the statement of the accused under Section 313 of the Cr.P.C.
103.That apart, on behalf of the Petitioner/De facto Complainant, a reference is made to the decision of the Hon'ble Supreme Court in Umesh Singh V. State of Bihar, (2013) 4 Supreme Court Cases 360, at special page 362, wherein it is observed that 'Preference to information given by eyewitness rather than information given by hearsay witness'. Also, it is observed and held that P.W.14, Investigating Officer, in his evidence that P.W.4 was a Hearsay evidence and therefore, his information could not have been treated as F.I.R., and treating the statement of P.W.2, by P.W.9, as eyewitness informant as F.I.R. was perfectly legal and valid'.
104.On behalf of the Petitioner/De facto Complainant, the decision of the Hon'ble Supreme Court in Raju Alias Narinder Kumar V. State of Haryana, (2011) 14 Supreme Court Cases 636, is cited to the effect wherein it is, inter alia, held and observed that 'Weapon of offence (knife) was recovered at disclosure of the Appellant and P.W.5, P.W.13 & P.W.14 have given a vivid description as to the manner in which injuries with aid of knife were caused to M, K and S, respectively and further, injuries on persons of deceased are at same vital parts of bodies, as described by witnesses and held that there is no reason to doubt their credibility or trustworthiness'.
105.On behalf of the Petitioner/De facto Complainant, a reliance is placed on the decision of the Hon'ble Supreme Court in Veluswamy and others V. State of Tamil Nadu, (1983) 3 Supreme Court Cases 493, at special page 501 & 502, wherein in paragraph 16, it is observed as follows:
16.We must mention in the last that learned counsel for the appellants read out a statement of PW 1 to show that his description of the manner in which the accused were wielding their weapons was highly improbable. The learned counsel tried to show how a bichuva is normally wielded. There is no material on record to bear out his assertion nor can we indulge in speculation or mere conjectures at his behest. It must be remembered that PW 1 Masayappa Gounder was in the rear seat of the car about 125 feet away from the spot where the deceased Khaja Moideen was assaulted with bichuvas and knife. It was but natural that he could not have noticed the manner in which they were used. Nor is there any basis for the suggestion of the learned counsel that punctured wounds would have been caused and not the incised wounds. P.W.15 Dr. Giriappa has clearly stated that the injuries were caused by the seized weapons. It is not necessary when a bichuva is used on a fleshy part of the body that there would be a punctured wound. A bichuva has sharp edges on both sides and when it is drawn out, the outer appearance it leaves is of an incised wound. The doctor has stated that many internal organs were cut which shows that the weapons in question were used in the assault. Further, all the wounds are not incised wounds and there are some punctured wounds as well. Resume of Evidence of Prosecution Witnesses:
106. In this connection, this Court makes a pertinent reference to the evidence of prosecution witnesses for fuller and better appreciation of the merits of the matter in issue.
(1) P.W.1/De facto Complainant (Sarathy), in his evidence, had deposed that on 06.11.2001 (Tuesday), himself and the injured brother P.W.11 (Thirunavukkarasu) were talking at the Adukkamparai Bus stand at about 8 p.m. in the night and thereafter, they proceeded to their house, at that time, he was on the eastern side of the road and P.W.11 (Thirunavukkarasu) went on the direction of western side to bring the scooter M.O.1 which was in front of the shop near the bus stand and at that time, in their Village Panchayat Election took place 20 days prior to the occurrence and in the election, his brother-P.W.11 contested as an independent candidate at Adukkamparai for the post of President and his opponent was one Thanjiammal, who contested on behalf of the PMK party on Mango Symbol and since the Appellant/ Accused supported the candidate who stood on PMK party ticket their arose a quarrel between his brother P.W.11 and the Appellant and at that time, the Appellant informed his brother P.W.11 that 'he will see him next'.
(2) It is the further evidence of P.W.1 that his brother P.W.11 was defeated in the election and the persons who were supported by the Appellant/Accused won the elections and subsequently, the Appellant had stated that they have won, in future he will see and also stated that he would finish off and that the present case, occurrence took place 20 days of the incident. Added further, in his evidence, had proceeded to state that when his brother P.W.11 went for taking his scooter at that time out of previous enmity, the Appellant/Accused cut his brother P.W.11 on his left side neck, left side chest and upper portion of the left side wrist, and near the left side of the eye cut him with knife, as a result of which, his brother P.W.11 fell unconscious. Moreover, P.W.1 came running by saying uttering 'Don't cut Don't cut' and on his backside, people came running the Appellant/Accused ran on the backside and in that place, there was electric light burning to a certain extent in a shop and later they took him to the Vellore Government Hospital in an Auto and since at the said Hospital, the Doctors advised to take him further treatment, P.W.11 was taken to the Vellore C.M.C. Hospital and at that time, he narrated the aforesaid incident orally which was reduced into writing in which he affixed his signature and his complaint was Ex.P.1. That apart, his brother P.W.11 took treatment as an in-patient for more than a month and on being enquired by the Police, he narrated the incident and M.O.2 Knife was the one used to cut his brother.
(3) P.W.1 (in his cross examination) had deposed that he does not know to read and write but he used to sign alone and that he had not written the contents of Ex.P.1 Complaint and he narrated the details to a person outside the Hospital and directed him to write the contents of Ex.P.1 and on his writing, he signed in the same but he does not know who has that person. It is significant to note that P.W.1 had also deposed that at the time of writing of the Complaint-Ex.P.1 one Kirubanandam, Vinayagam, Mani and others were there and that Ex.P.1- Complaint was written at 10'o clock in the morning of 07.11.2001 at C.M.C. Hospital and that his brother P.W.11 Thirunavukkarasu was admitted into the C.M.C. Hospital on 06.11.2001 at about 8.45, 9.00 p.m. during night and at the time of his admission in the said Hospital witness Suresh (Cable Operator) was present and he along with Suresh (P.W.4), his brother P.W.11 came to C.M.C. Hospital from Adukkamparai and that the persons who accompanied him knew that the Appellant/Accused had cut P.W.11 and this was also known to Suresh (P.W.4) and that at the C.M.C. Hospital Doctor enquired him and Suresh (P.W.4) and they informed that only the Appellant/Accused had cut his brother P.W.11.
(4) Moreover, it is the further evidence of P.W.1 that they went to Government Hospital before proceeding to C.M.C. Hospital and they took his brother to the Emergency Ward where the Doctor had seen him and that he gave first aid to the injury sustained and he enquired as to how the incident had occurred and after giving the first aid to his brother informed to take him to the C.M.C. Hospital and that admitted his brother in C.M.C. Hospital and during the whole night he had not gone to his house. That apart, P.W.1 had proceeded to state that in his evidence to reach C.M.C. Hospital from Adukkamparai one has to pass through four Police stations and that police complaint was not given prior to the admission of P.W.11 into the Hospital and it was correct to state that the incident took place at Chitoor Cuddalore Highway and the bus stand was situated on the eastern side of the Highways and the Highways was situated on north-south side and on the western side, there was bus stop. Also that, it was correct to state that on north-west, south three sides, a wall was raised and the front side was a vacant one and that his brother went on the southern side of the bus stop.
(5) Continuing further, it is the evidence of P.W.1 that he along with his brother P.W.11 were talking approximately after 8.00 p.m. at the junction of Thuthupattu Vellore Road and at that time, he informed his brother P.W.11 to bring the Scooter and he crossed the road and was standing on the eastern side of the Vellore Road and that the Scooter was on the northern side of the bus stop and when he crossed on the eastern side and when he stood after turning he heard the screaming noise of his brother and later he saw his brother by crossing the road and he went near him on the western side he saw the Appellant cutting his brother and when he went to the place of occurrence, the Appellant indiscriminately cut his brother and he also saw the Appellant cut his brother P.W.11 on his head and only when his brother P.W.11 fell down, he saw that the Appellant had cut his brother on the left eye and that he saw one cut only with his own eyes and at that time, his brother P.W.11 fell down and the Appellant/ Accused ran away after seeing them. Also, P.W.1 in his evidence had deposed that when his brother P.W.11 fell down, he had not talked to him and he felt unconscious and when he went to the place of occurrence, at that time Kirubanandam, Manickam, Vinayagam came there and the said three persons had seen the Appellant cutting his brother P.W.11 and further that he had not brought his brother, Kirubanandam and he himself came there and all the cut incidents came to an end within four, five minutes and at the place of occurrence, the electric bulb was burning on the backside of the shops at the bus stand.
(6) It is the evidence of P.W.2 that the incident of his brother P.W.11 being attacked took place four years before during night 8.30 p.m. and that he was in the house he heard that his brother P.W.11 was suffered cut injury and went to the scene of occurrence and saw the same and there was prior animosity between his brother P.W.11 and the Appellant/Accused prior to the date of occurrence and that his brother P.W.11 contested for the post of Panchayat President and since the Appellant/Accused was in favour of his brother's opponents Settu, on the day of poll, there was an altercation between his brother P.W.11 and the Appellant and later a panchayat was held in the village and the panchayat directed them to go normally and prior to the occurrence 20 days before the Panchayat election took place and during election, the Appellant seeing his brother had stated that 'he would take care of him in one way' and 20 days later, the incident had taken place and after the occurrence his brother P.W.11 (Thirunavukkarasu) was taken in an Auto by his another brother P.W.1 (Sarathy), another Vinayagam, to the Vellore Government Hospital and since the doctors refused, they took him to the C.M.C. Hospital for treatment.
(7) P.W.2, in his evidence (in cross examination), had deposed that he went to the police station along with his elder brother P.W.1 on the next day of incident to give complaint and it was correct to state that in the police station they were informed that his brother P.W.11 (Thirunavukkarasu) was cut by the Appellant with this knife. That apart, it is the evidence of P.W.2 that it was correct to state that on the date of incident at 10.00 p.m. in the night, the Police on information came and saw the place of occurrence and his brother P.W.1 had not given any information to his house and another person came to the house and informed and further, he had not stated at the time of his examination by the police that his brother P.W.1 came to the house and informed him and also that he had not stated that his brother informed him at the shop and further they ran and saw. Moreover, he had also stated that his elder brother P.W.1 informed him that during night time when current was to be changed by taking advantage of the darkness, the incident had taken place and at the time of occurrence there was a moonlight and at the time when he went to the place of occurrence his brother P.W.11 was in an unconscious state.
(8) P.W.3, in his evidence, had stated that P.W.11 (Thirunavukkarasu) son of late Ekampara Gounder belongs to their village and on 06.11.2001 the occurrence had took place after 8.30 p.m. during night and that the injured P.W.11 was attacked by the Appellant with knife at a time when P.W.11 went for taking the scooter from the shop wherein the scooter was parked on the upper portion of the road and at that time, the Appellant cut P.W.11 with 'Veechu Aruval' on left side of his neck and further, the Appellant attacked P.W.11 on the left side wrist, on the upper left side of forearm and also cut him on the left side of the chest and that he had seen the knife which was Ex.M.O.2.
(9) Continuing further, P.W.3, in his evidence, had also spoken about the oral quarrel that took place in regard to the Panchayat election on 16.10.2001 for which the Appellant was canvassing votes in favour of Settu and Thanjiammal. In this regard, it is the evidence of P.W.3 that P.W.11 asked the Appellant not to do like this and because of which, an oral quarrel ensued. Later, a Village Panchayat was held in which he took plart and two sides were compromised by the Panchayat and on the next day the election result came in which P.W.11 was defeated and the two Appellant's supporters had won.
(10) P.W.3 had also deposed that in the second panchayat that was held after the announcement of election results, the Appellant had stated that their people had won and beyond that nothing could be done and yesterday itself you should have been finished and you will not be left without being finished and in the second panchayat, he took part and only thereafter the occurrence had taken place. Moreover, the injured/P.W11 was taken in an Auto by himself, Kirubanandam (P.W.2), Sarathy (P.W.1) to the Government Hospital and upon refusal by the doctors to admit the injured, the injured was sent to the Vellore C.M.C. Hospital an at the time of occurrence, the electric bulb was burning in the shops situated there and he along with P.W.1 ran in order to catch hold of the Appellant and at that time, the last cut attack was made by the Appellant on the left side eye of the P.W.11 and ran in the western direction in Maize field.
(11) P.W.4, in his evidence, had stated that he was at a distance of approximately 100 feet from the place of occurrence and at that time, in the occurrence place, the injured (P.W.11) was standing in the direction of eastern side and the Appellant (who has present in Court) came running from the Maize Field and attacked the injured firstly on the left side of the neck and the second attack was made by the Appellant on the left rib of the injured and when the injured/P.W.11 at the time of preventing the attack with his hands at that time the Appellant cut him on the left cheek and when he along with Vinayagam (P.W.3), Sarathy (P.W.1) ran in the direction of the occurrence place at that time, the Appellant/Accused ran away from the scene.
(12) P.W.4, also, in his evidence, speaks about the taking place of Panchayat Local Body Election on 16.10.2001 and other details narrated by P.W.3. That apart, he had also deposed that the injured was taken in an Auto by himself and P.W.3 (Vinayagam), P.W.1 (Sarathy) and brought him to the Government Hospital and for further treatment, he admitted P.W.11 at the C.M.C. Hospital by affixing his signature.
(13) It is significant for this Court to point out that P.W.4 (in his cross examination) had stated that at the time of occurrence, he was in the house and not in his shop. Further, he had deposed that he had not stated in his police enquiry that at the time of occurrence he was in his shop and when he was in the shop Manickam came and informed him about the details of cut attack made on P.W.1 and further, when P.W.1 Sarathy and Manickam made an endeavour to catch hold of the Appellant at that time, the Appellant/Accused ran away with the sickle and that P.W.11 fell unconscious in pool of blood and only on being informed by the said Manickam he came to the scene of occurrence and witnessed. Furthermore, it is the evidence of P.W.4 that before the Doctor at the Hospital he had stated as to how the injury taken place at P.W.11 for which he replied that the Appellant/Accused had cut P.W.11 and he had not stated to the Doctor that the unknown persons had made a cut attack on P.W.11.
(14) P.W.5, in his evidence, had deposed that he had affixed his signature in Ex.P.2 Observation Mahazar and in Ex.P.3 Seizure Mahazar (relating to scooter) and further in M.O.1 he had affixed his second signature and that the police prepared the rough sketch on 07.11.2001 when he proceeded for playing the band at Adukkamparai bus stop wherein the police were enquired about the occurrence relating to the attack made on P.W.11.
(15) P.W.6, in his evidence, had stated that on 06.11.2001 when he was in his house at that time Manickam came to his house and informed that the Appellant had cut P.W.11 and when he went to the place of occurrence, he found that the Appellant was lying in an unconscious state with cut injuries on his left side chest, left side wrist near left eye and he along with P.W.1, Kirubanandam (P.W.2), Vinayagam (P.W.3) took P.W.11 in an Auto to the Government Hospital and that the occurrence took place at about 8.45 p.m. during night time and in the opposite of tea shop of the occurrence place the tube light was burning and since they were informed at the Government Hospital that P.W.11 was in serious condition and also doctors advised them to take him to C.M.C. Hospital for further treatment and they admitted him in C.M.C. Hospital. P.W.6 (in his cross examination) had stated that during police enquiry he had stated that in the shop there was tube light and electricity brightness.
(16) P.W.7 (Doctor of C.M.C. Hospital), in his evidence, had deposed that on 06.11.2001, P.W.11 (Thirunavukkarasu) aged about 32 was brought before him to the Hospital (C.M.C.) at 10'o clock during night by his friend stating that P.W.11 was beaten and injured by some one and the friend of P.W.11 informed him that the occurrence took place at 9.00 p.m. in the night. Further that, P.W.11's friend informed him that the injured/P.W.11 was attacked by unknown person and the said person who accompanied P.W.11 was by name Suresh (P.W.4) and he could not remember whether along with the injured others came to the Hospital.
(17) It is the further evidence of P.W.7 that the injured P.W.11 came to the emergency treatment ward and later came to the Neurosurgery Department and he put sutures for the injury sustained on the neck of the injured and the injured had several injuries and further that the injured had injuries on his left hand upper portion of the wrist, on left side chest, near the left side eyebrow, also, there were injuries and the injury found near the eyebrow was measuring 4 c.m. and the injury on the neck was 10 c.m. in length and the injury on the neck of the injured P.W.11 was bone deep. Added further, the injury on the eyebrow was also like that and the injury found on the chest was also deep but he had not measured its depth.
(18) P.W.7 (in his cross examination) had categorically stated that in the Wound Certificate Ex.P.4 he had not mentioned about the use of weapon and further deposed that he had not measured the depth of injures 1, 2, 3 and in Ex.P.4 he had mentioned that the 4th injury was 8 c.m. in measurement and the injury No.4 have been in the neck of P.W.11 was also a lacerated injury and that the injury Nos.2 & 3 were also lacerated injuries and P.W.4, who accompanied P.W.11 to the Hospital before P.W.7 had not stated about the use of weapon and whether the injured was attacked by how many persons and also whether they were women or men and those details were not mentioned by him.
(19) P.W.8, in his evidence, had stated that he went to the place of occurrence only after being informed by P.W.4 and subsequently, P.W.11's brother P.W.1 came to the scene of occurrence and he travelled in the bus alone to reach the Government Hospital and later he went to C.M.C. Hospital and prepared to the admission of P.W.11 at C.M.C. Hospital, his entire village knew that the injured was attacked by the Appellant.
(20) P.W.9, in his evidence, had stated that on 06.11.2001 he had been to his son's STD booth to see him and at that time, during 8.30 p.m. in the night he heard screaming noise and went to the place to see the injured P.W.11 and he found that P.W.11 sustained injuries on his head, neck, chest and further, he was in unconscious state and he along with Vinayagam (P.W.3), another Vinayagam son of Gopal Gounder and P.W.1 took the injured P.W.11 in an Auto and brought him to the Government Hospital, Vellore for treatment and later took him to C.M.C. Hospital and admitted him for further treatment.
(21) It is the further evidence of P.W.9 that 3 days after the occurrence he along with Mani (P.W.10) went to Arasampattu for purchasing a wood and when they were proceeding behind her back, the Police Jeep was coming and at that time, the police enquired with them as to whether they had seen Kannan (Appellant) and they informed that the person coming there was the Appellant and the Police caught hold of the Appellant and questioned him as to whether it was true that he had attacked P.W.11 and he admitted the same for which the statement was written by the police and further, the police asked the Appellant as to where was the knife and the Appellant informed that he had put the knife on Lake channel and he informed that if he was taken to the concerned place he would produce the same and the knife which was shown in the Court was the knife produced by the Appellant and that admissible portion of the confession statement was Ex.P.5 and that he had signed in the confession statement and also that, the first signature found in the Mahazar belonged to him.
(22) P.W.9 (in his cross examination) had categorically stated that when the Appellant was identified to the police it was 11'o clock in the morning and firstly he had seen the police and later he had seen the Appellant. Also, it is the evidence of P.W.9 that the knife was found in the bush of lake channel and the knife was produced around 12.00 or 1.00 p.m. during day time and later the police took the Appellant along with them.
(23) P.W.10, in his evidence had stated that he saw P.W.11 on the next day of admission at C.M.C. Hospital and on the next day he returned to his house and two, three days later he along with Vinayagam (P.W.3) went to Arasampattu for purchasing the wood and at that place the police came in a Jeep and they asked with them as to whether they knew the Appellant for which they identified the Appellant by stating that he was coming behind them and that the Police enquired the Appellant and admitted that he made a cut attack on P.W.11 and when they enquired with him about the knife he informed that it was at lake channel and took them that place and they accompanied him to that place and that the Appellant produced M.O.2 Knife from the lake channel and handed over the same to the police and in the Mahazar prepared in this regard secondly he had affixed his signature.
(24) P.W.10, (in his cross examination) had clearly stated that when they identified the Appellant to the police it was around 9.00 a.m. and for obtaining the confession statement, it took nearly one hour and it was at 10'o clock in the morning they affixed their signatures. Further, it is the evidence of P.W.10 (in cross examination) that there was movement of people at a place where they identified the Appellant and that the police came in a Jeep from the western direction to the eastern direction and that the Appellant also came in their direction, they were proceeding to and that the knife was found on the side of plant bush and the knife was not in the water.
(25) P.W.11, in his evidence, had deposed that about the date of election on 16.10.2001 etc. and further stated that it was not correct to state that some group of people had attacked during darkness and that the Appellant had not attacked. Further, he had stated that when the election dispute arose on 16.10.2001 he had not lodged a complaint against the Appellant/Accused.
(26) P.W.12 (Head Constable), in his evidence, had deposed that he had handed over the Tapal to the Learned Judicial Magistrate I in Court after 10'o clock in the morning on 07.11.2001 and it was correct to state that on 07.11.2001 at about 7'o clock in the evening the Magistrate had signed.
(27) P.W.13, in his evidence, had stated that while he was serving as Assistant at Vellore Taluk Police Station on 07.11.2001 at about 10'o clock in the morning he received the complaint of Sarathy, Son of Ekamparam, (P.W.1) of Adukkamparai and registered a case in Vellore Rural Police Station Crime No.499/2001 under Section 307 I.P.C. and sent the copies of the same to the Inspector of Police, concerned officials and the Court for perusal. Also that, the Inspector conducted further investigation in the matter and Ex.P.7 was the First Information Report.
(28) It is the further evidence of P.W.13 that he handed over the First Information Report at about 10.30 a.m. in the morning and the distance between the Police Station and the residence of the Judicial Magistrate was approximately half a kilometer and he does not know the reason as to the reaching of FIR belatedly at 7.30 p.m. during evening before the Magistrate.
(29) P.W.14, in his evidence, had stated that after receipt of Express F.I.R. Report (registered by the Vellore Rural Police Sub Inspector] in Crime No.499/2001 under Section 324, 326 and 307 I.P.C. on 07.11.2001 at 10.15 a.m., he went to the place of occurrence and inspected the same and at about 10.30 a.m. Prepared Ex.P.8-Rough Sketch and in the presence of witnesses prepared Observation Mahazar and also at about 11'o clock at the same place in the presence of witnesses seized scooter under Mahazar. He also examined witnesses and when he searched for the Appellant/Accused he came to know through Vinayagam (P.W.3) and Mani (P.W.10) of Adukkamparai Village that they had seen the Appellant coming from Amirthy Road and they identified the Accused at about 6.00 a.m. In the morning at Nanjundapuram Amirthy Junction Road and arrested the Accused and recorded the confession statement in the presence of witnesses. Moreover, he seized the sickle through Mahazar witnesses Vinayagam (P.W.3) and Mani (P.W.10) which was produced by the Appellant from the hidden place of lake channel and the case properties were sent belatedly through Form No.95 and examined the witnesses, examined the Doctor who treated the complainant and finally on 01.03.2002 after obtaining necessary opinion from D.D.P. filed the charge sheet.
(30) P.W.14 (in his cross examination) had stated that on 10.11.2001 at about 6'o clock in the morning the Appellant was arrested and for writing his confession, it took 45 minutes to one hour and for seizure of knife at 7.30 a.m. in the morning, a mahazar was prepared and M.O.2 knife was seized from lake channel and M.O.2 Knife was found on the sand area of lake channel.
Discussions:
107.At the outset, in regard to the plea taken on behalf of the Appellant that the trial Court had not taken into account the contradictions in regard to the evidence of P.W.1 and P.W.11, it is to be pointed out that P.W.1 (elder brother of injured P.W.11) had stated (in his cross examination) that on 06.11.2001 when P.W.11 was admitted in C.M.C. Hospital at about 8.45 p.m., 9.00 p.m. during night and at that time, P.W.4 was present and further, himself, P.W.4, and P.W.11 came from Adukkamparai to C.M.C. Hospital. However, it is the evidence of P.W.2 that he along with P.W.1 and Vinayagam (P.W.3) took P.W.11 in an Auto to the C.M.C. Hospital, Vellore. Moreover, P.W.3, in his chief examination, had deposed that he along with P.W.1 and P.W.2 took P.W.11 to the Hospital, but P.W.4 had stated in his evidence that he along with P.W.1 and P.W.3 (Vinayagam) took P.W.11 to Hospital and further stated that he admitted P.W.11 in C.M.C. Hospital and affixed his signature. That apart, P.W.6 had deposed in his evidence that he together with P.W.1, P.W.2 and P.W.3 took P.W.11 in an Auto to the Hospital. However, he had stated that in his evidence that (in cross examination) he had not taken P.W.11 to the Hospital in an Auto, but subsequently went to the Hospital by bus. Also that, P.W.9, in his evidence, (in chief examination) had stated that he along with P.W.1 and P.W.3 took P.W.11 to the Hospital. Although there are minor variations/trivial discrepancies in the evidence of aforesaid prosecution witnesses in regard to the factual aspect of injured/P.W.11 being taken to the C.M.C. Hospital, these would not affect the prosecution case because of the simple reason the fact of the matter is that P.W.11 was initially taken to the Vellore Government Hospital and since the Doctors advised to take him for further treatment, he was taken to Vellore C.M.C. Hospital.
108.Coming to the aspect of none of the witnesses, who took P.W.11 firstly to Government Hospital, Vellore and later admitted him into C.M.C. Hospital, Vellore, had not lodged a complaint immediately, it is to be pointed out that each Homo Sapien would act/react in a situation differently and the non-filing of a complaint immediately before the concerned police in any way does not shake the edifice of the prosecution, in the considered opinion of this Court.
109.In regard to the stand taken on behalf of the Appellant that the presence of light was not stated during investigation by the witnesses in their statements recorded under Section 161 (3) Cr.P.C. and further that the trial Court had failed to take into consideration that the occurrence took place during night hours, it is true that the witnesses in their statements under Section 161 (3) Cr.P.C. before the Police had not stated about the presence of light at the time of incident, but this by itself would not affect the credibility of the prosecution case in any manner whatsoever, in the considered opinion of this Court.
110.In fact, a Court of Law would be fastidious with mere omissions in the statements recorded under Section 161 Cr.P.C. Also that, the stand of the Appellant that the presence of light was not mentioned in the statements of witnesses recorded under Section 161 Cr.P.C. would not be fatal to the prosecution case, when the case is otherwise established by available and reliable evidence on record. In reality, the omission to mention about the presence of light by the witnesses during their enquiry by the Police and also at the time of recording their 161(3) Cr.P.C. statements does not mean and imply that their evidence adduced before the trial Court ought to be rejected in toto.
111.At this stage, this Court points out that even the marginal variations found in the statement of witnesses recorded under Section 161 Cr.P.C. could not be treated as improvements, as opined by this Court. Of course, this Court is alive to the fact that the Criminal Procedure Code and the Evidence Act do not provide any privilege to the makers of the statements under Section 161 Cr.P.C.
112.As regards the contention put forward on the side of the Appellant that P.W.1, in his evidence, had deposed that he was standing on the eastern side of the road at the time of occurrence. But P.W.8, in his evidence, had stated that P.W.1 came to the occurrence place after he reached there, that contradiction relegates to the background because of the fact that P.W.2, P.W.3, P.W.4, P.W.6 and P.W.9, in their evidences before the trial Court, had not stated anything about the presence of P.W.8 at the place of occurrence [notwithstanding the fact that P.W.8 (in his cross examination) had stated that after being informed by P.W.4, he went to the place of occurrence]. Moreover, the aforesaid witnesses, in their evidence, had stated that they had taken the injured/P.W.11 in an Auto to the Vellore Government Hospital for treatment and for further treatment, they admitted him at Vellore C.M.C. Hospital as an inpatient. However, these witnesses had not deposed before the trial Court that along with them P.W.8 also accompanied them to admit the injured/P.W.11 either at the Government Hospital, Vellore or at C.M.C. Hospital as the case may be. In this background, it cannot be contended on behalf of the Appellant that P.W.1 Complainant was not at all present at the time of occurrence and due to election enmity between the Appellant/ Accused and the victim/injured P.W.11's family, the Appellant was implicated by P.W.1 as if he was an eyewitness to the occurrence.
113.With regard to the stand taken on behalf of the Appellant that P.W.1 contradicts his Complaint (Ex.P.1), in that he had stated in his chief examination that he and P.W.11 were talking together at Adukkamparai bus stand at about 8.00 p.m. and proceeded to their house and at that time, P.W.1 was on the eastern side of the road and P.W.11 went towards the western side of the road to take the scooter and as such, there was a contradiction in this regard, at this stage, this Court relevantly points out that P.W.1 (in cross examination) had categorically stated that his brother injured/P.W.11 (Thirunavukkarasu had proceeded to the southern side of the bus stop. It is true that a perusal of Ex.P.8 Rough Sketch indicates that the bus stop was only on the western side of the road. Furthermore, it transpires from the evidence of P.W.1 that he asked his brother P.W.11 (injured) to take the scooter and after crossing the road he was standing on the eastern side in Vellore Road.
114.Insofar as the contradiction in the evidence of P.W.1, it is to be pointed out that P.W.11 (injured) had stated in his evidence (in chief examination) that he and P.W.1 were talking at Adukkamparai bus stop during 8.30 p.m. in the night and at that time, his brother P.W.1 informed him that they could proceed to their house and asked him to take the scooter and hence, he went near the scooter which was parked opposite in the shop. But, P.W.11 had deposed (in his cross examination) that at the time of occurrence, he had parked the scooter on the eastern side and therefore, there is variation in this regard in between the evidence of P.W.1 and P.W.11. The said minor discrepancy in regard to the direction as to the parking of scooter could not lead to an inference/presumption that the place of occurrence was shown as imaginary one in Ex.P.8 Rough Sketch by the prosecution, in the considered opinion of this Court. In fact, the evidence of injured/P.W.11 in regard to the parking of the scooter at the time of occurrence on the eastern direction assumes significance because of the fact that he was the affected person and hence, his evidence was worthy of acceptance, as opined by this Court than that of P.W.1 in this regard, because of the simple fact that the injured/ P.W.11 was entitled to depose in regard to the matters which were within his knowledge at the time of occurrence (including the contradiction of parking of scooter etc.).
115.Dealing with the plea taking on behalf of the Appellant that the Appellant/Accused was unconnected with the present case and in fact, at the time of occurrence on 06.11.2001 there was darkness and there was no electricity and in fact, Ex.P.4 Wound Certificate mentioned that 'No. of persons (male/female) involved in the offence' as 'Unknown people', it is to be pointed out that P.W.3, in his evidence, had stated that at the time of occurrence, there was Electric Light/Bulb was burning in the shops at the occurrence place. Also that, P.W.2 had stated in his evidence that he was informed by P.W.1 that taking advantage of the darkness [at the time of change of electricity supply during night], the Appellant had made a cut attack on P.W.11 and further, he informed that there was moonlight. What emerges from the deposition of P.W.3 and P.W.2 is that at the time of occurrence, there was brightness because of the burning of electric bulb in the shops at the place of occurrence and also there was moonlight. In any event, it cannot be contended on behalf of the Appellant that there was no brightness at the time of occurrence [although P.W.2 in his evidence (in cross examination) had stated that the darkness at the time of change of electricity supply was taken advantage of by the Appellant when he attacked P.W.11]. Resultantly, this Court opines that the Appellant cannot take advantage of the mentioning in Ex.P.4 Wound Certificate made by doctor P.W.7 that in the offence unknown people were involved.
116.In regard to the contention of the Appellant that there was no eyewitness to the incident, it is to be pointed out that in Ex.P.1 Complaint, P.W.1 (brother of injured/P.W.11) had, inter alia, stated that when his brother P.W.11 raised screaming noise, at that time, he had stated that '... Don't cut him' and before he could prevent the Appellant had ran away with the Vettuaruval. Before that P.W.1 in Ex.P.1 - Complaint had referred to the utterances made by the Appellant/Accused at the time of occurrence on 06.11.2001 at 8.45 p.m. and also spoken about the indiscriminate cut attack made by the Appellant on P.W.11 at the various places on his body [in detail, already narrated in P.W.1's evidence]. Further, in Ex.P.1 Complaint P.W.1 had also stated that he along with his younger brothers [Kirubanandam (P.W.2) and Vinayagam (P.W.3)] took the injured/ P.W.11 in an Auto that was proceeding and admitted him Vellore Government Hospital and further that P.W.11 was in serious condition. As such, the contention advanced on behalf of the Appellant that there was no eyewitness to the incident could not be countenanced, in the considered opinion of this Court.
117.Insofar as the plea taken on behalf of the Appellant that Ex.P.1 Complaint projected by P.W.1 [on the next day of occurrence] was a cooked up one, at this stage, this Court pertinently points out that a perusal of Ex.P.1 Complaint lodged by P.W.1 latently and patently indicates that since P.W.1 had stayed with the injured/victim P.W.11 at the Hospital he had given the complaint on 07.11.2001 and only on receipt of the said report a case was registered on 07.11.2001 at 10.00 hours in Vellore Taluk Police Station Crime No.499/2001 under Section 307 I.P.C. by the Sub Inspector of Police (P.W.13) and in fact, the Express F.I.R. was marked as Ex.P.7. In view of the fact that P.W.1 had given reasonable and acceptable explanation that since he was in the Hospital along with his brother P.W.11 on the day of incident on 06.11.2001 and later only lodged a complaint on 07.11.2001, it could not be said that Ex.P.1 Complaint lodged by P.W.11 was a false and cooked up one, in the considered opinion of this Court.
118.Dealing with the stand of the Appellant that Express F.I.R. - Ex.P.7 was sent to Court at 7.30 p.m. on 07.11.2001 and the same was not sent at the earliest point of time and therefore, it was fatal to the prosecution, it is to be pointed out that P.W.12 (Head Constable), in his evidence (in chief examination), had stated that Ex.P.7 F.I.R. was sent to the Judicial Magistrate on 07.11.2001 after 10.00 a.m. But, in his cross examination, he had stated that he submitted the F.I.R. between 10.00 a.m. to 11 a.m. and in this regard, the Learned Counsel for the Appellant submits that in ExP.7 Express F.I.R., the Learned Judicial Magistrate had signed in green ink that the same was received at 7.30 p.m. Further, the Learned Counsel for the Appellant brings it to the notice of this Court that the occurrence took place on 06.11.2001 at 8.45 p.m. but the information at the Police Station was received on 07.11.2001 at 10 hours and when the Learned Judicial Magistrate I, Vellore had received Ex.P.7 F.I.R. at 7.30 p.m., admittedly, there was a delay in regard to the translation of F.I.R. to the Area Judicial Magistrate and in fact, the Magistrate's residence was at a distance of half a kilometer from the Police Station and that the delay in question was fatal affecting the case of prosecution.
119.At this juncture, this Court pertinently points out that P.W.1, in Ex.P.1 (Complaint), had specifically stated that since he remained with his brother P.W.11 at the Hospital, he lodged a complaint on 07.11.2001. Indeed, the information was received by the Vellore Taluk Police Station at about 10.00 a.m. on 07.11.2001 (even though the occurrence took place at 8.45 p.m. on 06.11.2001) and although the Learned Judicial Magistrate I, Vellore had affixed his initial in Ex.P.7 Express F.I.R. that he received the same on 07.11.2001 at 7.30 p.m., in the instant case, it cannot be brushed aside that the delay in lodging Ex.P.1 Complaint and the registration of Express F.I.R. - Ex.P.7 were properly explained on the side of the prosecution and based on the purported delay neither Ex.P.1 Complaint (lodged by P.W.1 Sarathy) nor the registered Express F.I.R. - Ex.P.7 could be thrown out. In fact, in Ex.P.1 (Complaint) and in Ex.P.7 (F.I.R.), the delay in lodging the complaint and F.I.R. were properly explained and the delay in any event could not be viewed in isolation, ignoring the ground realities.
120.In regard to the plea taken on behalf of the Appellant that Ex.P.1 Complaint does not speak about the injured/P.W.11 being taken into C.M.C. Hospital, Vellore after he was admitted into Government General Hospital, Vellore, it is to be pointed out that Ex.P.7 F.I.R. registered, but Ex.P.1 Complaint lodged by P.W.1 is not an Encyclopaedia and the omission in this regard would not in any way affect the case projected by the prosecution, as opined by this Court. After all, a F.I.R. is registered only to set the Ball in Motion and it need not contain an exhaustive account of the incident. Trivial omissions can be ignored by a Court of Law where the prosecution evidence is otherwise found reliable. Moreover, when the Informant/ Complainant is in a disoriented mind and in distress, one cannot expect minute/graphic details of the incident in a chronological fashion. As a matter of fact, belated lodging of F.I.R. is immaterial. In the present case, the facts mentioned in the F.I.R. are quite consistent with the narration of prosecution witness in the evidence and the omission of some details pertaining to the occurrence either in Ex.P.1 Complaint or in Ex.P.7 F.I.R. is not enough to jettison the document. To put it precisely, the omission to mention about the injured/P.W.11 being taken to C.M.C. Hospital, Vellore from Vellore Government Hospital could not be construed to be a sufficient one so as to reject the testimony of injured witness viz., P.W.11 and other prosecution witnesses who took P.W.11/injured to the C.M.C. Hospital at Vellore.
121.In regard to the stand taken on behalf of the Appellant that P.W.2 (brother of injured/P.W.11) in his evidence (in cross examination) had submitted that the Police on information came to the occurrence place and inspected the place on the night of occurrence on 06.11.2001 at 10.00 p.m. and from this, it is quite evident that information had gone to the police immediately after the occurrence and they came to the spot at 10.00 p.m. on the date of occurrence and since the identity of the assailants were not known and there was no eyewitness, no one had lodged any complaint to the police and further that, Ex.P.7 F.I.R. was a manipulated and cooked up only on 07.11.2001 etc., it is to be pointed out that P.W.2 only (in his cross examination) had stated to a suggestion that it was correct to state that on the day of occurrence at 10.00 p.m. in the night police, on coming to know of the information, came and visited the scene of occurrence and this evidence of P.W.2 although it is quite contrary to Ex.P.1 Complaint dated 07.11.2001, in fact, P.W.14 (Investigating Officer) had clearly stated that his evidence that he went to the scene of occurrence after receipt of Express F.I.R. on 07.11.2001 at 10.30 and prepared Ex.P.8 Rough Sketch etc. based on the suggestion put to P.W.2 that it was correct to state that Police had coming to know of the information on the day of occurrence at 10.00 p.m. they had come to the scene of occurrence and the evidence of P.W.2 or the purported admission of P.W.2 in this regard could not be taken advantage of on the side of the Appellant/Accused in view of the fact P.W.14 (Investigating Officer) had clearly stated otherwise in his evidence to the effect that only on 07.11.2001 he had visited the scene of occurrence at 10.30 p.m. after receipt of Express F.I.R. at 10.15 a.m. On 07.11.2001 and prepared Ex.P.8 Rough Sketch etc. As such, the evidence of P.W.14 (Investigating Officer) stands on a higher footing than that of the evidence of P.W.2 in regard to the police visiting the place of occurrence and in short, the evidence of P.W.2 as stated supra when it is contrary to fact would not in any way heighten or improve the case of the Appellant in his favour.
122.Coming to the stand of the Appellant that P.W.3 (Vinayagam) was only a 'Hearsay Witness' and he adduced evidence as if he was an eyewitness to the occurrence, it is to be pointed out that P.W.3 in reality in his evidence had spoken about the Panchayat Election that took place on 16.10.2001, the wordy quarrel that arose, later the convening of Village Panchayat etc. and these matters, as narrated by P.W.3, only speak of 'Motive' on the part of the Appellant as to prior enmity between the Appellant and P.W.11 and further that, in the said election, P.W.11 had lost and that the Appellant's supporters had won. The narration of sequences prior to the occurrence on 06.11.2001 by P.W.3 in his evidence could not be characterised as a 'Hearsay one', in the considered opinion of this Court. P.W.3, in his evidence, had stated that at the time of occurrence, at that place in the shops Electric Bulb was burning and he along with P.W.1 ran to catch hold of the Appellant, but, in his cross examination, he denied the suggestion that during the Police enquiry, he had stated that he and P.W.2 (Kirubanandam) when they were in the shop at that time P.W.1 came and informed them about the incident and thereafter they had visited the place of occurrence and at that time, P.W.11 was lying in the scooter in slanting posture and further, in the Police enquiry, he had stated that he went in search of catching hold of the Appellant.
123.It is to be pointed out that though the evidence of P.W.3 in regard to the fact that he along with P.W.1 ran to catch hold of the Appellant etc. and further deposition in cross examination about the denial of utterances in his 161(3) Cr.P.C. statements, it cannot be ignored that the statements made during police investigation are not substantive evidence and it can only be used at best for contradiction and not for corroboration. Also that, the corroboration to Court statements cannot be sought from the police statements. To put it precisely, the statement of P.W.3 recorded under Section 161 Cr.P.C. cannot be pressed into service for any purpose except to contradict the witness in the manner prescribed in the Proviso to Section 161(1) Cr.P.C.
124.At this stage, it is the evidence of P.W.14 (Investigating Officer), in his cross examination, that it was correct to state that P.W.1 and one Manickam (L.W.4) had only witnessed the incident directly and P.W.3 and P.W.4 came to the place of occurrence, only after hearing about it. In view of the clear-cut evidence of P.W.14 (Investigating Officer) that only P.W.1 and one Manickam were the eyewitnesses to the occurrence and P.W.3 and P.W.4 came to the scene of occurrence later, the contra evidence of P.W.3 that he saw the Appellant/Accused cutting P.W.11 and injuring him on his neck, chest and head etc. was unworthy of acceptance. Also that, non-examination of L.W.4 Manickam before the trial Court (mentioned in the charge sheet) was also not fatal because of the simple reason that it was the prerogative of the prosecution to examine the witness cited in the charge sheet or not to examine him as the case may be.
125.Dealing with the plea taken on behalf of the Appellant that there was no cut injury on the body of injured/P.W.11, it is to be pointed out that in Ex.P.4 Wound Certificate, P.W.7 (Doctor) had found a stab injury on the left side of chest, lacerations injury on the left forearm and left eye brow and also 8 cm transverse laceration deep to spinous process of the upper cervical vertebrae and he had certified that the injuries were to be a grievous one and added further, in his evidence, he had stated that the lacerated injuries could occur at the time of a person attack another and a person shakes his body. As such, to project an argument on the side of the Appellant that there was no cut injury on the body of P.W.11, in the considered opinion of this Court, could not in any way improve or heighten the case of the Appellant in his favour especially when P.W.7 had categorically, in Ex.P.4 Wound Certificate, rendered an opinion that the injuries were of grievous nature.
126.In regard to the 'Arrest and Recovery Theory' in respect of the Appellant could not be believed, as projected on the side of the Appellant, it is to be pointed out that P.W.2 (in his cross examination) had stated that on the next day of occurrence he went to the Police Station together with P.W.1 to lodge a complaint and that the Police had informed that only with this knife, P.W.11 was cut by the Appellant. At this stage, it is to be borne in mind that the date of recovery of the knife M.O.2 as per the case of prosecution was on 10.11.2001 at 7.30 a.m. In this connection, this Court relevantly refers to the evidence of P.W.9 wherein he had stated that the Appellant/Accused gave a confession and the admissible portion of the confession was Ex.P.5 and that in Ex.P.6 Mahazar firstly he had signed. At this juncture, on perusal of Ex.P.6, it is quite evident that M.O.2 Knife was seized on 10.11.2001 at about 7.30 a.m. in the morning based on the identification made by the Appellant/Accused and further that it was seized from the lake channel situated near Kuppan's land. Even in Ex.P.6 Mahazar, firstly P.W.9 had affixed his signature. Moreover, in Ex.P.6 Mahazar, the length of the cutting portion of the M.O.2 knife was approximately stated as 10 = feet. That apart, P.W.9, in his evidence (in cross examination), had stated that at about 12 noon or 1.00 p.m., the M.O.2 was produced. Besides this, he had also stated in his evidence that when the Appellant was identified to the Police, the time was around 11.00 a.m. in the morning. P.W.10 in his evidence, (in Ex.P.6 Mahazar witness) had stated that when they identified the Appellant to the Police, the time was around 9.00 a.m. However, P.W.14 (Investigating Officer), in his evidence, had stated that the Appellant was arrested at 6.00 a.m. On 10.11.2001 and that he took nearly 45 minutes to one hour for recording the confession of the Appellant and it was over at about 7.00 a.m. in the morning ant that at 7.30 a.m. in the morning, the M.O.2 knife was seized for which Mahazar was prepared and that M.O.2 was found in the lake channel upper surface from there it was produced by the Appellant/Accused. In view of the fact that P.W.2 had candidly stated in his cross examination that on the next day of occurrence when he went to the Police Station to lodge a complaint together with P.W.1, the Police had shown and informed that P.W.11 was attacked with that knife, viz., the recovery of M.O.2 Knife on 10.11.2001, based on the admissible portion of confession of the Appellant/Accused Ex.P.5 and its seizure as per Ex.P.6, are not believed by this Court.
127.As regards the theory of Arrest projected by the prosecution, it is to be pointed out that P.W.14, in his evidence, had deposed that the Appellant was arrested on 10.11.2001 at 6.00 a.m. far away from his village in Nanjundapuram Amirthy Road Junction and that the M.O.2 - knife was seized at 7.30 a.m. from an open lake channel where no water was flowing. However, P.W.9, in his evidence, had stated that when the Appellant was identified to the Police at that time it was 11.00 a.m. and in the place where the Appellant was arrested, the road was proceeding in the direction of east-west. Also, it is the evidence of P.W.9 that when the Appellant produced the M.O.2 Knife, it was at 12 noon or 1.00 p.m., but P.W.10, in his cross examination, had stated that when they identified the Appellant to the Police, it was around 9.00 a.m. and that the confession statement was prepared at 10.00 a.m. and after an hour, M.O.2 was seized. In view of the aforesaid clinching, unimpeachable, cogent and coherent evidence of P.W.9 and P.W.10 to the effect that the Appellant was arrested at 11.00 a.m. and M.O.2 was seized between 12 noon and 1.00 p.m. from the bush in the lake channel/canal and further that, the Appellant was shown at 9.00 a.m. and the confession statement was prepared at 10.00 a.m. and after one hour M.O.2 was seized, the evidence of P.W.14 (Investigating Officer) that the Appellant was arrested at 10.11.2001 at 6.00 a.m. was not accepted by this Court.
128.In regard to the plea taken on behalf of the Appellant that in the present case, there was no Accident Register Copy and also there was no evidence that the injured/victim was taken to Vellore Government Hospital, it is to be pointed out that P.W.1 (brother of injured/P.W.11) had stated in his evidence that when they took P.W.11 in an Auto to the Vellore Government Hospital, the doctors had advised to take P.W.11 for further treatment and accordingly, P.W.11 was taken to Vellore C.M.C. Hospital and was admitted. Also, P.W.2 in his evidence stated that P.W.11 was also taken in an Auto to the Vellore Government Hospital since the doctors refused for treatment, he was taken to C.M.C. Hospital for treatment. It cannot be denied that when P.W.11 was taken to Government Vellore Hospital he was given treatment as spoken to by P.W.1 and since the doctors advised for further treatment, P.W.11 was taken to the C.M.C. Hospital. As a matter of fact, P.W.7 (Doctor of C.M.C.) had issued Ex.P.4 Wound Certificate and mentioned about the four injuries found on the body of P.W.11 and finally opined that the injuries were of grievous nature. In this backdrop, the non-marking of Accident Register Copy as an Exhibit on the side of Prosecution and the non-examination of the Doctor/ Doctors who gave treatment at Vellore Government Hospital cannot be blown out of proportion so as to affect the case of the prosecution, because of the simple reason that P.W.1, in Ex.P.1 Complaint had categorically stated that P.W.11 was very serious condition. In any event, the non-marking of Accident Register Copy and non-examination of purported Doctor/Doctors, who gave treatment to P.W.11, were not fatal to the prosecution case.
129.Just because, persons examined in the case are close relatives or friends of injured/P.W.11, one cannot come to the conclusion straight away that the evidence are to be discarded. Per contra, the evidence of relative witnesses are to be analysed to find out whether they are cogent and credible. If their depositions are cogent, coherent, credible, there is no impediment, in law, for a Court of Law to accept the same. But the only rider would be that the relative evidence will have to be looked into with great care, caution and circumspection by the trial Court in a given case, as opined by this Court.
130.In regard to the plea taken on behalf of the Appellant that only relatives were examined and no independent witnesses were examined and as a matter of fact, in Arasampattu Village, many persons were available, it is to be pointed out that the non-examination or failure to examine the said witnesses are not suicidal to the case of the prosecution. At this juncture, it is to be remembered that the Respondent/Prosecution only needs to lead evidence sufficient to prove its case. Ordinarily, where the prosecution had led trustworthy evidence of eyewitnesses and proved all necessary facts, the non-examination or failure to examine the independent witnesses by the Investigating Officer in a particular locality would not in any manner affect the prosecution story in a given case.
131.It is to be pointed out that the term 'Related' is not equivalent to 'Interested'. A witness who is a natural one but relative of the victim cannot be termed as interested, in the considered opinion of this Court. Moreover, a close or near relationship of witnesses to the Injured/Deceased is no ground to reject their testimonies if they are found reliable. Really speaking, a close relative of an Injured/Deceased would normally be hazy to spare the real attacker/assailant and falsely implicate an innocent one, as opined by this Court. In fact, a relative would not conceal the actual attacker/assailant. In law, 'Relationship' is not a factor to affect the credibility of deposition of witnesses. Also that, persons may be interested in the victim because of their relationship, yet, they may not necessarily be 'Hostile' to the attacker/assailant.
132.As regards the pleas taken on behalf of the Appellant that M.O.2 Knife was not sent for chemical analysis and also that, the dress of the injured/victim P.W.11 was not seized by the Respondent/ Police and sent for chemical analysis, it is to be pointed out by this Court that on these aspects, no questions were put to the P.W.14 (Investigating Officer) and answers elicited in this regard. Further, in view of the fact that this Court had not accepted the factum of arrest of the Appellant/Accused and the recovery of alleged M.O.2 Knife for the reasons ascribed earlier in this Judgment, the issue of non-seizure of dress of injured P.W.11 not being seized by the Police and subsequently sent for chemical analysis and the other issue of not sending of M.O.2 knife to the chemical analysis were of no avail.
133.Dealing with the stand taken on behalf of the Appellant that there had occurred a delay in regard to the sending of Form 95 [pertaining to seizure of properties] to the Judicial Magistrate I, Vellore and in fact, the same was sent to the Court on 03.12.2001, it is to be pointed out that P.W.14 (Investigating Officer), in his evidence, had stated that because of law and order problem there was a delay in sending of these properties under Form 95 to the Court. It is to be remembered ordinarily that case properties are to be sent to the concerned Magistrate Court immediately along with other documents like F.I.R. 161 Cr.P.C. statements etc. the requirement to send these properties under Form 95 to the concerned Judicial Magistrate Court at the earliest point of time is only to see that the prosecution acts fairly, quickly and in a diligent speed so as to not give room for any complaint on the side of the Accused. At this stage, this Court relevantly points out that in the instant case, just because these seized properties were sent in Form 95 belatedly to the concerned Judicial Magistrate Court, it could not be said that it affects the case of prosecution. In any event, this Court significantly points out that although on behalf of the Respondent/Prosecution, it is represented before this Court that because of the reason of law and order problem, Form No.95 could not be sent to Court in time and per contra, it was sent belatedly, this Court does not accept the same because of the simple reason that no material/proof was produced to substantiate the same before this Court.
134.It is to be borne in mind that to justify a conviction under Section 307 I.P.C., it is not necessary that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of Accused, such intention may also be deduced from other circumstances and may even, in some cases be ascertained without any reference to actual wounds, as per the decision of the Hon'ble Supreme Court in Bipin Bihari V. State of M.P., (2006) 8 Supreme Court Cases 799.
135.For the purpose of constituting an attempt under Section 307 I.P.C., the two essential ingredients are: (i) an evil intend or knowledge (ii) an act done. Also, a Court of Law is to see whether the act irrespective of its results was done with the intention or knowledge and under circumstances narrated in Section 307 I.P.C. Furthermore, the circumstances showing strained relationship between the Accused persons and the victim, the fact that grievous injuries were the result of indiscriminate attack on the parts of body of the injured/victim with the knife etc. would lead to an inference that it was the intention of the Accused to cause death of the victim.
136.It cannot be forgotten that in the instant case, the determinative question is intention or knowledge, as the case may be and not the nature of injury.
137.To prove the offence under Section 307 I.P.C., the burden is on the prosecution to establish (i) the act (Actus Reus); (ii) the intention (Mens Rea). That apart, in a given case, where injuries are inflicted, the crucial testimony is of the injured because he had borne the impact.
138.It is to be kept in mind that the testimony of an injured witness is of great way and the presence of such witness at the time of place of occurrence cannot be doubted. However, it is to be noted that very cogent, convincing grounds would be required to discard the evidence of such witness.
139.At this stage, this Court aptly points out the decision of the Hon'ble Supreme Court in Shankar Lal V. State of Haryana, (1998) 6 Supreme Court Cases 239, wherein it was observed and held that 'The evidence of complainant was sufficient to convict an Accused for an offence under Section 307 I.P.C. in case of assault with knife and giving repeated stab-blows to him'. Further, it is not necessary that the injury actually cause to the victim of assault should be sufficient under ordinary circumstance to cause injury/death of the person assaulted. As a matter of fact, if an individual knows that a particular result would ensue for his act he must be deemed to intend such result by the act.
140.Moreover, in the decision of the Hon'ble Supreme Court in Sunil Kumar and others V. State of Madhya Pradesh, AIR 1997 Supreme Court 940, wherein it is observed and held that 'Where the testimony of injured witness was corroborated by other prosecution witnesses and also with medical evidence, conviction of Accused was proper'.
141.It is to be noted that if a trial Court's Judgment verges on the perverse, the Appellate Court has a duty to set the evaluation right and pass the appropriate orders as it deems fit and proper based on the facts and circumstances of a given case.
142.Further, at this stage, this Court worth recalls and recollects the decision Bharat Dube V. Emperor, AIR 1941 Patna 51, wherein it is observed and held that 'Where a number of blows are struck at the neck of a person not in a position to defend himself and if the attack was successful, it would be impose to take any other view than that the act amounted to murder and when death does not result from such an attack, it is clearly an attempt to murder within the meaning of Section 307'.
143.In this context, it would be fruitful to refer to the decision of the Hon'ble Supreme Court in Bakhshish Singh V. State of Punjab and another, (2013) 12 Supreme Court Cases 187 at special page 200 & 201, wherein, in paragraph 40, it is observed and laid down as follows:
40.It is also significant that Bakhshish Singh had ensured his absence from Mohali on the material day and even from India by going to Pakistan on 14.6.2003 and returned only on 22-6-2003 and in the meanwhile Satbir Singh and Rachhpal Singh stayed at various places near the scene of the crime in preparation of plan. In this regard, we find no reason to interfere with the findings of the High Court that the motive of Bakhshish Singh is established to eliminate Gurcharan Singh from the declarations that he would rape Guneet Kaur, daughter of the deceased, who was studying in the said institute and that he would gain control of the institute in which huge finances were involved. It is not possible to determine the exact cause of the motive, or the exact factor which impelled the motive. When a high degree of animosity is established the existence of the motive may be taken to be established.
144.Be that as it may, as far as the present case is concerned, on a careful consideration of the entire facts and circumstances of the case in an encircling fashion and especially in view of the evidence of P.W.1 (Author of Ex.P.1 Complaint) and more particularly, the evidence of P.W.11 (injured/victim) and also this Court, taking note of the fact that P.W.7 (Doctor), in his evidence, had spoken about the four extraordinary injuries found on P.W.11 and the fourth injury being a grievous one, their evidence were natural, consistent, cogent and convincing because of their trustworthiness and credibility, this Court accepts the same, since these witnesses have proved all necessary facts to bring home the guilt of the Appellant/Accused under Section 307 I.P.C. Furthermore, the nature of four external injuries found on P.W.11 as per Ex.P.4 speaks out the guilty mind of the Appellant/ Accused in regard to the indiscriminate attack made by him in the present case. As such, this Court holds that the charge in respect of the Appellant/Accused under Section 307 I.P.C. is proved by the prosecution beyond all reasonable doubt and resultantly, holds him guilty and upholds the Judgment of Conviction passed by the trial Court, of course based on the reasons assigned by this Court in this Appeal.
145.Coming to the aspect of what should be the appropriate sentence to be awarded to an Accused in a given case, undoubtedly, the trial Court is left with the discretion in this regard. However, the same is to be exercised by it, based on sound judicial proceedings. But, it cannot be brushed aside that in an Appeal against conviction, it is open to the High Court to alter or modify or reduce the sentence after confirming the conviction, based on the facts and circumstances of a given case which float on surface.
146.Insofar as the Quantum of Sentence, in regard to the proved charge for the offence under Section 307 I.P.C. in respect of the Appellant is concerned, this Court, on an overall view of the facts and circumstances of the present case and further, on being subjectively satisfied, to secure the ends of Justice, imposes an appropriate punishment of 8 years Rigorous Imprisonment. But the fine amount of Rs.5,000/- imposed by the trial Court is left undisturbed by this Court. At this stage, a perusal of the Judgment of the trial Court indicates that the trial Court had awarded a sum of Rs.4,000/- out of the imposition fine amount of Rs.5,000/- as compensation to the injured/victim (P.W.11 Thirunavukkarasu) after the Appeal or the Appeal time was over. In the instant case, this Court is quite convinced that even the remaining balance fine amount of Rs.1,000/- is to be awarded to the Injured/Victim (P.W.11) as compensation and awards the said sum of Rs.1,000/- to the Injured/P.W.11, in furtherance of substantial cause of Justice and accordingly, directs the Respondent/ Prosecution to file the necessary Miscellaneous Petition under the Criminal Rules of Practice for payment out of the necessary sum to which he is entitled to [including the compensation amount of Rs.4,000/-, if not already received by him] and to disburse the same to the injured/victim (P.W.11), in the manner known to law and in accordance with law, without any further loss of time.
147.In the result, the Criminal Appeal is allowed in part, in above terms. If the Appellant/Accused is not in duress, the trial Court is directed to adequate/appropriate steps to confine him in Prison so as to serve the remaining period of sentence.
15.09.2014
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Sgl
To
1.The Assistant Sessions Judge,
Vellore, Vellore District
2.The Inspector of Police ,
Vellore Taluk Police Station,
Vellore District.
3.The Public Prosecutor,
High Court, Chennai.
M.VENUGOPAL,J.
Sgl
JUDGMENT IN
Crl.A.No.126 of 2006
15.09.2014