IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 10.07.2008 CORAM : THE HONOURABLE MR.JUSTICE P.D.DINAKARAN and THE HONOURABLE MR.JUSTICE K.N.BASHA Crl.A.No.741 of 2005 Raja alias Pannadaian alias Madheswaran ... Appellant vs. The State of Tamil Nadu, rep. by Inspector of Police, Karimangalam Police Station, Dharmapuri District.(Cr.No.50/2003). ... Respondent Appeal against the judgment of the learned Additional Sessions Judge, Dharmapuri dated 10.8.2005 made in S.C.No.10 of 2004. For Appellant : Mr.S.Samuel Rajapandian For Respondent : Mr.N.R.Elango Additional Public Prosecutor J U D G M E N T
(Delivered by P.D.DINAKARAN,J.)
This appeal is at the behest of the sole accused in Sessions Case No.10 of 2004 on the file of Additional Sessions Judge, Dharmapuri, challenging the legality and correctness of judgment of conviction and sentence of imprisonment for life imposed upon him for the offence under Section 302 I.P.C., with respect to an occurrence that took place on 19.01.2003 at about 10.00 p.m., at Gajjal Naickenpatti within the jurisdiction of Karimangalam police station limits.
2. The appellant was put up for trial to answer the charge that on 19.1.2003 at about 10.00 p.m., due to prior enmity with regard to the deceased Mani cutting the tapioca plants grown at the lands of the accused, the accused beat the deceased Mani with a stick on his head and leg, as a result of which, the deceased Mani fell down and thereafter, with a sickle, inflicted cut injuries on various parts of his body and the deceased Mani succumbed to the injuries at the hospital on the next day, i.e. on 20.1.2003 at about 2.15 a.m. and thereby, committed the offence under Section 302 I.P.C.
3. When initially questioned, the accused denied his involvement in the crime and hence, the case was committed to Court of Sessions, where the accused was again questioned as to the charge and he pleaded not guilty. Hence, the case was taken up for trial. To substantiate the charge, the prosecution examined 16 witnesses, marked 22 documents and produced 9 material objects.
4. Shorn of unnecessary details, the prosecution version, as unfolded from the evidence, both oral and documentary, is stated thus:-
(a) P.Ws.1 and 4 are the elder brother and younger brother of the deceased Mani respectively. P.W.5 is the wife of the deceased. P.W.2 is also related to the deceased. P.W.7 is the junior paternal uncle of the accused. The deceased and P.Ws.1 to 5 were residents of Kuppangarai Nalukattai village and the accused and P.W.7 were residing at Kajjal Naickenpatti village.
(b) The deceased was having two cows and was also having some cultivated lands. He used to cut the tapioca plants raised in the lands of the accused, which is adjacent to his lands, for the purpose of feeding his cows. The said act of the deceased was objected by the accused and he also threatened the deceased with dire consequences. This is said to be the motive for the occurrence.
(c) On the date of occurrence, at about 10.00 p.m., the deceased was cutting the tapioca plants and at that time, the accused came there and questioned him and the deceased retorted, which ended in a quarrel. The accused getting annoyed over the deceased, took a wooden log lying there and beat the deceased on his head and leg, due to which the deceased fell down. Thereafter, the accused took the sickle, which the deceased brought to cut the twigs and inflicted indiscriminate cut injuries on various parts of the body of the deceased and then, he took a nylon rope brought by the deceased to bundle the twigs and tied the hands and legs of the deceased. On receipt of injuries, the deceased raised alarm, which brought P.Ws.1 and 2, who were going by that side.
(d) While P.Ws.1 and 2 were nearing the scene of occurrence, they saw the accused coming in front of them and when they questioned as to what happened, the accused did not respond and went away. P.W.2 found the clothes of the accused blood-stained. Thereafter, they proceeded to the place where the murmuring sound was emanating and on reaching the spot, they found the deceased being tied with a nylon rope and lying with bleeding injuries all over his body. When they asked as to what transpired, the deceased told them that because he cut the tapioca plants, the accused assaulted and inflicted cuts and that after tying him with the rope, he went away. P.W.1, thereafter, directed P.W.2 to bring some vehicle and accordingly, P.W.2 went and brought TVS-M80 that belonged to P.W.3, in which the deceased was placed and after reaching Periyampatti, they took the auto of P.W.8 and reached the Government Hospital at Dharmapuri at about 1.00 a.m. on 20.1.03.
(e) P.W.7, junior paternal uncle of the accused, on hearing the barking of dogs at about 10.00 p.m., came out of his house and when he opened the door, he saw the accused standing along with his father and others and when he questioned them as to what happened, the accused confessed to him that on seeing the deceased cutting the tapioca plants, he questioned and beat him and the deceased also beat him and that he tied the deceased with a rope. They asked P.W.7 to go to the scene of occurrence and thus, he went and saw the injured Mani being taken to the hospital by P.Ws.1, 2 and others.
(f) P.W.15, the medical officer, who was on duty at that time, examined the injured and he noticed the following injuries:-
1.Punctured wound right cheek 1.5 cm. x 1 cm. x bone deep.
2. Swelling left cheek 10 cm. x 10
3. Punctured wound left arm 1 cm. x 1 cm. x bone deep.
4. Contusion left leg 4 x 4 cm.
5. Contusion right leg 4 x 4 cm.
6. Cut injury left forehead 3 cm. x 4 cm. x bone deep.
7. Cut injury over left mandible 2 cm. x 4 cm. x skin deep.
8. Bleeding left nose.
9. Left black eye.
10.Cut injury left eyebrow 1 cm. x 4 cm. x skin deep.
The doctor admitted the injured in the hospital and instructed to take X-rays on left elbow, right leg, left leg and skull. In spite of the treatment given by the doctor, the injured Mani died at about 2.15 a.m. The death intimation, Ex.P.8, was sent to the police by the doctor, P.W.10. The doctor, P.W.15, issued Ex.P.20, the accident register copy.
(g) After the death of the deceased Mani, P.Ws.1 to 3 proceeded to the village and informed P.W.5, wife of the deceased and other relatives. Thereafter, P.W.1 proceeded to Karimangalam police station taking the complaint, Ex.P.1, scribed by P.W.2 and handed over the same to P.W.16, Inspector of Police, who, on the basis of Ex.P.1, registered a case in Crime No.50 of 2003 against the accused for the offence under Section 302 I.P.C.
(h) P.W.16 took up investigation in the case after sending the printed F.I.R., Ex.P.18 to Court as well as to higher officials. He proceeded to the spot along with the photographer, P.W.9 and on observing the spot, prepared observation mahazar, Ex.P.2 and rough sketch, Ex.P.21. He recovered material objects from the scene of crime, viz., M.O.1 – rope and M.Os.2 and 3 – bloodstained earth and sample earth, under Ex.P.3 mahazar and sent the same to Court under Form 95. Inquest was conducted over the body of the deceased Mani, during which witnesses were examined and their statements were recorded. Ex.P.22 is the inquest report. The body was thereafter sent for post-mortem.
(i) P.W.11, Civil Assistant Surgeon attached to Government Head Quarters Hospital, Dharmapuri, conducted autopsy on the body of deceased Mani and he found the following external and internal injuries:-
1. A sutured wound over the centre of vertex about 7 cm. length, on opening 2 cm. breadth and bone deep.
2. Skin colour contusion left parietal region 5×5 cm.
3. An stab wound about left side of neck 1x1x3 cm.
4. Sutured wound left eyebrow 4 cm. length on opening the wound 2 x 1 cm.
5. Sutured wound left cheek 2 cm. length, on opening the wound, wound enters into oral cavity.
6. A sutured wound near left angle of the mouth about 2 cm. length, on opening 2 x 1 cm.
7. Sutured wound left elbow 2 cm. length on opening 2×1 cm.
8. Sutured wound left arm 2 cm. length on opening 2 x 2 cm.
9. A sutured wound just above the right elbow 4 cm. length, on opening 2 x 1 cm.
10.Sutured wound about 2 cm. length right leg, on opening 2 x 2 cm.
11. Sutured wound left leg 2 cm. length 2 x 2 cm.
12. Sutured wound below the injury No.11, 2 cm. length on opening 2 x 2 cm.
13. Abrasion right side chest 5 x 3 cm.
14. Abrasion left shoulder 2 x 2 cm.
15. Fracture lower end of left humerus.
Internal Examination:
Hyoid bone intact. All the ribs intact. Left lung pale and shrunken. Right lung collapsed. Heart – Pale and shrunken. Blood clots present over the right side of chest. Stomach contains partially digested rice particle about 300 ml. Liver, Spleen, Kidney – Pale and shrunken. Bladder – empty. External genitalia normal. Skull : Fracture left parietal frontal bone present about 100 ml of extradural clot present on the left hemispher. Meninges intact. Brain – Pale and shrunken about 50 ml of sub dural clot present on the left parietal lobe. Base of skull – Fracture of the middle cranial fossa present. Limbs : Right leg fracture distal end of tibia left elbow fracture lower end of humerus.
The doctor issued Ex.P.10, post-mortem certificate opining that the deceased would appear to have died of shock and haemorrhage due to the injuries sustained about 10 to 14 hours prior to autopsy.
(j) P.W.16, continuing with his investigation, searched for the accused and arrested him at about 9.00 a.m. on 22.1.2003 near Kalappanahalli bus stop in the presence of P.W.6, Village Administrative Officer and another and recorded the confession statement given by the accused voluntarily, which is marked as Ex.P.4. Pursuant to the said statement, the accused produced M.O.4 – sickle, M.O.5 – wooden log, M.O.6 – a pair of chappal, one of which was found to be blood-stained and M.O.7 – lungi worn by the accused at the time of commission of offence, which were seized under a mahazar, Ex.P.5. All the material objects were sent to Court with a request to forward them for chemical examination and P.W.12, the Court clerk, on sending the same to laboratory, obtained Exs.P.14 and 15, chemical analyst’s report and Exs.P.16 and P.17, serologist’s report and forwarded the reports to the investigating officer. P.W.16, examined official witnesses and recorded their statements and after completing other legal formalities, concluded his investigation and laid the charge sheet against the accused.
(k) On completion of the evidence on the side of prosecution, the accused was questioned under Section 313 Cr.P.C. as to the incriminating circumstances appearing against him and he denied them as false. But, he did not examine any witness nor marked any document on his side.
(l) The trial Court, on appraisal of evidence, both oral and documentary, and upon hearing the submissions of both sides, found the appellant/accused guilty of the charge of murder and accordingly, convicted and sentenced him as referred to earlier. Hence, the appeal.
5.1. Mr.Samuel Rajapandian, learned counsel appearing for the appellant strenuously contends that as the prosecution case solely rests on circumstantial evidence, the circumstances brought forth by the prosecution are not sufficient to bring home the guilt of the accused and there are missing links in the chain. He further submits that in view of the multiple injuries noticed by the doctor on the person of the deceased, the possibility that the deceased would have been attacked by several persons and not by a single person cannot be ruled out and hence, the accused is entitled to the benefit of doubt and accordingly, he is to be acquitted.
5.2. The learned counsel alternatively argues for some modification in the conviction and sentence, since as per the evidence, there was a wordy altercation, in which, the accused has caused injuries to the deceased, which resulted in his death.
6.1. Per contra, Mr.N.R.Elango, learned Additional Public Prosecutor, submits that the circumstances brought forth by the prosecution through the evidence of P.Ws.1 to 3 and 7 clinchingly point out that it was the appellant/accused who caused injuries to the deceased, as a result of which, the deceased died and there is no missing link in the chain.
6.2. The learned Additional Public Prosecutor further submits that as per the medical evidence, it is evident that the doctor found as many as fifteen injuries on the person of the deceased and the doctor also found fracture of left parietal frontal bone in the skull and also on the right leg and left elbow at the lower end of humerus. Hence, the act of the accused reflects the cruelty of his mind and the grudge he was harboring against the deceased and hence, no modification in conviction and sentence could be possible and the impugned judgment is well-founded.
7. Heard and considered the submissions of both sides and also perused the entire evidence on record.
8. The question that arises for consideration is whether the prosecution has succeeded in establishing the case against the accused beyond all reasonable doubts with the available circumstances without any missing link.
9. Before proceeding further, let us find out whether the deceased Mani met his death due to homicide. The doctor, P.W.15, who initially treated the injured, found punctured wounds on the person of the deceased and he issued Ex.P.20, accident register copy in respect of the same. Further, P.W.10, the doctor who conducted post-mortem, found as many as 15 injuries and also found fracture in the skull and in the right leg and left elbow and he issued Ex.P.10, post-mortem certificate, opining that the deceased died due to the shock and haemorrhage on account of the injuries sustained. In view of the above testimony of the medical officers, we have no hesitation to hold that the deceased died due to homicidal violence, which fact is also not disputed by the defence.
10.1. In the case on hand, there is no eye witness to the occurrence and hence, the prosecution relied upon circumstantial evidence. It is settled law that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person.
10.2. In Padala Veera Reddy v. State of A.P. [AIR 1990 SC 709], it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests: (SCC pp. 710-11, para 10):
“(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and
(4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.”
11.1. Keeping the above principles in mind, let us find out whether the circumstances brought forth by the prosecution are only consistent with the guilt of the accused and inconsistent with his innocence.
11.2. The links and circumstances that constitute a chain are:
(i) prior enmity between the deceased and the accused with regard to the deceased cutting the twigs of tapioca plants grown in the lands of the accused;
(ii) occurrence said to have taken place in the land of the accused;
(iii) P.Ws.1 and 2 hearing the murmuring sound of the deceased emanating from the land of the accused;
(iv) P.Ws.1 and 2 seeing the accused in an agitated mood near the scene of occurrence;
(v) the non-response of the accused when questioned by P.Ws.1 and 2 about the murmuring sound;
(vi) P.W.2 noticing blood-stains on the clothes of the accused;
(vii) the extra judicial confession of the accused to P.W.7, his junior paternal uncle, immediately after the occurrence;
(viii)the medical evidence, as per which the deceased was alleged to have died due to multiple injuries sustained;
(ix) the recovery of M.O.4 the sickle that belonged to the deceased, at the instance of the accused; and
(x) the recovery of M.Os.6 and 7, belongings of the accused at his instance;
12. The first circumstance is the prior enmity between the accused and the deceased. It is the evidence of P.W.1 that it was the usual practice of the deceased to cut the twigs of tapioca plants grown in the land of the accused for the purpose of feeding his cows. With regard to such conduct of the deceased, the accused scolded him not to cut the plants and if he cuts, he would be stabbed and murdered. P.W.2 also corroborates with the evidence of P.W.1 on the same lines. Further, both P.Ws.1 and 2 have stated that the deceased told them that because he cut the plants, the accused attacked him and inflicted cut injuries. That apart, it is the evidence of P.W.7, who is the junior paternal uncle of the accused, that the accused came and confessed to him that since the deceased cut the tapioca plants that belonged to him, he beat him and that the deceased also beat him. From the above evidence of P.Ws.1, 2 and 7, it is clear that the accused was having a grudge against the deceased for cutting the tapioca plants grown in his land. Thus, the first circumstance, viz., motive has been proved by the prosecution.
13.1. The second circumstance is the evidence of P.Ws.1 and 2 with regard to the oral dying declaration given by the deceased and to their seeing the accused at the place of occurrence. An oral dying declaration no doubt can form the basis of conviction, though the Courts seek for corroboration as a rule of prudence. But before the said declaration can be acted upon, the court must be satisfied about the truthfulness of the same and that the said declaration was made by the deceased while he was in a fit condition to make the statement. The dying declaration has to be taken as a whole and the witness who deposes about such oral declaration to him must pas the scrutiny of reliability. We are, therefore, called upon to examine the evidence of P.Ws.1 and 2 to find out whether their testimonies as to the oral dying declarations can be believed.
13.2. It is the categorical evidence of P.Ws.1 and 2 that on the date of occurrence, P.W.1, after leaving his grand children at his daughter’s house, proceeded further and when he went behind the house of P.W.2 to answer the calls of nature, he heard the murmuring sound emanating from the adjacent land, which belonged to the accused and suspecting that it is the voice of the deceased Mani, P.W.1 asked P.W.2 to bring a torch light and with the help of torch light, they proceeded further to the land of the accused. At that time, the accused came in front of them in an agitated mood and when they questioned as to what transpired, the accused did not reply anything and he went away. It is the evidence of P.W.2 that he saw blood-stains in the clothes of the accused at that time. Thereafter, they went towards the direction of the murmuring sound and found the deceased lying with his hands and legs tied with a rope and there were bleeding injuries on his person. P.Ws.1 and 2 asked the deceased as to how he came to sustain bleeding injuries, for which the deceased replied that because he cut the tapioca plants, the accused inflicted injuries and after tying him with rope, he went away. Immediately, P.W.1 asked P.W.2 to bring some vehicle to transport the deceased to the hospital and after some time, the TVS M80 belonging to P.W.3 was brought, in which the deceased was placed and after going to some distance, they picked up an auto and took the deceased to the hospital, where, in spite of the treatment given, the deceased died.
13.3. A fragile attempt was made that P.Ws.1 and 2 are interested witnesses as they are closely related to the deceased and hence, it would be unsafe to rely upon the oral dying declarations made to them by the deceased. But, even though they are closely related to the deceased, they would be the last persons to implicate the appellant-accused falsely in such a graver offence leaving out the real culprits. Moreover, the deceased was very much conscious at that time and the accused is also not a stranger to him and that even after he was produced before the doctor, P.W.15, it was he who made a statement that he was assaulted by the accused, as elicited from the doctor in his cross-examination.
13.4. With regard to the oral dying declaration made by the deceased to P.Ws.1 and 2, it would be apt to refer the decision of the Apex Court in Rattan Singh v. State of H.P., (1997) 4 SCC 161, whereunder the admissibility of the statement made by a person, who is dead and the meaning and scope of Sections 6 and 32(1) of the Evidence Act, has been elaborately discussed, which reads thus:
” 13. Section 32(1) of the Evidence Act renders a statement relevant which was made by a person who is dead in cases in which cause of his death comes into question, but its admissibility depends upon one of the two conditions: Either such statement should relate to the cause of his death or it should relate to any of the circumstances of transaction which resulted in his death.
14. Three aspects have to be considered pertaining to the above item of evidence. First is whether the said statement of the deceased would fall within Section 32(1) of the Evidence Act so as to become admissible in evidence. Second is whether what the witnesses have testified in Court regarding the utterance of the deceased can be believed to be true. If the above two aspects are found in the affirmative, the third aspect to be considered is whether the deceased would have correctly identified the assailant?
15. When Kanta Devi (deceased) made the statement that appellant was standing with a gun she might or might not have been under the expectation of death. But that does not matter. The fact spoken by the deceased has subsequently turned out to be a circumstance which intimately related to the transaction which resulted in her death. The collocation of the words in Section 32(1) circumstances of the transaction which resulted in his death is apparently of wider amplitude than saying circumstances which caused his death. There need not necessarily be a direct nexus between circumstances and death. It is enough if the words spoken by the deceased have reference to any circumstance which has connection with any of the transactions which ended up in the death of the deceased. Such statement would also fall within the purview of Section 32(1) of the Evidence Act. In other words, it is not necessary that such circumstance should be proximate, for, even distant circumstances can also become admissible under the sub-section, provided it has nexus with the transaction which resulted in the death. In Sharad Birdhichand Sarda case [(1984) 4 SCC 116 : 1984 SCC (Cri) 487 : AIR 1984 SC 1622] this Court has stated the above principle in the following words:
The test of proximity cannot be too literally construed and practically reduced to a cut-and-dried formula of universal application so as to be confined in a strait-jacket. Distance of time would depend or vary with the circumstances of each case. For instance, where death is a logical culmination of a continuous drama long in process and is, as it were, a finale of the story, the statement regarding each step directly connected with the end of the drama would be admissible because the entire statement would have to be read as an organic whole and not torn from the context. Sometimes statements relevant to or furnishing an immediate motive may also be admissible as being a part of the transaction of death.
16. Even apart from Section 32(1) of the Evidence Act, the aforesaid statement of Kanta Devi can be admitted under Section 6 of the Evidence Act on account of its proximity of time to the act of murder. Illustration A to Section 6 makes it clear. It reads thus:
(a) A is accused of the murder of B by beating him. Whatever was said or done by A or B or the bystanders at the beating, or so shortly before or after it as to form part of the transaction, is a relevant fact.
(emphasis supplied)
Here the act of the assailant intruding into the courtyard during dead of the night, victims identification of the assailant, her pronouncement that appellant was standing with a gun and his firing the gun at her, are all circumstances so intertwined with each other by proximity of time and space that the statement of the deceased became part of the same transaction. Hence it is admissible under Section 6 of the Evidence Act.
17. In either case, whether it is admissible under Section 32(1) or under Section 6 of the Evidence Act, it is substantive evidence which can be acted upon with or without corroboration in finding guilt of the accused.
13.5. That apart, while considering the nature of scope of Section 6 of the Evidence Act, which is also known as the rule of res gestae in English Law, the Apex Court in Gentela Vijayavardhan Rao v. State of A.P. [(1996) 6 SCC 241], has observed as follows:
” The principle of law embodied in Section 6 of the Evidence Act is usually known as the rule of res gestae recognised in English law. The essence of the doctrine is that a fact which, though not in issue, is so connected with the fact in issue “as to form part of the same transaction” becomes relevant by itself. This rule is, roughly speaking, an exception to the general rule that hearsay evidence is not admissible. The rationale in making certain statement or fact admissible under Section 6 of the Evidence Act is on account of the spontaneity and immediacy of such statement or fact in relation to the fact in issue. But it is necessary that such fact or statement must be a part of the same transaction. In other words, such statement must have been made contemporaneous with the acts which constitute the offence or at least immediately thereafter. But if there was an interval, however slight it may be, which was sufficient enough for fabrication then the statement is not part of res gestae.”
13.6. In the light of the dictum of the Apex Court, if we scrutinize the evidence on record, it can be discerned that the occurrence had taken place at the land of the accused; that the accused was seen by P.Ws.1 and 2 coming from the scene of crime immediately after the occurrence; that no one, except the accused was seen near the place; that the clothes of the accused were found to contain blood-stains; that the conduct of the accused in not responding to the witnesses when questioned as to what transpired at the place. Further, the above evidence of P.Ws.1 and 2 about the oral dying declaration made by the deceased also reflects in the complaint, Ex.P.1, lodged by P.W.1 within a short span of time, which shows the spontaneity and immediacy of the statement of P.Ws.1 and 2 in relation to the occurrence. Therefore, we find that the above evidence of P.Ws.1 and 2 is natural, cogent, convincing and therefore, trustworthy. If that be so, the onus is on the accused to explain the above circumstances and in the absence of any explanation for the same, the dictum of res gestae operates and thus, the same is admissible as per Section 6 of the Evidence Act on account of its proximity in time to the act of crime.
14. The third circumstance, which is the strong piece of evidence against the accused, is the evidence of P.W.7 before whom the appellant/accused is said to have made extra judicial confession immediately after he committed the crime. P.W.7 is nonetheless the junior paternal uncle of the accused and he has stated in his evidence that on the date of occurrence at about 10.00 p.m., when he came out of his house on hearing the barking of dogs, he saw the accused and his father standing in front of his house and when he asked them as to what happened, the accused confessed to him that on seeing the deceased cutting the tapioca plants, he shouted at him and beat him, for which the deceased also beat him and that he tied the deceased with a rope and returned back. It is the further evidence of P.W.7 that he went to the spot and found the deceased being taken to the hospital by P.Ws.1, 2 and others. He has further stated that the accused told him that only because the deceased cut the tapioca plants that were grown in his lands, the accused has caused injuries on the deceased. The confession made by the accused to P.W.7 is to be construed as an extra judicial confession and it is to be noted that P.W.7 is closely related to the accused and nothing was elicited to indicate that he may have a motive of attributing an untruthful statement to the accused. We are, therefore, of the opinion that the evidence of P.W.7 can be accepted as reliable and trustworthy.
15. The next circumstance is the medical evidence. P.W.15 is the doctor, who initially treated the deceased when he was brought to the hospital by the witnesses. On being questioned by the doctor, he was informed that the deceased was assaulted by one known person with hand, knife and unknown objects at about 10.00 p.m. on 19.1.2003 at Kuppangarai. On examining the injured, the doctor noticed ten injuries, which are already extracted above and he issued Ex.P.20, accident register copy. According to the doctor, he sutured the wounds found on the person and that the contusions over the body could be caused by M.O.5 stick and the cut injuries could have been caused by M.O.4 sickle. P.W.11, the doctor on conducting autopsy on the body of the deceased, found as many as fifteen injuries and he also noticed fracture in the skull, right leg and left elbow. The doctor issued Ex.P.10, post-mortem certificate, opining that the death could have occurred on account of shock and haemorrhage due to the injuries sustained. He has also stated in his evidence that fractures could have been on account of assault with M.O.5 and sutured wounds could have been caused by M.O.4 sickle. The above evidence of the doctors clearly establishes that the deceased was assaulted by one known person and that the assault was made by the weapons, M.Os.4 and 5. The defence has not elicited anything in favour of the accused and the accused also has no explanation as to this incriminating circumstance.
16. The last circumstance is the recovery of material objects. The investigating officer, P.W.16, on taking up investigation, proceeded to the spot, where he recovered M.O.1 rope and M.O.5 stick alleged to have been used for commission of offence. Further, after the arrest of the accused, pursuant to the confession made by the accused, which is admissible under Section 27 of the Evidence Act, he recovered the sickle, M.O.5, which the deceased was alleged to have brought with him to cut the tapioca plants, a pair of chappal, M.O.6 and a lungi, M.O.7 belonged to the accused. The above material objects, when sent for chemical examination, were found to contain blood-stains, though test of grouping was inconclusive. It is to be remembered at this stage that it is the evidence of P.W.2 that when he and P.W.1 questioned the accused, who was seen in an agitated mood, as to the murmuring sound they heard, the accused did not reply and went away and that P.W.2 noticed blood-stains in the clothes of the accused. The above recoveries were effected at the instance of the accused. Of course, the recovery cannot by itself be regarded as a conclusive piece of evidence for incriminating accused, but it is certainly a piece of evidence which goes to support the other evidence about the guilt of accused, vide Namdeo Daulata Dhayagude v. State of Maharashtra, (1976) 4 SCC 441 and further, the recovery of the blood-stained material object on the disclosure statement of the appellant provides enough corroboration to the prosecution evidence against the appellant, vide Puran Singh v. State of Punjab, 1995 Supp (3) SCC 665.
17. The contention of the learned counsel that the deceased must have been assaulted by several persons is liable to be rejected because both P.Ws.1 and 2 cogently and unambiguously stated that they have seen only the accused coming from the place of occurrence immediately after the occurrence and no one was seen coming from the place of crime. It is pertinent to note that the accused was seen in an agitated mood and when the witnesses questioned him, the accused, without giving reply, left the place.
18. It is also to be noted that the accused had no explanation for the aforesaid clinching circumstances and he had baldly denied the same when he was questioned under Section 313 Cr.P.C., which has to be taken as an additional link in the chain of circumstances. On the totality of evidence, we hold that the circumstances brought forth by the prosecution are sufficient to bring home the guilt of the accused.
19. The plea of the learned counsel for modification of conviction and sentence is not worth accepting, since even as per the medical evidence, the deceased had sustained as many as fifteen external injuries and fractures in the skull, right leg and left elbow, which show the gruesome attack by the accused and his intention to kill the deceased at once. As per the evidence of witnesses, the accused was nurturing a grievance against the deceased for cutting the tapioca plants grown at his lands, which stands unshaken by the defence. Hence, we have no sympathy on the accused to alter the conviction and sentence imposed on him.
In the result, finding no infirmity and illegality in the impugned judgment of the learned trial Judge, we dismiss this appeal. It is reported that the accused is on bail. The bail bonds executed by the accused shall stand cancelled forthwith and the learned Sessions Judge is directed to secure the accused and commit him to prison for him to undergo the remaining period of sentence.
sra
To
1. The Additional Sessions Judge,
Dharmapuri.
2. -do- Thro’ The Principal Sessions Judge,
Dharmapuri District.
3. The District Collector,
Dharmapuri.
4. The Director General of Police,
Chennai.
5. The Inspector of Police,
Karimangalam Police Station,
Dharmapuri District.
6. The Superintendent,
Central Prison, Vellore.
7. The Public Prosecutor,
High Court,
Madras