JUDGMENT
M. Karpagavinayagam, J.
1. Mohan Kumar alias Mohan Kumar Pandian was convicted for the offence under Sections 302 and 506(ii) I.P.C. Challenging the same, this appeal has been filed.
2. The case of the prosecution in brief is as follows:
(a)The deceased Ramakrishnan alias Kutti Asari originally hailed from Kilupakkam village. Then, he settled at Rukmaniammalpuram. He worked as a Coolie labourer under one Sethupathi Pandian – uncle of Mohan Kumar Pandian – the accused, for some time. Since the salary was not paid periodically to him, the deceased Ramakrishnan stopped from attending his work six months prior to the date of occurrence. Some days prior to the date of occurrence, the accused went to the house of the deceased and threatened him that if the deceased did not attend the work, he would cause harms to his life. P.W.1, Madasamy, the brother of the deceased and P.W.2, Muthukutti, the son of the deceased intervened and pacified the accused stating that in future the deceased would attend the work. However, the deceased had not chosen to go for work. Due to this, the accused had a grudge against the deceased.
b) On the date of occurrence, i.e., on 16.9.1996 at 2.30. p.m., the deceased Ramakrishnan, his brother, P.W.1, Madasamy and his son, P.W.2, Muthukutti came to the tea shop of one Nataraja Pandian to take tea. When they were taking tea, the accused came to the tea shop and he questioned the deceased as to why he did not turn up for work despite his warning. The deceased did not reply. The accused immediately took out M.O.1, knife from his waist and gave a stab on the chest of the deceased. On receipt of the injury the deceased fell down and died. On seeing this, P.W.1, the brother of the deceased shouted at the accused and in turn, the accused threatened P.W.1 with dire consequences. Thereafter, the accused ran away with the knife from the scene of occurrence.
(c) Then on noticing the deceased died, P.Ws. 1 and 2 rushed to Uthumalai Police Station. P.W.1 gave Ex.P.1, complaint attested by P.W.2 to P.W.7, Sub-Inspector of Police. P.W.7, Sub-Inspector of Police registered a case under Section 302 I.P.C. and prepared Ex.P.6, first information report.
(d) On receipt of the message, P.W.9, Inspector of Police proceeded to the scene of occurrence at 6.00 p.m. He prepared Ex.P.2, observation Mahazar and Ex.P.14, rough sketch. He also conducted inquest between 7.30.p.m. and 10.00 p.m. and examined P.Ws.1, 2 and Nataraja Pandian, tea shop owner and others. Inquest report is Ex.P.15. He sent the dead body for post mortem. In the meantime, he recovered blood stained cement mortar and ordinary cement mortar.
(e) On 17.9.96 at 10.30. a.m., P.W.6, Doctor attached to Tenkasi Government Hospital conducted autopsy on the dead body and found two injuries on the chest. He issued Ex.P.8, post mortem certificate giving opinion that the deceased would appear to have died of shock and haemorrhage due to the injury No. 1 found on the chest.
(f) Though the Inspector of Police took steps to arrest the accused, he was not able to trace out him. Then, he came to know that the accused surrendered before the Court on 19.9.96. On the application filed by P.W.9, police custody of the accused was obtained.
(g) During interrogation the accused gave Ex.P.4, confession statement, in pursuance of which M.O.1, blood stained knife was recovered from a bush near Issakkiammal koil. Ex.P.5, seizure Mahazar was attested by P.W.3-Village Administrative Officer. Then, P.W.9 arranged for sending M.O.1, knife for chemical examination and continued to examine the other witnesses.
(h) After completion on investigation, P.W.9 filed a charge sheet against the accused for the offences under Sections 341, 302 and 506(ii) I.P.C.
3. During the course of trial the prosecution examined P.Ws.1 to 9, marked Exs.1 to 15 and produced M.Os.1 to 7.
4. The defence of the accused is one of total denial when he was questioned under Section 313 Cr.P.C.
5. On a perusal of the evidence available on record, the Trial Court found the accused guilty for the offences under Sections 506(ii) and 302 I.P.C. and convicted him thereunder. This is the subject matter of challenge before this Court in the appeal.
6. Mr. G.R. Edmund, learned counsel for the appellant, while assailing the judgment impugned would take us through the entire evidence and vehemently contend that the infirmities found available in the evidence on record would go to the root of the matter and as such the accused has to be given the benefit of doubt.
7. The gist of the arguments advanced by the learned counsel for the appellant is as follows:
“(i) Admittedly, P.Ws.1 and 2 are the close relatives of the deceased. There is a misunderstanding between the accused and the deceased family earlier. Therefore, in the absence of any independent corroboration, P.Ws.1 and 2 cannot be believed especially when they failed to inform the incident immediately either to the villagers or to the other relatives of the deceased.
(ii) As a matter of fact, the occurrence took place inside the tea shop and in the presence of the tea shop owner, Nataraja Pandian. Though his name has been mentioned as one of the witnesses in the complaint itself, the prosecution has failed to examine the independent witnesses before the Court. Further, no reason whatsoever was given for the non-examination of the material witness.
(iii) Though it is the case of the prosecution that the tea was taken by the deceased just few minutes prior to the incident, the doctor did not say that the tea was found inside the stomach.
(iv) Though M.O.1, knife is said to have been recovered from the accused on 30.9.96, the doctor in his cross-examination has stated that the M.O.1, knife was shown on the date of the post mortem i.e. either on 16.9.96 or on 17.9.96. Therefore, the evidence relating to the recovery of knife is highly doubtful.
(v) P.W.6, Doctor found two injuries, namely, one injury is stab injury and the other injury is cut injury. On the other hand, according to P.Ws.1 and 2, only one weapon, namely, knife was used and the deceased was stabbed only once. Therefore, the medical testimony does not support the ocular testimony.
(vi) Though, photographs were taken as per the evidence of P.W.2, no photographs or negatives have been marked.”
8. In reply to the above submissions, we have heard the learned Additional Public Prosecutor. He would submit that the evidence available on record is sufficient to hold that the accused is guilty for the offence under Sections 506(ii) and 302 I.P.C., and as such the conviction is legal.
9. We have carefully analysed the inherent merits of the contentions urged on either side. We have also gone through the records.
10. According to prosecution, the deceased was working as a Coolie labourer under one Sethupathi Pandian, uncle of the accused, for some time. Since the arrears of salary was not paid to the deceased, the deceased stopped attending work. Aggrieved over this, the accused went to the house of the deceased one week prior to the date of incident and threatened him that unless he comes and attends to the work, he would be killed. P.Ws. 1 and 2 intervened and pacified the accused to go away, giving an undertaking that the deceased would hereafter attend the work without fail. After one week, P.Ws. 1, 2 and the deceased came to the tea shop at about 2.30.p.m. While they were taking tea, the accused came and asked the deceased as to why he did not attend the work in spite of his warning given earlier. When there was no response from the deceased, the accused took out a knife kept in his waist and stabbed on the chest of the deceased. When P.W.1 shouted at the accused, the accused threatened P.W.1 stating that if he comes near him, he would also be attacked with the knife. In the meantime, the village people gathered. On noticing the deceased died on the spot, P.Ws.1 and 2 rushed to the Uthumalai police station which is situated at a distance of 6 kms and gave a Ex.P.1, complaint to P.W.7, Sub-Inspector of Police. The complaint was registered at 4.30 p.m. and the first information report reached the Magistrate at 12.45 mid-night on 16/17.9.96.
11. It is stated that P.Ws. 1 and 2 are close relatives of the deceased. P.W.1 is the brother of the deceased and P.W.2 is the son of the deceased. So it has been contended that their evidence has to be rejected because they are relative witnesses.
12. It is settled law as laid down by this Court, as well as the Supreme Court that the mere ground that P.Ws.1 and 2 are relative witnesses it will not be enough to reject their evidence. But, their evidence has to be scrutinised with care and caution.
13. In the light of the said principle, if we look at the evidence of P.Ws.1 and 2, there is no reason to hold that P.Ws. 1 and 2 are unreliable witnesses. As a matter of fact, P.Ws. 1 and 2 belong to Achari community and the accused belongs to Thevar community.
14. It is vehemently contended that the normal conduct of the persons, who have witnessed the incident, would be to inform the same to the nearest relatives. But this is not the case here, because P.Ws. 1 and 2 themselves are very close relatives. When they found the deceased already dead, they thought it fit to rush to the police station immediately for giving a complaint to the police station. According to P.Ws. 1 and 2, they covered a distance of 6 kms by walking and gave complaint to P.W.7, Sub Inspector of Police. As such there is no delay in lodging the complaint. In the complaint, the details of the occurrence have been clearly mentioned. It is also noticed that the same was attested by P.W.2.
15. It is true that Nataraja Pandian, the tea shop owner is an independent material witness. His name is also mentioned in the complaint as one of the eye-witnesses. It is the bounden duty of the prosecution to examine him in Court, especially, when he was mentioned as one of the eye witnesses in the complaint as well as charge sheet. There is no explanation given by the prosecution for dispensing with the examination of said witness.
16. Mr. G.R. Edmund, learned counsel for the appellant also would cite an authority reported in 2001 (SCC) Cri 439 (STATE OF RAJASTHAN V. TEJA SINGH AND OTHERS) in order to show that non-examination of the material witnesses would affect the prosecution case.
17. There cannot be any quarrel over this proposition, because it is a well established rule. But, we have to consider as to whether mere non-examination of one of the witnesses, who may be independent, would be a reason to reject the other eye-witnesses, who have to be held as reliable witnesses. As indicated above, we are unable to say that they are untrustworthy witnesses. As a matter of fact, in Ex.P.1, complaint and in the evidence of P.Ws. 1 and 2, there is a clear narration about the occurrence. Both in Ex. P.1 and in the evidence of P.Ws.1 and 2, it has been specifically stated that only prior to the date of occurrence, the accused came and threatened the deceased that unless he comes to the house of his uncle for continuing his work, he would be killed. Admittedly, despite the warning, the deceased did not chose to go for attending the work. When the accused, after a week found the deceased in a tea shop taking tea, he threatened the deceased and asked him as to why he did not attend work despite his earlier threatening. As the deceased did not respond to his words, without waiting for a minute, he took out the knife from his waist and stabbed on the chest of the deceased. This aspect of evidence which has been given by both P.Ws.1 and 2 is cogent.
18. It is contended that the evidence of P.Ws.1 and 2 has not been corroborated by the medical testimony given by P.W.6, Doctor. This submission also, in our view, may not deserve acceptance. According to P.W.6, these injuries could have been caused by M.O.1. Though it is stated that there are two injuries, one is a stab injury and the other is a cut injury, a close scrutiny of Ex. P.8, post mortem certificate and the evidence of P.W.6, Doctor would clearly show that there is no much difference between the first injury and second injury. On the other hand, it is noticed that both the injuries are found in the same side of the chest. It is true that an answer has been elicited from the evidence of P.W.6, Doctor that the first injury would have been caused by knife and the other injury could have been caused by aruval. But, it is to be stated that it all would depend upon the way in which one handles the weapon. Hence, this cannot be made use of to reject the ocular testimony, which, in our view, is so natural and reliable.
19. It is true that P.W.6, Doctor would admit that he had seen the knife, M O 1, either on the date of post mortem i.e. on 16.9.96 or the next day i.e. on 17.9.96. From this answer, the learned counsel for the appellant wants us to infer that the knife was recovered even prior to the date of arrest and as such the recovery of the knife on 30.9.96 from the accused is doubtful. This submission also does not merit consideration as the same must be purely a mistake. It is the specific evidence of P.W.3, Village Administrative Officer and P.W.9, Inspector of Police that the police custody was obtained on 30.9.96 and on the basis of Ex.P.4, confession statement of the accused, M.O.1, knife was recovered only the next date. It was taken from bush near Isakkiammal koil. As a matter of fact, there is consistence in the evidence adduced by both the witnesses. Further, no suggestion was put to P.W.9, the Inspector of Police that M.O.1 was shown to the doctor on 16.9.96 or on 17.9.96. In these circumstances, we have no reason to reject the evidence of P.W.3 and P.W.9 relating to the recovery of M.O.1, knife on the basis of the confession statement given by the accused.
20. Similarly, failure to mark photographs and failure to find tea in the stomach, would not be of any use in support of the defence to conclude that the evidence of P.Ws. 1 and 2 has to be rejected.
21. On the basis of the entire materials available on record, we have no hesitation to hold that the evidence adduced by P.Ws.1 and 2 which is in consonance with Ex. P.1, complaint, corroborated by the medical evidence by P.W.6, Doctor, appears to have ring of truth throughout.
22. In view of the above circumstances, we have to hold that the prosecution has established its case beyond reasonable doubt and the materials available on record would be sufficient to hold that the accused alone had committed the offence by causing the death of the deceased.
23. Therefore, the appeal is liable to be dismissed as devoid of merits and accordingly the same is dismissed confirming the conviction and sentence imposed on the appellant/accused.