IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 09.03.2011 C O R A M THE HONOURABLE MR.JUSTICE S. NAGAMUTHU Criminal Appeal No.821 of 2009 R.Jayachandran ... Appellant Vs State rep. by the Inspector of Police, Perambalur Police Station. ... Respondent Criminal Appeal is filed under Section 374(2) of Cr.P.C. against the judgment and order of conviction passed in S.C.No.86 of 2005 dated 30.5.2006 by the learned Chief Judicial Magistrate-cum-Assistant Sessions Judge, Perambalur For Appellant : Mr.V.Subramanian For respondent : Mr.R.Muniapparaj, Government Advocate O R D E R
The appellant is the 2nd accused in S.C.No.86 of 2005 on the file of the learned Chief Judicial Magistrate-cum-Assistant Sessions Judge, Perambalur. There were two accused. The appellant stands convicted for the offences under Sections 448 and 307 of IPC and he has been sentenced to undergo rigourous imprisonment for one year for the offence under Section 448 of IPC and to undergo rigourous imprisonment for ten years and to pay a fine of Rs.1,000/-, in default, to undergo simple imprisonment for six months for the offence under Section 307 of IPC. by the judgment dated 30.5.2006. The first accused was also similarly convicted for offences under Sections 448 and 307 read with 34 of IPC. Challenging the said conviction and sentence, the 2nd accused/appellant is before this Court with this appeal.
2. This Court is informed that as against the conviction and sentence imposed on the 1st accused, he preferred an appeal before this Court and during the pendency of the appeal, the 1st accused died and therefore, the appeal against him stands abated.
3. The case of the prosecution in brief is as follows:
P.W.2 is a resident of Chidambaram Nagar at Perambalur. He is a retired Elementary Educational Officer. P.W.1 is his son. He was residing with P.W.1 in the said place along with his wife, daughter and son-in-law. On 27.6.2002 at about 6.00 p.m., he was at his home. Around 7.00 p.m., he found these two accused proceeding to the Electricity Divisional Engineer’s Office situated in front of his house. After some time, they returned and they were found standing near the compound gate of the P.W.2’s house. P.W.2 enquired them as to what for they were standing there. The accused told him that they had come to see his son, namely, P.W.1. P.W.2 again asked them for what purpose they wanted to see him. Then the accused told him that P.W.1 was unnecessarily interfering with their affairs and therefore, they had come to challenge him. P.W.2 told them that they could come on the next day to have a talk about the same as it was too late in the night. But the accused did not stop. At that time, the appellant/2nd accused took out an Aruval from his back which was hidden into his shirt. On seeing that, P.W.2 went to his house and brought a wooden log. Suddenly, the 2nd accused attacked P.W.2 with Aruval on his left hand. The left hand was completely cut and the amputated hand fell down. The 1st accused was also present with Aruval. P.W.2 raised alarm. P.W.3 came out of the house. He also witnessed the occurrence. On seeing P.W.3, the accused fled away from the scene of occurrence. P.W.3 tried to catch them hold. But they escaped. Thereafter, P.W.2 was taken to the Government Hospital at Perambalur where he was given first aid treatment. The amputated hand was also taken to the Government Hospital at Perambalur. But the Doctor opined that there was no facility in the hospital to refix the amputated hand. Therefore, he was immediately taken to the Government General Hospital at Tiruchirapalli. There also, the Doctors informed that there was no facility to refix the amputated hand and instead, they suggested to take him immediately to Coimbatore. Since P.W.2 had no wherewithal to go over to Coimbatore, he got admitted at KMC Hospital at Trichirapalli which is a private hospital. He was in-patient for about 20 days. He had to spend about Rs.5 Lakhs for treatment. The hand was refixed by means of a surgery.
4. On 27.6.2002 at about 8.30 p.m., when P.W.16, the then Sub-Inspector of Police attached to Kunnam Police Station was on duty, the son of P.W.2, who also witnessed the occurrence, made a complaint under Ex.P.1. Based on the same, P.W.16 registered a case in Crime No.311 of 2002 under Sections 448, 341 and 307 of IPC. He took up the investigation, proceeded to the place of occurrence, prepared Observation Mahazar and Rough Sketch in the presence of two witnesses regarding the place of occurrence. He recovered the blood stained earth from the place of occurrence under Mahazar Ex.P.5 in the presence of two witnesses. He also recovered the blood stained clothe of P.W.2 which he was wearing at the time of occurrence. He arranged for taking photographs of the place of occurrence. He examined P.Ws.1 to 4 and other witnesses and recorded their statements. Then, he examined Doctor Rajasekar (P.W.11) and collected Accident Register and recorded his statement. Thereafter, the investigation was taken up by P.W.15. Both the accused had surrendered before the learned Judicial Magistrate on 17.7.2002 and on the request made to the learned Judicial Magistrate, they were handed over to the custody of police on 31.7.2002. In the Police Station, when they were examined, in the presence of two witnesses, they gave voluntary confession. Both the confession statements were recorded independently in the presence of the witnesses Village Administrative Officer Parimalam (P.W.10) and one Thangavelu, Village Assistant. Based on the said confession statements, both the accused took P.W.15 and the witnesses to the house of the 1st accused and produced the weapons, namely, the blood stained Aruval as well as the blood stained Lungi worn by the accused. Yet another Aruval used by the 1st accused was also recovered at the instance of the 1st accused. He made a request through court for chemical examination of the blood stained clothe. He collected the report and finally on completing the investigation, P.W.15 laid charge sheet against the accused for offences under Sections 448, 341 and 307 of IPC.
5. Based on the above materials, the trial court framed as many as 3 charges under Sections 448, 341 and 307 of IPC. The 1st charge is against both the accused under Section 448 of IPC for having trespassed into the house of P.W.2. The 2nd charge is against the 2nd accused under Section 307 of IPC for having attacked P.W.2 with Aruval. The third charge is against the 1st accused for offence under Section 307 read with 34 of IPC. Since both the accused denied the charges, they were put on trial. During the course of trial, on the side of the prosecution, as many as 16 witnesses were examined and 13 documents were exhibited besides 6 Material Objects were marked. When the incriminating materials were put to the accused under Section 313 of Cr.P.C., they denied the same. They pleaded innocence. They did not choose to examine any witness nor to exhibit any document.
6. Having considered the above offences, the trial court found the accused guilty for the offences under Sections as stated supra and convicted accordingly. Aggrieved over the same, the 2nd accused/appellant is before this Court with this appeal.
7. I have heard Mr.V.Subramanian, learned Counsel for the appellant and Mr.R.Muniyapparaj, learned Government Advocate (Criminal side) and also perused the records carefully.
8. The learned Counsel for the appellant would submit that since P.Ws.1 to 4 are highly interested witnesses, their evidence require very close scrutiny. He would further submit that the appellant was not known previously to P.W.1 to P.W.4. Therefore, in the absence of a previous Test Identification Parade, the identification made by these witnesses for the first time in court cannot be given any weightage. He would also submit that though it is stated that the appellant/2nd accused attacked P.W.2 with Aruval, in the further statement recorded by P.W.15 under Section 161 of Cr.P.C., P.W.2 had told that he was attacked only by the 1st accused and not by this accused. The learned Counsel would further submit that though it is a case of the prosecution that the material objects, namely, the Aruvals were recovered from the house of the 2nd accused based on the confession statement said to have been given by these two accused, according to the evidence of P.W.15, they were recovered only from the house of the 1st accused. This, according to the learned Counsel for the appellant, completely destroys the recovery of weapon said to have been made on the confession statement said to have been given by this accused. The learned Counsel would also submit that the blood stained clothe said to have been worn by the accused at the time of occurrence has not been proved to the effect that the blood stains pertain to the blood group of P.W.2. Therefore, the Lungi which was said to have been worn by one of the accused at the time of occurrence also has not been proved. The learned Counsel would further submit that because of the above material contradictions, the case of the prosecution is doubtful and therefore, the same needs to be rejected. At the fag end of his arguments, the learned Counsel would contend that assuming that the prosecution has proved the case stating that it was only this accused who has caused the cut injury on the left hand, even then, the offence said to have been committed by this accused would fall under Section 326 of IPC and not under 307 of IPC. He would also submit that the accused was a young man at the time of occurrence and he has got no bad antecedents and therefore, in the matter of sentence, some leniency may be shown. He would also submit that the appellant/accused was in jail for about a total period of 4 = years.
9. The learned Government Advocate would refute all the above contentions. According to him, of course, it is true that the witnesses are interested witnesses and there has been no independent witness to speak about the occurrence. But he would submit that the same by itself would not make the entire case of the prosecution unbelieveable. He would also submit that though it is argued by the learned Counsel for the appellant that in the further statement recorded under Section 161 of Cr.P.C. by P.W.15, it is stated by P.W.2 that he was attacked only by the 1st accused, but the same was not brought to the notice of P.W.2 when he was cross-examined. Therefore, the said contradiction, according to the learned Counsel for the appellant, has not been made use of by the defence in any manner. The learned Government Advocate would also submit that the contradiction in respect of the recovery of the material objects are immaterial and therefore, the same will not destroy the case of the prosecution in any manner. The learned Government Advocate would further submit that in respect of the identity of the accused, it is not at all the case of the accused that the accused were not known to P.W.2 and other eye-witnesses. Therefore, according to him, the failure to hold an Identification Parade in this case has not in any manner caused a dent in the case of the prosecution. Lastly, he would submit that the narration of events by means of evidence by P.Ws.2 to 4 would go to show that but for the intervention of P.W.3, the accused would have done away with P.W.2. Therefore, the offence committed by this appellant squarely falls under Section 307 of IPC. In respect of the quantum of sentence, the learned Government Advocate has got serious objection for leniency.
10. I have considered the above submissions.
11. The learned Counsel for the appellant was right in his submission that in a case where the prosecution relies on the testimony of the interested witnesses, the court has to approach the same with care and caution. But it is not the law that simply because there are only testimonies of interested witnesses, the case of the prosecution should be either doubted or rejected. As I have already stated it requires only a cautious approach. If such cautious approach is made towards the evidence of P.W.1 to P.W.4, I do not find that absolutely anything on record to disbelieve the evidence of P.Ws.2 to 4. P.W.1 had not seen the attack made on P.W.2. But, he had seen these two accused fleeing away from the scene of occurrence with weapon. But the evidence of P.W.2 to P.W.4 are cogent and convincing to go to establish that it was only this accused who cut P.W.2 with Aruval on his left hand and amputated his hand. P.W.1’s evidence lends corroboration to the same.
12. In respect of non-holding of the Test Identification Parade, though the argument is attractive, in the given sets of facts, in my considered opinion, such failure has not in any manner caused any dent in the case of the prosecution. First of all, it has not been suggested to any witness by the defence that the accused were not known to the prosecution witnesses prior to the occurrence. P.W.2 in his chief examination has stated that after the occurrence, he had seen the accused only in court during trial. It does not mean that the accused were not known to P.W.2 prior to the occurrence. Apart from that, it is not as though P.W.2 had a fraction of time to have a glimpse of the face of the accused. It is in the evidence of P.W.2 that he saw the accused going to the E.B. Office situated just in front of his house. After some time, he had occasion to see them returning and standing in front of the gate of his house for a long time. It is also in evidence that they entered into the house of P.W.2 and after entering into the house of P.W.2, the appellant tried to attack P.W.2 with Aruval. Then P.W.2 returned with wooden log and then the appellant attacked P.W.2. Thus, there was more than sufficient time for P.W.2 to have a complete look at the accused and to perceive their identity and to retain the same in his memory. Therefore, the non-holding of the Test Identification Parade in this case has not in any manner affected the case of the prosecution. Added to that, as I have already stated the fact that the accused were known to P.W.2 to P.W.4 even prior to the occurrence was not at all disputed during the cross-examination as it is evident from the cross examination done by the 2nd accused to these witnesses. Above all, P.W.1 knows the identity of the accused. He had seen the accused fleeing away from the place of occurrence with weapon. There is no reason to reject his evidence. At this juncture, it is worthwhile to refer to the judgment of the Honourable Supreme Court in Sidhartha Vashist alias Manusharma vs. State (NCT of Delhi) reported in 2010 (6) SCC 1 wherein on considering the importance of Test Identification Parade, this Court has held as follows:
” It is trite to say that the substantive evidence is the evidence of identification in court. Apart from the clear provisions of Section 9 of the Evidence Act, the position in law is well settled by a catena of decisions of this Court. The facts, which establish the identity of the accused persons, are relevant under Section 9 of the Evidence Act. As a general rule, the substantive evidence of a witness is the statement made in court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the stage of investigation, and there is no provision in the Code of Criminal Procedure which obliges the investigating agency to hold, or confers a right upon the accused to claim a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code of Criminal Procedure. Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter for the courts of fact. In appropriate cases, it may accept the evidence of identification even without insisting on corroboration.”
In the instant case, the non-holding of Identification Parade has not in any manner affected the identification made by the witnesses in court.
13. Now coming to the alleged contradiction between the statement of P.W.2 recorded by P.W.15 and his present evidence, I find absolutely no force. The learned Counsel for the appellant would take me through the evidence of P.W.15 in which he has stated that P.W.2 was examined under Section 161 of Cr.P.C. at the 2nd time and at that time, he told him that he was attacked only by the 1st accused and not by the 2nd accused. Based on this evidence of P.W.15, the learned Counsel for the appellant would submit that there is a contradiction between the evidence of P.W.2 and the 161 Cr.P.C. statement and therefore, the evidence of P.W.2 in this regard needs to be rejected. In my considered opinion, this argument cannot be accepted at all. Basically, if there had been any contradiction in the former statement of any witness recorded under Section 161 of Cr.P.C., or any other statement, as required under Section 145 of the Indian Evidence Act, the maker of the said statement should be cross-examined with respect to the said contradiction found in the former statement. This can be done either by brining the contradictory statement to the notice of the witness or without brining the same to his notice. Once it is sought to be contradicted under Section 145 of the Indian Evidence Act, the contradictory portion has to be brought to the notice of the maker of the said statement to seek his explanation. The purpose of contradicting the witness is to afford an opportunity to him to explain to the court in respect of the said contradiction. In the absence of such contradiction being brought to the notice of the maker of the statement, it cannot be held that the contradiction will bind the maker of the said statement. Only if the legal requirement adumbrated under Section 145 of the Evidence Act has been complied with by the defence, then, that too, after proving the contradictory former statement through the person who recorded the same, the accused can make use of the same. Once a former statement is used for contradicting a witness and the said contradictory portion in the former statement is proved through the maker, then under Section 155 of the Evidence Act, the evidence of the said witness may be impeached. But in this case, these legal requirements have not been complied with by the accused while cross examining P.W.2. A very careful analysis of the evidence of P.W.2 by this accused would go to show that there has been no whisper at all about the contradiction regarding the involvement of this accused in the occurrence. Therefore, simply by asking a vague question to P.W.15 in respect of the former statement, the defence cannot try to make use of the former statement as substantive evidence. If this former statement, as it has been spoken to by P.W.15 is taken for consideration, then it will amount to treating the said former statement as a substantive evidence. It is not permissible in law in view of the bar contained in Section 162 of the Indian Evidence Act. Therefore, in my considered opinion, the so called contradiction, which was pointed out by the learned Counsel for the appellant will not go in any manner to hold the accused not guilty as the same cannot be considered at all for any purpose.
14. The next contention of the learned Counsel for the appellant is that in respect of the place of recovery of the material objects, namely, Aruvals, it is stated in the Recovery Mahazar that these weapons were recovered from the house of the 2nd accused whereas according to the evidence of P.W.15, they were recovered from the house of the 1st accused. Of course, this is a material contradiction which creates doubt in respect of the recovery of the material objects. Here again, according to P.W.15, both the accused gave independent confession statements in which they had stated about the concealment of the Material Objects. It was on the confession of the 1st accused, the material objects have been recovered. But it is seen from the evidence of P.W.15 that the recovery was made out of joint confession made by both the accused and the recovery of the material objects was also made jointly and the same were produced jointly by both the accused. This is highly not only artificial but also does not satisfy the legal requirements of Section 27 of the Evidence Act. Apart from that, the learned Government Advocate is not in a position to explain the material contradiction in respect of the place from where the material objects were recovered. Because of these improbabilities and contradictions as rightly pointed out by the learned Counsel for the appellant, the recovery of the material objects at the instance of the accused cannot be believed and therefore, to that extent, the case of the prosecution is liable to be rejected. But that will not in any manner go to create any doubt in the evidences of P.W.1 to P.W.4.
15. Now coming to the next argument of the learned Counsel for the appellant that the Lungi said to have been recovered from the accused did not contain the blood stains having the blood group of P.W.2, I find no point. A perusal of the records would go to show that the test in respect of the blood grouping was inconclusive. It does not mean that the blood which was found on the clothe worn by the accused was not that of P.W.2. Therefore, this argument is also liable to be rejected.
16. The learned Counsel for the appellant is not in a position to raise any other ground to discard the evidence of P.W.1 to P.W.4. A close consideration of these evidences and proper evaluation of the same would go to clinchingly prove that it was this accused who cut P.W.2 on his left hand and severed the same.
17. Now coming to the contention of the learned Counsel for the appellant that the intention on the part of the accused to cause the murder of P.W.2 has not been proved and therefore, the offence under Section 307 of IPC would not be attracted, I am of the view that the same also is liable to be rejected. Of course, it is true that an injury on the hand, even amputation may not result in death. But the intention of the accused is to be gathered from the surrounding circumstances. It is not as though, the accused, namely, the appellant stopped cutting P.W.2 on his own so as to infer that he never intended to kill him. But here, in this case, the fact remains that further attack was prevented because of the intervention of P.W.3, the son-in-law of P.W.2. It is only on seeing him, the accused started running from the place of occurrence. But for the intervention of PW.3, the appellant would have done away with P.W.2. Therefore, the intention of this accused while causing injury on P.W.2 is only to do away with him. Added to all, one has to look into the weapon used in this case. The weapon is so dangerous. Thus, the act of the accused falls within the first limb of Section 300 of IPC., and thus the offence squarely falls under Section 307 of IPC.
18. Now coming to the quantum of sentence, the learned Counsel for the appellant would submit that at the time of occurrence, the 2nd accused/appellant was hardly 22 years old. He has got a big family to look after and that he has got no bad antecedents. He would further submit that he was in jail for about 4 = years already. He would also submit that if he is sent to prison again, it will completely destroy the family circumstances. Having regard to all these facts, the learned Counsel for the appellant would pray for leniency.
19. Though the learned Government Advocate opposes the said contention of the learned Counsel for the appellant, I find some justification in the plea of the accused. In my considered opinion, it would be in the interest of justice to reduce the sentence of imprisonment to six years instead of ten years as imposed by the trial court. To that extent, the quantum of sentence alone requires interference at the hands of this Court.
20. In the result, the appeal is partly allowed in the following terms :
1. The conviction of the appellant under Sections 448 and 307 of IPC is confirmed;
2. The sentence of one year rigourous imprisonment for the offence under Section 448 of IPC. is confirmed;
3. The sentence of imprisonment imposed on the appellant for the offence under Section 307 is reduced to six years of rigourous imprisonment instead of ten years rigourous imprisonment; and
4. The fine and default sentence are confirmed.
21. Except the above modification, in all other aspects, the appeal stands dismissed.
tsi
To
The Chief Judicial Magistrate-cum-Assistant Sessions Judge,
Perambalur