IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 9.7.2008 CORAM: THE HONOURABLE MR.JUSTICE P.D.DINAKARAN AND THE HONOURABLE MR.JUSTICE K.N.BASHA Criminal Appeal No.840 of 2007 Guna @ Gunasekaran .. Appellant Vs. The State rep. by Inspector of Police Nagore Police Station Thittachery Police Station. .. Respondent ----- Appeal against the judgment of the learned Sessions Judge, Nagapattinam, dated 25.7.2007 made in S.C.No.1 of 2006. ----- For Appellant : Mr.Veera Kathiravan For Respondent : Mr.N.R.Elango Additional Public Prosecutor ----- J U D G M E N T
(Delivered by P.D.DINAKARAN,J.)
Aggrieved by the conviction under Sections 302 and 506(ii), ItPC and sentence to undergo imprisonment for life with fine of Rs.2,500/- and to undergo rigorous imprisonment for two years with fine of Rs.1,000/- respectively imposed on him by the learned Sessions Judge, Nagapattinam in S.C.No.1 of 2006, the accused has preferred the above appeal.
2. The allegation in the charges framed against the accused is that
(a) on 18.3.2005 at about 12.30 pm, the accused attacked one Sourrirajan on his neck with aruval, resulting in instantaneous death, due to previous enmity, in the place belonging to one Liyakath Ali situated at western side of Enangudi Road, Pakkam Kottur Village and thereby he committed an offence punishable under Section 302, IPC; and
(b) in furtherance of the said occurrence, when one Thiyagarajan, son of the deceased Sourrirajan, was shouting at him not to attack, he threatened him that he would also do away with him and thereby he committed an offence punishable under Section 506(ii), IPC.
3. The case of the prosecution, as discerned from the evidence of prosecution witnesses, is as follows:
(a) P.W.1, son of the deceased, deposed that he knew the accused who was residing 3 kms away from his place. On the date of occurrence, at about 8 am, the deceased went to the agricultural field. At about 10 am, he went to the field taking lunch for the deceased. At that time, the deceased was cleaning the thresh floor. At about 11 am, the accused brought about 10/12 goats through their field, which was resisted by the deceased since standing crops were there. The accused scolded the deceased with filthy words, to which, the deceased reacted and shouted against him. In the altercation, the accused rebuked the deceased by saying that he would do away with him and the deceased countered that he would also do the same. Thereafter, the accused left the place with his goats. At about 12/12.30 pm, the accused came to the place of occurrence in a bicycle, where the deceased was doing cleaning work. At that time, four/five fields away from the place of occurrence, he was working. On hearing some noise, he went to the place of occurrence where he saw the accused taking the aruval, M.O.1 and immediately, he shouted against the accused not to cut the deceased. But, the accused cut the deceased on the left side of the neck. At once, the deceased fell down and the accused threatened the people who were working there that he would do away with them if they come near to him. At that time, P.Ws.2 to 6 were working there. P.W.6, who was working at a distance of 10 feet, swooned on seeing the occurrence. After ten minutes, he went to his residence, which was 2 kms away from the place of occurrence, in the bicycle. After informing about the incident to his mother, brother and relatives, he went to the Police Station at about 15 kms and reached there at about 3/3.15 pm. He lodged a complaint, Ex.P1 to P.W.15. Thereafter, he left in his friend’s motor cycle to the place of occurrence where the Police came at about 4 pm and enquired him and others.
(b) P.W.2, an eye witness, who was working in the field of Liyakat Ali where the occurrence took place, deposed that he knew P.W.1 and the accused and even though he was working in the field at the time of occurrence, which was four/five fields away from the place of occurrence, he was not aware as to how the deceased was done to death. Hence, he was treated as hostile witness.
(c) P.W.3, another eye witness, deposed that he knew the deceased, P.W.1 and P.W.2 and on the date of occurrence, he was drying the crops in the road; at about 12 noon, on hearing the noise and seeing the people gathering at the place of occurrence, he also went and saw the deceased lying dead with blood; on seeing the deceased, he fainted; he had not seen the accused earlier or on the date of occurrence; and he was not aware about who murdered the deceased. Hence, he was also treated as hostile witness.
(d) P.W.4, who is also an eye witness to the occurrence, deposed that he knew P.Ws.1 to 3, but not the accused and he was not present at the time of occurrence; he came to the place of occurrence only on hearing about the incident; and he was not aware of the details as to who caused the death of the deceased. Hence, he was also treated as hostile witness.
(e) P.W.5, another eye witness to the occurrence, deposed that he did not know about the cause of the death of the deceased as the distance between the field in which he was working and the place of occurrence would be four fields; he cannot see the place of occurrence from the field in which he was working and he cannot hear the sound also; at about 12.30 pm on the date of occurrence, he saw the crowd at the place of occurrence; and he did not know as to who murdered the deceased. Therefore, he was also treated as hostile witness.
(f) P.W.6, who is also an eye witness to the occurrence, deposed that on his return from temple at about 12.30 pm, he was informed that the deceased was done to death; on seeing the crowd, he went and saw the deceased, but he did not know as to who caused the death of the deceased and the manner in which the deceased was done to death; and he was not present at the time of occurrence. Hence, he was also treated as hostile witness.
(g) P.W.10, Vice President of the Panchayat Union, deposed that he knew the accused as well as P.W.1 and the deceased and even though he knew that the deceased was murdered, he did not know as to who committed the murder. Hence, he was also treated as hostile witness.
(h) P.W.15, Sub Inspector of Police, on receipt of complaint from P.W.1 at about 3.00 pm registered a case in Crime No.128/2005 for the offence under Sections 302 and 506(ii), IPC. Then, he prepared Ex.P10, printed FIR and forwarded the same to the Judicial Magisterial Court as well as higher officials through P.W.13.
(i) P.W.16, Inspector of Police, on receipt of FIR, took up investigation, visited the scene at about 5.15 pm, prepared observation mahazar, Ex.P2 in the presence of P.W.7 and another and drew rough sketch, Ex.P11. He collected some blood stained straws and plain straws. He also collected the belongings of the deceased under mahazar, Ex.P4. He conducted inquest over the dead body in the presence of Panchayatdars and prepared inquest report, Ex.P12. He took photographs of the dead body as well as the scene through P.W.12, photographer. He sent the dead body for post mortem through P.W.14, with requisition for conducting post mortem, Ex.P7. He recorded the statements of P.Ws.1 to 7 and another.
(j) In the meantime, P.W.11, Doctor conducted autopsy over the dead body and found the following injuries :
“(i) Cut injury starting from left to right side of the neck just above the collar bone only skin and muscle in attached with neck at the C.7 vertebra at right side of the neck;
(ii) Trachea, all major blood vessels are cut through and through, all the neck muscles are cut except minimal right sternocledomortid muscle lower level; and
(iii) Spinal card and Vertebra are cut at the levely of C.7. Only minimal skin about 12 cm from anterior to posterior with muscle attached in the right side of the neck with the body.”
He opined in the post mortem certificate, Ex.P8 that the deceased would appear to have died of shock and haemorrhage due to cut injury in the neck.
(k) P.W.16, Investigating Officer, in furtherance of his investigation, sent the material objects for chemical examination and obtained chemical analyst’s reports. He also recorded the statements of other witnesses. On 21.3.2005, at about 7 pm, he arrested the accused and recorded the confession statement of the accused in the presence of P.Ws.8, 9 and another. The admissible portion of the confession statement of the accused is Ex.P13. Based on the confession, he recovered M.O.1 and other materials under mahazar, Ex.P6. Thereafter, he remanded the accused to judicial custody. After recording the statements of other witnesses and completing investigation, he laid the final report on 30.3.2005.
4. The case was committed to Court of Sessions and charges were framed and since the accused denied his complicity in the offence, the case was taken up for trial. In order to substantiate the charges levelled against the accused, the prosecution examined P.Ws.1 to 16, filed exhibits P1 to P17 and marked material objects M.Os.1 to 15.
5. The accused was questioned under Section 313 Cr.P.C. as to the incriminating circumstances that appeared against him, and the accused denied the same. Neither any witness was examined nor any documentary evidence was produced on his side.
6. The learned trial judge, on perusal of the materials, oral and documentary and after hearing both sides, convicted and sentenced the accused as aforementioned. Hence, the present appeal.
7. The learned counsel for the appellant/accused assails the conviction and sentence on the following grounds, viz.
(a) except the evidence of P.W.1, no other evidence of eye witnesses was available, as they have turned hostile and therefore, it is not safe to convict the accused based on the evidence of P.W.1, since P.W.1 is an interested witness, as he happened to be the son of the deceased; and
(b) the delay of three hours in lodging the complaint, which was not properly explained, is fatal to the case of the prosecution.
8. Per contra, learned Additional Public Prosecutor retaliates that
(a) the evidence of P.W.1, who has witnessed the occurrence, cannot be brushed aside merely on the ground that P.Ws.2 to 6, other eye witnesses, have turned hostile and that he is an interested witness; and
(b) immediately after the occurrence, P.W.1 went to his house which is about 2 kms from the scene of occurrence in a bicycle and thereafter, he went to the Police Station, which is 15 kms away from his residence and therefore, there was a delay of 3 hours in lodging the complaint, which cannot be stated to be a delay affecting the case of the prosecution.
9. We have perused the entire materials on record and heard the submission of both sides.
10. The question that arises for our consideration is as to whether the prosecution has established its case beyond all reasonable doubts.
11. Before proceeding on the issue in question, we have to analyse whether the death of the deceased was due to homicidal violence. The doctor, P.W.11, who conducted autopsy, has stated in his evidence that the deceased died of shock and haemorrhage due to cut injury in the neck and also issued Ex.P8, post mortem certificate describing the injuries found on the dead body. Hence, we do not have any difficulty in holding that the death of the deceased was due to homicidal violence.
12.1. Even though the learned counsel for the appellant contends that the evidence of P.W.1 is not trustworthy since he is an interested witnesses, it is settled law that relationship is not a factor to affect the credibility of a witness and it is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person.
12.2. In Dalip Singh v. State of Punjab, (AIR 1953 SC 364), the Apex Court laid down as hereunder:-
“26. 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 wich to implicate him falsely. Ordinarily a close relation 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 a 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. However, we are not attempting any sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts.”
12.3. Again in Masalti v. State of U.P., AIR 1965 SC 202, the Apex Court observed that:
“But it would, we think, be unreaonsable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. …. The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct.”
12.4. Further, in Pulicheria Nagaraju v. State of A.P. (2006) 11 SCC 444, it has been observed:
“… that evidence of a witness cannot be discarded merely on the ground that he is either partisan or interested or closely related to the deceased, if it is otherwise found to be trustworthy and credible. It only requires scrutiny with more care and caution, so that neither the guilty escape nor the innocent wrongly convicted. If on such careful scrutiny, the evidence is found to be reliable and probable, it can be acted upon. If it is found to be improbable or suspicious, it ought to be rejected. Where the witness has a motive to falsely implicate the accused, his testimony should have corroboration in regard to material particulars before it is accepted.”
12.5. From the above well settled principles, it is clear that the evidence of P.W.1 cannot be discarded merely on the ground that he is closely related to the deceased. However, the testimony of P.W.1 should be corroborated by material particulars before it is accepted as trustworthy.
12.6.1. Consequently, the next question that arises for our consideration is whether the evidence of P.W.1 stands corroborated by material particulars or not?
12.6.2. As per the evidence of P.W.1, there was a quarrel between the deceased and the accused at about 11 am, as the accused brought about 10/12 goats through the standing crops in the field of the deceased and the same was resisted by the deceased. Hence, the accused scolded the deceased with abusive words and the deceased reacted and shouted against the accused. In the said hassle, the accused threatened the deceased that he would do away with him and thereafter, he left the place with his goats. Around 12/12.30 pm, the accused rushed to the scene of occurrence with aruval, M.O.1 and delivered cut on the neck of the deceased.
12.6.3. The evidence of P.W.1 with regard to the overt act of the accused is corroborated by the medical evidence, P.W.11 coupled with the post mortem certificate, Ex.P8. Therefore, we have no hesitation to hold that the evidence of P.W.1 is trustworthy and credible.
13.1. However, a question arises for our consideration as to whether the accused is entitled to the benefit of Exception 1 to Section 300, IPC or not?
13.2. As per the evidence of P.W.1 there was a wordy quarrel since the accused brought his goats through the standing crops in the field of the deceased. But, as per the confession statement of the accused, in the wordy quarrel, the deceased used abusive words against the accused and his mother, which provoked the accused to inflict cut injury on the deceased.
13.3. Even though there was no material to prove that the deceased was the aggressor, since it is settled law that the inadmissible portion of the confession made under Section 27 of the Evidence Act, can be relied upon for the benefit of the accused, we traversed into the original records wherein we found that when the accused took the goats through the standing crops in the field of the deceased, the deceased objected to the same by uttering that “the accused has no sense and he had just grown up like a beast and should not have grazed the goat in the crop field”. That apart, the deceased has also went to the extent of abusing the mother of the accused in filthy words. Therefore, it appears that the accused has lost his self control and got provoked, which was also witnessed by P.W.1.
13.4. We, therefore, have no hesitation to hold that the accused is entitled to the benefit of Exception I to Section 300, IPC.
14. With regard to the delay of three hours in lodging the FIR, it is evident from the records that immediately after the occurrence, P.W.1 went to his house which is about 2 kms from the scene of occurrence in a bicycle to inform his mother and brother. Thereafter, he went to the Police Station which is situated about 15 kms from his residence. Therefore, we are satisfied that it would definitely take three hours for P.W.1 to reach the police station. Further, the fact that P.W.1, who happened to be the son of the deceased and having seen the occurrence, would have become perturbed cannot be ruled out. Moreover, the distance between the scene of occurrence and the Police Station as well as the fact that P.W.1 went to the house by bicycle and thereafter, to the Police Station have not been controverted by the learned counsel for the accused. Hence, the contention that the delay in lodging the complaint would be fatal to the case of the prosecution is not sustainable.
15. In the facts and circumstances of the case, as there is no pre-meditation on the part of the accused in committing the offence and only on account of the conduct of the deceased in uttering abusive words against the accused and his mother, the unfortunate occurrence had taken place, we are of the considered opinion that the offence under Section 302, IPC has not been made out and the act committed by the accused is only culpable homicide not amounting to murder. Accordingly, the appellant/accused is convicted under Section 304 Part I, IPC, and the sentence of life imprisonment is modified to rigorous imprisonment for seven years.
The appeal is partly allowed.
Index : Yes/No (P.D.D.J.) (K.N.B.J.) Internet : Yes/No 9.7.2008. kpl To 1. The Sessions Judge Nagapattinam. 2. The Public Prosecutor High Court, Madras. P.D.DINAKARAN, J, AND K.N.BASHA, J. kpl Crl.A.No.840 of 2007. 9.7.2008.