Madras High Court
Ravi vs The State Represented By on 19 January, 2007
Author: G.Rajasuria
Bench: D.Murugesan, G.Rajasuria
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 19/01/2007 CORAM: THE HONOURABLE MR.JUSTICE D.MURUGESAN AND THE HONOURABLE MR.JUSTICE G.RAJASURIA Criminal Appeal No.1167 of 2003 Ravi ... Appellant/Accused Vs The State represented by The Inspector of Police, Coodangulam Police Station, Tirunelveli District. (Crime No.104 of 1999) ... Respondent/Complainant Prayer Appeal filed under Section 374 of the Code of Criminal Procedure, against the judgment of the learned Sessions Judge, Tirunelveli in S.C.No.181 of 2001 dated 10.07.2003 convicting the appellant under Section 302 I.P.C and sentencing him to undergo life imprisonment and to pay a fine of Rs.1,000/- in default to undergo rigorous imprisonment for six months. !For Appellant : Mr.Hammed Ismail for Mr.R.Anand ^For Respondent : Mr.V.Kasinathan Additional Public Prosecutor :JUDGMENT
G.RAJASURIA, J This appeal is directed as against the judgment of the learned Sessions Judge, Tirunelveli in S.C.No.181 of 2001 dated 10.07.2003 whereby the appellant/accused was convicted under Section 302 I.P..C and sentenced to undergo life imprisonment and to pay a fine of Rs.1,000/- in default to undergo rigorous imprisonment for six months.
2. Broadly but briefly, narratively but succinctly, the case of the prosecution as stood exposited from the records could be portrayed thus:
(i) The deceased Jebaraj was running a tea shop at Coodankulam bye-pass road. The accused was in the habit of taking food there on credit and in that connection, there were dues to a tune of Rs.30/- payable by the accused to the deceased Jebaraj. It so happened that on 20.04.1999 at 09.00 a.m., the accused went to the tea shop of the deceased and demanded tea, for which the deceased Jebaraj proved himself an obstacle to his demand by pointing out pungently that there were already dues to the tune of Rs.30/- from the accused to the deceased and that he would not give tea, whereupon there was wordy altercation which injured the feelings of the accused in view of he having been defamed and degraded in the eye of the public at the spot. Harbouring ill-feeling and rancour in his heart, the accused decided to physically liquidate the deceased by murdering him. By way of carrying out such nefarious and diabolic purpose, on the same day i.e, on 20.04.1999 at about 04.45 p.m, while the deceased Jebaraj was proceeding along with his sister's husband, Jeyakumar followed by Jeyarani, the sister of the deceased Jebaraj, from east to west along the said bye-pass road near the tea shop of one Ponperumal, the son of Ayyakutti Nadar before which the offence took place, the accused who came in the opposite direction, wrongfully restrained the deceased and dealt various knife blows and caused injuries to the deceased, so to say the accused caused stab injuries on the left hip and the left belly and throat of the deceased and thereby caused fatal injuries to him. When Jeyakumar attempted to intervene, he ran away from the scene of occurrence.
(ii) The matter was informed to Coodankulam Panchayat leader, Ezhilarasu who came to the spot in an Ambassador car bearing the name 'Abi' and in that car, the injured was accompanied by P.W.1 Jeyakumar, P.W.3 Chelladurai and P.W.6 Ezhilarasu to Kottar Government Hospital. At that time, the deceased Jebaraj was not able to orally interact with others. At 07.35 hours on the same day, the deceased succumbed to his injuries in the hospital. The intimation of the death of the deceased Jebaraj was given by the Doctor to Kottar Police Station, from where the message was sent to the jurisdictional police station namely Coodankulam Police Station where the Head Constable who received the message, rushed to the Hospital and recorded the statement of Jeyakumar, attested by Chelladurai and thereupon, the Head Constable registered the case in Cr.No.104 of 1999 under Sections 341 and 302 I.P.C and took up investigation in the matter. The Investigating Officer proceeded to the spot and prepared observation mahazar and sketch in addition to collecting the blood stained earth and sample earth from the spot on the same day. On 21.04.1999, the Investigating Officer conducted the inquest on the dead body in the presence of the Panchayatars and also collected the blood stained clothes under cover of mahazar, before sending the dead body for post-mortem. Apart from examining the witnesses, he arrested the accused on 21.04.1999 at about 05.00 p.m., and in pursuance of the voluntary confession made by the accused, he recovered the blood stained knife from the garden of Pentecost Church from a hidden place at the instance of the accused. He also caused the material objects to be sent to Forensic Department for expert opinion. After collecting the post-mortem report and completing the investigation, he laid the police report before the Magistrate concerned who committed the case to the Court of Sessions which framed the charge as against the accused under Section 302 I.P.C.
3. During trial, P.W.1 to P.W.21 were examined and Ex.P.1 to P.23 were marked along with M.O.1 to M.O.6. On the side of defence, no oral evidence was let in and Ex.D.1, the copy of the F.I.R in Cr.No.44 of 2003 was marked.
4. The plea of the accused would be that the deceased sustained injury in a riot which took place at Chettithope which is away from the alleged place of occurrence and that the case was twisted by the Investigating Officer and foisted as against him.
5. The trial Court found him guilty and convicted him and passed sentence as above.
6. Being aggrieved by the said judgment of the trial Court, the appellant filed this appeal on the following grounds inter alia as under:
(i) The trial Court wrongly convicted the accused based on the interested testimony of the witnesses. P.W.1 to P.W.4 are the close relatives of the deceased. But, the trial Court oblivious of such fact, decided the matter as against the accused.
(ii) The self-contradictory versions given by P.W.1, was not taken note of by the trial Court.
(iii) P.W.19 to P.W.21, the independent witnesses were treated by the prosecution as hostile witnesses and on seeing that the trial Court should have acquitted the accused.
(iv) P.W.5, Jaiganesh, who took the injuried to the hospital in the car was treated as hostile witness by the prosecution.
(v) The weapon of offence was not referred to in Ex.P.3. P.W.7 admitted that he wrote Ex.P.4 as per the information given by P.W.6 and despite that the trial Court overlooked such discrepancies and convicted the accused.
(vi) The prosecution has failed to prove the motive for the crime. The probable defence version was rejected without any basis by the trial Court. At the instance of P.W.6, the accused was implicated in this case.
(vii) Accordingly, he prayed for setting aside the judgment of the trial Court.
7. Points for consideration are:
(i) Whether the prosecution proved the motive for the crime?
(ii) Whether the trial Court's finding that the deceased Jebaraj was murdered by the accused was not based on any reliable evidence?
(iii) Whether there is any infirmity in the judgment of the trial Court?
Point No:(i)
8. The nitty-gritty of the prosecution case, is that the murder incident occurred in view of the fact that on the date of occurrence i.e., on 20.04.1999 at about 09.00 a.m., there was an altercation between the deceased Jebaraj and the accused touching upon the dues of Rs.30/- payable by the accused to the deceased relating to the food items consumed by him in the tea shop of the deceased.
9. The learned Counsel for the appellant would argue that P.W.1 indulged in embellishment by narrating in his deposition as though he himself witnessed the motive part of the occurrence on 20.04.1999 at 09.00 a.m., quite antithetical to what he had put forth in Ex.P.1, the complaint. No doubt, in Ex.P.1, the complaint, two words of P.W.1 would project as though the motive part of the crime came to be known to him.
10. The learned Counsel for the appellant would develop his argument by posing the question as to what amount of credence could be attached to or reliance could be placed on the evidence of P.W.1 who flagrantly and grossly without having any regard for truth went to the extent of putting forth one version in Ex.P.1 and another while deposing before the Court.
11. At first blush, it might appear that such an argument is attractive. But, a deep scrutiny would speak otherwise. During cross-examination when he was confronted with the question as to whether he stated before the police that he actually saw the motive part of the crime, he pleaded that he could not remember whether he told about his direct personal knowledge concerning the motive part of the crime to the police or not. As such it could be seen that he claims to be the person who was the witness for the motive part of the crime around 09.00 a.m., on the date of the occurrence. In Ex.P.1, in line Nos.13 and 14, two words are found written " nfl;oUf;fpwhh;... brd;wpUf;fpwhh;....". It is nowhere found stated that P.W.1 was informed about the motive part of the incident by someone else. As such by placing reliance on those two words alone, the defence would argue that the motive part of the crime was claimed to have known to P.W.1 as a hearsay information to him.
12. The fact remains that P.W.14, Chellaiah, the Head Constable of Coodankulam Police Station has recorded the statement of P.W.1 at the hospital. While cross-examining P.W.14, the Head Constable, the real purport of those two words were not put to him. Similarly, while cross-examining P.W.17, the Investigating Officer, Shanmugasamy, who recorded the 161 statement of P.W.1, this was not put to him. At this juncture, we would like to refer to the decision of the Honourable Apex Court in Tahsildar Singh v. State of U.P reported in AIR 1959 SC 1012 and as per the dictum laid down by the Honourable Apex Court, the witnesses should be confronted with his prior statement either the First Information Report or the 161 statement and bringing out the contradiction and that contradiction should be put to the Investigating Officer so as to enable him to explain and thereafter alone, the Court could take it as contradiction. But, in this case, the defence side has not resorted to such a well laid down procedure in bringing out the contradiction. Be that as it may, in this case, the motive part of the crime is well established by proving the utterance of accused himself.
13. P.W.1 and P.W.2 in unison would depose that while the accused staging the attack on the deceased, the motive for the crime was also shouted out by him. P.W.1 in his deposition would state thus:
"vd; ikj;Jdiu M$h; vjph tHp kwpj;jhh;. mg;nghJ vjphp ifapy; xU fj;jp itj;jpUe;jhh;. fhiyapy; Ml;fs; ,Uf;fpwg;g vd;dplk; O ghf;fp nfl;L rj;jk; nghl;lhna njtpoah kfnd ,j;njhL rht[ vd;W brhy;yp fj;jpahy; vd; ikj;Jdhpd; ,lJ tpyhtpYk;> ,lJ tapw;wpYk;> bjhz;ilf;FHpapYk; Fj;jpdhd;....."[underlined by us] P.W.2's version in her deposition would run thus:
"nkw;nf ,Ue;J M$h; vjphp ntfkhf te;jhd;. mg;nghJ vjphp ifapy; fj;jp ,Ue;jJ. M$h; vjphp tyJ ifapy; itj;jpUe;j fj;jpahy; vd; jk;gpia ghh;j;J fil ghf;fp nfl;L mrpq;fg;gLj;jp tpl;lha; ,njhL bjhiye;J ngh vd brhy;ypago ,lJ tpyhtpy; xU Fj;J Fj;jpdhd;. gpwF ,lJ tapw;wpy; Fj;jpdhd;. K:d;whtjhf vd; jk;gpapd; bjhz;ilFHpapy; M$h; vjphp Fj;jpdhd;....." [emphasis supplied]
14. It is therefore clear that the accused himself at the time of attacking the deceased, shouted expressing his animosity and thereby expatiating his motive to commit the crime. In Ex.P.1 also P.W.1 referred to the said fact that even at the time of the accused stabbing the deceased, he shouted as follows:
"eP fhiyapy; cdf;F ncwhl;lypy; rhg;gpl;l U:.30 jUtjw;F vd;id cd; filf;F Kd;g[ nuhl;oy; itj;J mtkhdkhf ngrpdha; vd;W Twp fj;jpahy; Tjpkfnd ,njhL rht[ vd;W brhy;yp fj;jpahy; b$guh$pd; ,lJ tpyhgf;fk;> ,lJ tapW gf;fk;> bjhz;ilFHp gf;fk; Fj;jpdhd;. ehd; nkw;go b$guhi$ Fj;jhnj vd;W gpof;f nghndd;. mjw;Fs; utp tlf;F nehf;fp fj;jpa[ld; xotpl;lhd;...." [emphasis added]
15. It is therefore clear that the motive part of the crime has been clearly established by the prosecution through the evidence of P.W.1 and P.W.2.
16. At this juncture, it is worthwhile to consider the grievance of the appellant that the trial Court relied on the interested testimony of the witnesses for recording conviction We would like to refer to the following decisions of the Honourable Apex Court in State of Punjab v. Karnail Singh reported in (2003) 11 Supreme Court Cases 271. An excerpt from it, would run thus:
"8. We may also observe that the ground that the witnesses being close relatives and consequently, being partisan witnesses, should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dalip Singh v. State of Punjab in which surprise was expressed over the impression which prevailed in the minds of the Members of the Bar that relatives were not independent witnesses. Speaking through Vivian Bose, J., it was observed: (AIR p.366, para 25) "25. We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in - 'Rameshwar v. State of Rajasthan' (AIR at p.59). We find, however, that it unfortunately still persists, if not in the judgments of the courts, at any rate in the arguments of counsel."
17. The dictum of the Honourable Apex Court in Kartik Malhar v. State of Bihar reported in (1996) 1 Supreme Court Caes 614, would run thus:
"18. We may also observe that the ground that the witnesses being close relatives and consequently, being partisan witnesses, should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dalip Singh v. State of Punjab in which surprise was expressed over the impression which prevailed in the minds of the Members of the Bar that relatives were not independent witnesses. Speaking through Vivian Bose, J., it was observed: (AIR p.366, para 25) "25. We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in - 'Rameshwar v. State of Rajasthan' (AIR at p.59). We find, however, that it unfortunately still persists, if not in the judgments of the courts, at any rate in the arguments of counsel."
In this case, this Court further observed as under:
"A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth."
18. It is therefore clear that the Court need not look askance at the evidence of the relatives. But, it should be analysed carefully like any other evidence of witnesses.
19. Hence, in this view of the matter, it is clear that the prosecution proved the motive part of the crime. Accordingly, the point No.(i) is decided as against the appellant/accused.
Point No:(ii)
20. The prosecution in order properly and effectively to drive home the guilt of the accused relied on the evidence of P.W.1 and P.W.2 who deposed about the fact of the accused having stabbed the deceased on the Coodankulam bye-pass road at 05.00 p.m. During cross-examination of P.W.1 and P.W.2, nothing significant has been elucidated out so as to disbelieve their testimony. What are all the accused could put forth before the trial Court was that the deceased was fatally attacked during a riot which took place at the area called Chettithope or Chettithottam, which is somewhat away from the alleged place of occurrence i.e, Coodankulam bye-pass road. P.W.1, who is the husband of P.W.2 and brother-in-law of the deceased Jebaraj, during cross-examination would state that the said Chettithope is at a distance of 100 feet. P.W.1's house itself is only 100 feet towards south from the place of occurrence namely, Coodankulam bye-pass road.
21. P.W.6 Ezhilarasu, President of Coodankulam Panchayat, during cross- examination would state that the distance between the said Chettithope and the place of occurrence, was 200 metres. Inasmuch as the said Chettithope was not the place of occurrence and in no way connected with the prosecution case, in Ex.P.22 sketch, there is no reference to it.
22. Indubitably and incontrovertibly, the place of occurrence i.e, Coodankulam bye-pass road and the said Chettithope all fall within the limits of Coodankulam Police Station. However, there is no clarity about the defence.
23. At this juncture, we are fully aware of the trait proposition of law that the accused need not take any specific plea but in the mean time, once any plea is taken, it could be commented upon by the Court. The defence theory should be capable of being at least scrutinized, but surprisingly no head or tail can be made out such a defence theory that in the riot which occurred at Chettithope, the deceased sustained fatal injuries. The defence also had prevaricative stand while cross-examining P.W.1 it was suggested to him as though the deceased sustained fatal injuries at Chettithope, but he was lifted from there and put at Coodankulam bye-pass road. It is also the theory of the accused that the deceased himself at Kottar Government Hospital gave information to the police as though near the deceased house, there was a riot and in that he sustained injuries. The actual suggestion put to P.W.1 during cross-examination could be extracted hereunder for ready reference:
"nfhl;lhW murhq;f M];gj;jphpapy; nfhl;lhW nghyPrhhplk; ,we;jth; mtuJ tPl;L mUnf Vw;gl;l fytuj;jpy; fhak;gl;lhh; vd;W Kjypy; xU g[fhh; thf;FK:yk; brhd;djhft[k; mJ tHf;fpw;F tpnuhjkhf ,Ue;jjhy; kiwf;fg;gl;lJ vd;gij kWf;fpnwd;...."
24. P.W.13, Selvaraj, the Head Constable of Kottar Police Station during cross-examination categorically without mincing words and in unmistakable terms would depose that he did not record any statement of the deceased Jebaraj at Kottar Government Hospital. In fact, he narrated in his deposition that while he was the Head Constable of Kottar Police Station at the relevant point of time, he received the intimation about Jebaraj having been admitted in the Kottar Government Hospital and that intimation was informed to the jurisdictional police station namely, Coodankulam Police Station and from there, P.W.14 the Head Constable, Chellaiah went to Kottar Police Station and collected the intimation Ex.P.3. The evidence of P.W.13 and P.W.14 synchronise with each other and their versions do hang together and bear out testimony to the truth of the prosecution case.
25. The defence theory as though the deceased himself gave a dying declaration to P.W.13 is nothing but a bare faced lie dished out for the purpose of enabling the accused for wriggling out of his criminal liability. Had really P.W.13 gone to Kottar Government Hospital and recorded the statement, tantamounting to dying declaration, then the history recorded including the case sheet Ex.P.6, would have evidenced the same. But, it is not so.
26. The learned Counsel for the appellant would draw our attention to one endorsement in Ex.P.6 to the effect that 'patient conscious'. In this connection, it is just and necessary to refer to the depositions of P.W.7 and P.W.8, the Doctors.
27. P.W.7, Thilakar, the then Doctor at Kottar Government Hospital, would portray to the effect that on 20.04.1999 at about 05.45 p.m., one person by name Jebaraj aged about 30 years was brought by one Ezhilarasu in an unconscious state.
28. Hence, in such circumstances, the defence theory that at the hospital, the deceased Jebaraj gave his dying declaration to the Head Constable is turned out to be a well nigh impossibility. The question remains,m what about, such recording in Ex.P.6 as though patient was conscious? Relating to such endorsement, P.W.7 was not cross-examined admittedly. P.W.1 and P.W.6 also would state that he was not conscious at the time of they having taken him to Kottar Government Hospital. During cross-examination, P.W.7 would clearly and categorically expound that he did not inform the Magistrate for recording the dying declaration for the reason that the injured was not conscious. As such this piece of evidence of Doctor would clearly torpedo the defence theory as though the deceased gave his dying declaration to P.W.13, the Head Constable.
29. Through P.W.7, Ex.P.4 the accident register, was marked and it contains the history recorded by him to the effect that the injured was attacked by a known person with knife at about 04.45 p.m., on 20.04.1999 at Coodankulam bye-pass road. As such it is crystal clear that the history recorded by the Doctor depicts and proves that at the earliest point of time itself, the place of occurrence was informed to him. The defence theory that the occurrence took place at Chettithope is turned out to be false. The Honourable Apex Court posited the proposition that such history recorded by the Doctor is admissible in evidence. In this connection, the decision of the Honourable Supreme Court in Rehmat v. State of Haryana reported in 1997 CRI.L.J 764 which would mandate that it is the duty of the Doctor to name the assailant if furnished to him by the injured or the person accompanying the injured while recording the history. An excerpt from it, would run thus:
"10. There is also another aspect which goes in favour of the appellant. Admittedly Padam Singh (PW 4) along with Vijay Singh had first gone to the Primary Health Centre for medical help but he did not disclose the name of the assailant to the Doctor. Ordinarily, in a medico legal case, the doctor is supposed to write down the history of the injured but admittedly in this case, medical papers of Padam Singh (PW 4) do not indicate the name of the assailant."
30. In fact, we are of the opinion that the Doctor could have very well recorded the very name of the assailant which was furnished to him. We are fully aware of the fact that Medical Code and the Instructions to Doctors might be to the contrary so as to enable the Doctors to record as 'known persons' or 'unknown persons' relating to the names of assailants furnished to them as part of history. Medical Code or the Instructions cannot replace the provisions of the Code of Criminal Procedure, the Indian Evidence Act and Indian Penal Code. Nowhere under the law, it is contemplated that the Doctors are at liberty to convert the specific names of the individuals informed to them as 'known persons'. In the case of 'unknown persons', there is no difficulty. Simply because, there might be fabrication of evidence by some ill-informed persons by furnishing false names to the Doctors or that the Doctor would be ushered into the arena of conflict relating to the name of the accused, etc, the law cannot be allowed to deviate its normal and regular course.
31. The Indian Evidence Act and the Indian Penal Code contemplate that only truth to be recorded and a cumulative reading of the entire provisions of the Indian Evidence Act would show that no one much less the Doctors could convert any version so as to suit their convenience and record differently from the one not informed to them. If such sort of fears and apprehensions are allowed to dominate, in the criminal justice administration, it would amount to making a crack in the dyke and similarly, there might develop very many breaches under the same apprehensions. Suffice to say, the Medical Code and Instructions to Doctors are not laws which would prevail over the provisions of Indian Evidence Act, the Indian Penal Code and the Code of Criminal Procedure and more specifically the Honourable Apex Court's verdict cited supra.
32. It is also clear that the Doctor also observed in Ex.P.4 the following injuries:
"1. An incised wound over left axilla 8 cm X 3 cm X to muscle depth. Edges clean cut. Oblique, fresh bleeding present.
2. An incised wound over the neck 4 cm X 1 cm depth not probed. Oblique. Edges clean cut. Fresh bleeding present.
3. An stab injury in left lower abdomen 5 cm X 3 cm depth not probed. Intestines protruding through the wound. Edges clean cut. Oblique. Fresh bleeding present."
33. Those injuries are found by the Doctor on the body of the deceased Jebaraj do tally with the oral narration given by P.W.2 and P.W.3 before the Court. As such the medical evidence do tally with the oral evidence of the ocular witnesses.
34. P.W.8 also would depose about the fact of the deceased Jebaraj, while he was alive after sustaining fatal injuries, having been brought to Kottar Government Hospital in a serious condition. He would also speak about the fact of the signature having been obtained from P.W.1 Jeyakumar as found in Ex.P.6, which would reveal that Jeyakumar had taken note of the dangerous condition of the deceased Jebaraj.
35. However, the learned Counsel for the appellant would try to project and put forth, convey and portray as though such endorsement was made by the Head Constable subsequently and the signature of P.W.1 was obtained. Absolutely, there is no basis for such suggestion. It so happened that Ex.P.6 was brought before the Court in the course of trial when P.W.8 was under
examination. The endorsement made by the learned trial Judge would expound and expatiate, explain and clarify, the position that he acceding to the request of the learned Public Prosecutor ordered the medical case sheet to be produced, thereupon P.W.8 produced the medical case sheet Ex.P.6 and it was marked through him. What has been done, has been done properly by the Court. There is no rhyme or reason in the suggestion that the medical department including the Doctors went to the extent of colluding with the police as against the accused in fabricating false evidence. The Doctor P.W.8 himself would depose that it was he who got such endorsement. There was no necessity for P.W.8 to dance to the tune of the police. Hence, it is therefore made clear that P.W.1 was very much at the scene of crime and he with the assistance of others took the deceased to Kottar Government Hospital
36. P.W.9, the post-mortem Doctor with reference to Ex.P.8 the post-mortem report would detail and delineate the fact of he having conducted the post- mortem and noting the injuries both internal and external on the dead body. The Doctor was of the opinion that the deceased might have died due to shock and haemorrhage as sequelae of the multiple injuries sustained by him. The following are the injuries noted by the Doctor on the dead body of Jebaraj as in Ex.P.8:
"The body was first seen by the undersigned at 12.40 p.m, on 21.04.1999. Its condition then was cold and Rigor morits present on all 4 limbs. Post Mortem commenced at 12.40 p.m., on 21.04.1999. Appearances found at the post-mortem A well nourished 30 yrs old male body lies on back with the following External Injuries: 1) An incised wound size 4 cm X 1.5 cm X 1 cm oblique in direction on the right side of lower end of neck.
2)Another incised wound present in the left axilla 8 cm X 3 cm X depth upto the rib.
3)A incised injuries over the left lumbar region of abdomen 5 cm X 3 cm enter into the peritoneum. Through which portion of small intestine protruded out.
Internal Examination: Thorax: Heart weight 180 gms, pale Chambers empty. Right lung 450 gms, Left lung 400 gms Pale, Hyoid bone intact. Abdomen: Stomach empty. Liver weight 1500 gms, Pale Spleen weight 90 gms. Pale. Each kidney 135 gms pale. 1.5 liters of blood collected inside the peritoneal cavity 2.5 cm X 1.5 cm size mesentery found damaged by cut injury and mesenteric vessels found cut 2 cm X 1.5 cm size incised wound seen in the left large intestine through which portion (NC).
On opening of skull: No fracture seen in the skull. (NC) No liquid action. Brain, Spinal Column normal.
The general appearance do tally with Police report. Death occur on 20.04.1999 at 7.35 p.m, as per the Hospital records. Death would have occurred 16 - 18 hrs prior to PM. No viscera preserved. Post mortem concluded by 1.40 p.m., on 21.04.1999.
Opinion as to cause of death. The deceased would appear to have died of shock and haemorrhage due to multiple injuries."
37. It is therefore clear that the ocular and medical evidence go hand in hand to drive home the guilt of the accused. Over and above that, Ex.P.9 also would buttress and fortify the prosecution case.
38. P.W.10, Doctor Christropher, would narrate the facts that on 22.04.1999 at about 10.00 am., while he was in Kottar Government Hospital, the accused was brought to him by H.C.456 and the Doctor recorded the history as got ascertained by him from the accused that on 20.04.1999 at about 04.45 p.m., he sustained injuries by falling down. The Doctor observed the following injuries on accused as found in Ex.P.9:
"1) Abrasion 1 cm X 1 cm over medial aspect of left clavicle.
2) Contusion 6 X 4 over back of right palm.
I am of opinion that simple."
39. The Doctor was of the opinion that the accused sustained simple injuries. The time and date of the accused having sustained the injuries, do tally with the time and date of the murder incident.
40. The learned Additional Public Prosecutor would convincingly clarify that the deceased while running away from the scene of occurrence, might have fallen down and sustained the following injuries as in Ex.P.9:
"1) Abrasion 1 cm X 1 cm over medial aspect of left clavicle.
2) Contusion 6 X 4 over back of right palm.
I am of opinion that simple."
41. The learned Counsel for the appellant with reference to the evidence of P.W.5, Jaiganesh, would submit to the effect that even though he was treated as hostile witness, his evidence would be relied on in support of defence theory. The decision in Balu Sonba Shinde v. State of Maharashtra reported in AIR 2002 SUPREME COURT 3137 would highlight the proposition that the evidence of a hostile witness need not be thrown away in toto. However, either of the parties could take advantage of the concerned portions of his evidence. But, the Court should be extremely cautious while accepting such portions of evidence.
42. P.W.5 is not an eye-witness to the occurrence. But, he was only the person who drove the car by which the deceased was taken to Kottar Government Hospital as narrated above. The appellant would try to rely on P.W.5's evidence that he stopped the car at the place called Chettithope and lifted the injured into the car. But, such reliance is totally antithetical and suicidal to the defence theory, because the defence theory was to the effect that even though the injured sustained injury during a riot at Chettithope, he was taken and thrown at Coodankulam bye-pass road. As such the prevaricating stands of the accused taken by the defence exposes its falsity.
43. The learned Counsel for the appellant would focus his argument that even though the witnesses admitted that in the process of lifting the injured and taking him to the hospital, and their clothes got blood stained, such clothes were not recovered by the police. Such non-recovery of blood stained clothes from the witnesses would not in all cases be fatal to the prosecution case. If at all there is any doubt about the presence of such ocular witnesses, then such absence of recovery of the blood stained clothes might gain prominence.
44. The learned Counsel for the appellant relied on the decision in Secretary @ Mara Naicker @ 7 others v. State by Sub Inspector of Police reported in 2005-2-L.W.(Crl.) 779 which is to the effect that when there is any doubt about the recording of F.I.R, the benefit should be given in favour of the accused.
45. The learned Counsel for the appellant by placing reliance on the evidence of P.W.5, the hostile witness which is to the effect that while he was carrying in the car towards hospital, the car was stopped in front of Coodankulam Police Station and came back, would advance his argument that such P.W.6's version should have been taken as the real F.I.R. But, P.W.6 Ezhilarasu himself denied the said fact. The entire perusal of the evidence of P.W.5 would show as to how he deliberately twisted the facts and deposed before the Court. He is a driver by profession, and resident of Coodankulam Amman Kovil street; and he knows various places in Coodankulam. However, he would try to interpolate certain version so as to support the defence theory. But, he met with his waterloo. During cross-examination, he simply stated as follows:
"ehd; iggh]; nuhl;oy; fhiu epWj;jpa ,lk; brl;onjhg;g[ vd;W brhy;thh;fs;."
46. Our above discussion would show that Chettithope is away from Coodankulam bye-pass road. P.W.5 admitted that he stopped the car at Coodankulam bye-pass road and that the injured was taken from that place. During chief examination, the same P.W.5 would state as follows:
"ehDk; vHpyuRk; vd; fhhpy; Tlq;Fsk; iggh]; nuhLf;F nghndhk;. nghFk; tHpapy; xU ,lj;jpy; Tl;lkhf ,Ue;jJ. mq;nf vHpyuR fhiu epWj;JkhW brhd;dhh;. epWj;jpndd;. ghh;j;j nghJ xU Ms; uj;j fhaq;fSld; fPnH fple;jhh;."
47. As such his evidence during chief examination would show as though even before going to Coodankulam bye-pass road, he stopped the car in a different place and there he found the deceased whereas during cross- examination, he would interpolate artificially and abnormally, that he stopped the car at Coodankulam bye-pass road and that place was Chettithope. There need not be any more elaboration to depict and delineate as to how P.W.5 had the malafide intention to project a false story before the Court wilfully and deliberately and such sort of conduct has to be deprecated in unmistakable terms.
48. Inasmuch as placing reliance on such evidence of P.W.6, the appellant exposed himself that P.W.5 was won over by that witness.
49. Suffice to say that the defence theory fails to carry conviction with this Court.
50. Relating to registration of F.I.R by the Head Constable P.W.14, his evidence that on receipt of information from P.W.13 and going to Kottar Police Station and collecting Ex.P.3 and thereafter going to Kottar Government Hospital and recording the statement of P.W.1 and subsequently, returning to Coodankulam Police Station and registering the F.I.R in Cr.No.104 of 1999 under Sections 341 and 302 I.P.C as against the accused as found in Ex.P.19, is found to be true and correct. As such there is no question of inferring or deducing, understanding or presuming from the available evidence that there was an F.I.R earlier to Ex.P.1.
51. The learned Counsel for the appellant would canvass the defence theory that eyewitnesses whom the trial Court had chosen to examine as P.W.19, P.W.20 and P.W.21, turned turtle and that in such an eventuality, the trial Court ought to have rejected the prosecution case. The main thrust of the defence argument is that the trial Judge after posting the matter for judgment, had chosen to summon those eyewitnesses who were not earlier examined on the prosecution side, since he felt that the available evidence was not sufficient to drive home the guilt of the accused and that once, the trial Judge felt such a defect in the prosecution case and had chosen to go for recording additional evidence and on finding that there was no such evidence, he ought to have acquitted the accused.
52. The entire gamut and parameter of such argument is based on mere surmises, conjectures and assumptions on the appellant's side. Simply because the trial Judge wanted to summon P.W.19, P.W.20 and P.W.21, who were not examined by the learned Public Prosecutor at the time of adducing evidence, there is no presumption that the trial Judge had come to the conclusion that previously there had been no sufficient evidence on record at all. In fact, the trial Judge's action deserves appreciation in summoning P.W.19, P.W.20 and P.W.21 and examining them before the Court. Had he failed to examine those witnesses, certainly that would have become the subject matter of comment in view of the well settled legal proposition that eyewitnesses listed should be examined before the trial Judge as otherwise adverse inference should be drawn.
53. Here, the eyewitnesses cited in the list were examined, but they turned hostile. In such a case, it would not cause any harm to the evidence already furnished by the prosecution. It is common knowledge that whenever any occurrence takes place, including day light murders in public places, witnesses hesitate and reluctant to come forward themselves as witnesses. Even with great difficulty, if they are traced and cited as witnesses, before the Court they turn hostile. In such circumstances, if the criminal Courts are going to take a stringent view that absence of independent witnesses should be taken as fatal to the prosecution case, it would amount to throwing the baby along with bathe water.
54. Ex.D.1 is the certified copy of the F.I.R bearing Cr.No.44 of 2003 registered by Coodankulam Police on 06.03.2003 as against four persons including P.W.6 Ezhilarasu under Sections 147, 324 and 506(ii) I.P.C. The defence side relied on such F.I.R. P.W.6 was an accused in that case and nothing has been highlighted about Ex.D.1's relevance to the case at hand which took place on 20.04.1999.
55. During arguments also, nothing has been elucidated as in what way, Ex.D.1 would be sufficient to torpedo the prosecution case or the evidence of P.W.6.
56. P.W.11, the Head Clerk of the Magistrate's Court concerned would speak about the fact of the material objects having been sent to Forensic Department for obtaining expert opinion. Ex.P.12, is the Forensic Experts' report furnished by Forensic Department and it would reveal the following facts:
"Item 1. Sandy earth mixed with vegetable matter and pieces of white shells.
Item 2. Sandy earth mixed with vegetable matter and pieces of white shells.
Item 3. A torn silken lungi with blue, black and purple designs on which were profuse dark brown stains.
Item 4. A torn yellow silken shirt with light brown, dark brown and black designs on which were profuse dark brown stains. Item 5. A dhoti with orange and black border stripes on both the sides and black border stripes on either ends on which were dark brown stains. Item 6. A clasp-knife with horn/stainless steel/blue synthetic fancy handle and measuring about 24 cm., in length on which were dark brown stains. Detected blood on each of items 3, 4, 5 and 6 but not on either item 1 or
2."
57. Ex.P.13 Serologist's report would reveal thus:
Item No. Description of articles Origin Group Remarks
3. (M.O.1) Lungi Human A ....
4. (M.O.2) Shirt Human A ....
5. (M.O.6) Dhoti Human A ....
6. (M.O.3) Clasp-knife Human A .....
58. As such in lungi M.O.1, shirt M.O.2, dhoti M.O.6 and knife M.O.3 which was recovered by the Investigating Officer in pursuance of the admissible portion of the confession given by the accused, stains of human blood which is of 'A' positive group, were traced and identified by experts. As such this piece of evidence also supports the prosecution theory. There is one discrepancy which could be noted that even though police claimed to have recovered the blood stained earth and sample earth, as per mahazar Ex.P.16, the serologist expert could not trace out any blood stains in M.O.4.
59. The learned Additional Public Prosecutor would state that owing to lapse of time between recovery and the analysis by the experts, such discrepancy might have crept in.
60. Be that as it may, the absence of blood stain in M.O.4, cannot be taken as fatal to the case of the prosecution in the wake of overwhelming evidence and clinching circumstances proved in support of the prosecution case.
61. Ex.P.2, the recovery mahazar relating to M.O.1 and M.O.2 and Ex.P.15 observation mahazar are formal piece of evidence in this case. Accordingly, the point No.(ii) is decided as against the appellant.
Point No:(iii)
62. In view of the ratiocination adhered to for deciding the aforesaid points, we find that there is no infirmity in the judgment of the trial Court and accordingly, the point No.(iii) is also decided.
63. In the result, we could see no merit in this appeal and accordingly, the same is dismissed confirming the conviction and sentence passed by the learned Sessions Judge, Tirunelveli in S.C.No.181 of 2001 dated 10.07.2003. The Sessions Judge concerned shall take necessary steps to issue non-bailable warrant and secure presence of the appellant and commit him to jail to undergo the sentence, if not at large.
To
1. The Inspector of Police, Coodangulam Police Station, Tirunelveli District.
2. The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.