JUDGMENT
M. Karpagavinayagam, J.
1. Challenging the conviction and sentence of life imprisonment imposed on the appellant by the Principal Sessions Judge, Cuddalore, for the offence punishable under Section 302 of the Indian Penal Code, the appellant has tried this appeal.
2. The facts leading to conviction, in short, are as follows :
(i) The deceased Kaliaperumal is the senior paternal uncle of the accused Abraham Lincoln. There was a dispute over the property between the family of the accused and his uncle with regard to partition. The deceased had earlier convened panchayat in which he made a partition against the interest of the family of the accused.
(ii) One Chellappa, the father of the accused was not happy over the partition effected by the deceased. The accused family had a grudge against the deceased as his family was not given due share.
(iii) The fateful occurrence took place on 02.11.1997 at about 05.00 pm. The deceased Kaliaperumal was sitting in front of his house and doing some repair on his bicycle. At that point of time, the accused came with an axe, M.O.1 and began to attack the deceased indiscriminately on his neck, chest and back. The deceased died instantaneously at the spot itself.
(iv) P.W.1, the wife of the deceased and P.W.2, the son of the deceased were present at that time. P.W.3 also witnessed the occurrence. The accused ran away from the scene with the axe. Next day early morning at about 4.00 am P.W.1 went to Annamalainagar Police Station and lodged a complaint before P.W.9, the Sub Inspector of Police. A case was registered for the offence punishable under Section 302 of the Indian Penal Code.
(v) After registration of the first information report and sending the same to the Court P.W.9 along with his police personnel, came to the scene of occurrence at about 05.30 a.m. He prepared the observation mahazar, Ex.P.2 and drew rough sketch, Ex.P.16. He also seized sample earth, M.O.2 and blood stained earth, M.O.3. In the presence of panchayatdhars he conducted inquest on the dead body between 06.30 am and 08.30 am. and prepared Ex.P.17 Inquest Report. Thereafter, the body was sent for postmortem.
(vi) P.W.7 the doctor conducted postmortem at about 11.30 am and issued postmortem certificate, Ex.P.10. According to the doctor, the death of the deceased was due to shock and haemorrhage on account of the injuries sustained around the neck. On 04.11.1997 P.W.9 arrested the accused and on his confession M.O.1 was recovered. Then he was sent for judicial remand on 06.11.1997.
(vii) P.W.9 gave a requisition to the Judicial Magistrate No. I, Chidambaram. P.W.9 gave a requisition to the Judicial Magistrate to record the confession of the accused under Section 164 of the Code of Criminal Procedure. Accordingly, P.W.6, the Judicial Magistrate directed the accused to be produced before him on 10.11.1997 and when the was produced he gave preliminary warning in the closed court hall and advised the accused to come on the next day by giving time to think over before making confession. Accordingly, on 11.11.1997 the accused was produced and on the said date the judicial confession was recorded. Ex.P.8 is the judicial confession.
(viii) Then, PW.9 took up investigation and sent a requisition to the Court to forward the material objects for chemical analysis.P.W.10 took up further investigation and on completion of investigation filed the charge sheet against the accused under Section 302 of the Indian Penal Code.
2. During the course of trial, P.Ws.1 to 10 were examined and Exhibits P.1 to P.17 and Material Objects M.O.1 to 5 were marked.
3. The plea of the accused is one of total denial. The trial Court, having considered the materials placed before the Court by the prosecution, found the accused guilty for the offence punishable under Section 302 of the Indian Penal Code and sentenced him to life imprisonment. Hence, this appeal.
Mr. K.M. Subramaniam, learned counsel for the appellant by taking us through the evidence would make the following contentions :
(a) No eye witness would have seen the occurrence. P.W. 3 turned hostile. P.W.2 would not have been present at that time as P.W.2’s presence has not been mentioned in Ex.P.1 and P.W.2 was not examined during the course of inquest. Moreover, there is no reason for P.W.2 to keep silent without informing to the police about the incident. P.W.1’s evidence is not reliable as she has not informed the Village Administrative Officer or Police immediately after the incident. The occurrence took place at 05.30 pm. The complaint was lodged at 4.00 am the next day which reached the Magistrate only at 06.00 pm. As such, there is a delay in lodging the complaint as well as delay in the first information report reaching the Court. This delay has not been explained.
(b) The judicial confession, which has been recorded by P.W.6, the Judicial Magistrate was only on 11.11.1997. The contents of the judicial confession would not corroborate the evidence of P.W.1 and as such the judicial confession has to be discarded.
5. The learned Additional Public Prosecutor justifying the reasons given by the learned Sessions Judge in convicting the accused, would submit that the materials available on record would be sufficient to find the accused guilty for the offence punishable under Section 302 of the Indian Penal Code.
6. We have heard the counsel for the parties and considered the arguments. We have also perused the records.
7. At the outset, it shall be stated that the presence of P.W.2 at the time of occurrence is doubtful. As correctly pointed out by the counsel for the appellant his presence is not mentioned in Ex.P.1, the complaint given by P.W.1. Had P.W.2 been present, certainly, he, who happens to be a graduate, would have chosen either to rush to the Village Administrative Officer or to the Police Station to give a complaint. Further, P.W.2 has not been examined during inquest and the inquest report also does not refer to the presence of P.W.2 at the time of occurrence. Therefore, we are constrained to hold that P.W.2’s evidence has to be rejected as unreliable.
8. The other evidence available on record as against the accused is the testimony of P.W.1, the eye witness and the judicial confession, Ex.P.8 given by the accused to P.W.6, the Judicial Magistrate.
9. It is true that P.W.1 has not chosen to report to the police station immediately after the occurrence took place at 05.00 pm on 02.11.1997. The distance between the police station and the village is about 8 km. P.W.1 would admit that at the time of occurrence so many villagers have seen the occurrence. On hearing the news, his relatives also came there. Inspite of that, P.W.1 has not chosen to inform to the Police station or to the Village Administrative Officer either through villagers or through her relatives who came to the village. As correctly pointed out by the learned counsel, there is a delay of 11 hours in lodging the complaint. But then, on the ground of delay alone we are unable to reject the evidence of P.W.1.
10. It is true that the delay would cause some impact on the trustworthiness of the case of the prosecution. But it is to be borne in mind that if it is established that the delay had been used for the purpose of falsely implicating more accused, then we can hold that the delay has been used to fabricate the first information report. That is not the case here. This is a single accused case. P.W. 1 is the author of the first information report. According to her she came to the police station at 04.00 am and gave a complaint to P.W.9. The evidence adduced by the other witnesses would show that in the night time the bus facilities were not available. Further more, P.W.1 would state in the cross examination, on seeing the dead body she was not able to recover from the shock. In such a situation, we cannot reject the evidence of P.W.1 merely because there was some delay in lodging the complaint. The complaint had been registered at 4.00 am and the Judicial Magistrate had received the first information report at 6.00 pm on the same day. This delay cannot be construed to constitute a ground for rejecting P.W.1’s evidence in the absence of any reason to hold that the complaint is a fabricated one.
11. So many other infirmities in P.W.1’s evidence were brought to our notice by the counsel for the appellant. It is true that P.W.1 would admit that the blood stained sarees worn by P.W.1 were not recovered; and if P.W.1 were present at the scene, she would have tried to prevent the attack on the deceased and in that course, would have sustained injuries. Merely because the blood stained clothes worn by P.W.1 have not been seized it cannot be said that P.W.1’s evidence cannot be believed. Of-course P.W.1 would state that she tried to prevent the accused from further attacking. But it is not the case of the prosecution that she sustained injuries due to that. One cannot expect persons who are present in the place of occurrence would come near to the accused and to prevent him from causing other attacks or cry aloud by standing in the same place. It would all depend upon the reactions of the individuals. The reflection and reaction to an incident would differ from person to person. Further, it is not the case of the accused through judicial confession that P.W.1 was attacked.
12. It is true that in judicial confession, the accused did not state that P.W.1 was there and tried to prevent him from crying aloud. But the reading of the judicial confession in entirety would make it clear that he went to his sister’s house near the house of the deceased. He, on seeing the deceased doing some repair work in the bicycle, decided to punish him for his having done great damage to his family. According to him, he went to his sister’s house, took an axe and caused indiscriminate cuts on the neck, chest and back of the deceased, which resulted in his instantaneous death. Further, the observation mahazar, Ex.P.2, which has been spoken by P.W.9, the Sub Inspector of Police would make it clear that a bicycle was available at the scene. This is an additional factor to corroborate the contents of the judicial confession to the effect that the deceased was doing some repair work in the bicycle at the time of occurrence. This is also corroborated by P.W.1’s evidence, who stated that the deceased was sitting in front of the house doing some repair work and at that time, the accused came there and inflicted injuries on the deceased resulting in his death.
13. Therefore, a conjoint reading of P.W.1’s evidence and the judicial confession, Ex.P.8, which has been recorded by P.W.6, according to whom, the confession was voluntary, would make it clear that the accused had inflicted fatal injuries on the deceased by using axe and caused his instantaneous death.
14. Apart from that, it is the case of the prosecution through P.W.9 that the accused was absconding immediately after the occurrence and ultimately he was arrested only on 04.11.1997 and on his confession material objects were recovered. The doctor P.W.7 was of the opinion that the injuries found on the deceased would have been caused by a weapon like M.O.1 axe.
15. Therefore, we are of the opinion that the evidence of P.W. 1 and the judicial confession, Ex. P. 8 are reliable and acceptable, and, consequently, we have no hesitation to hold that the conviction and sentence imposed on the appellant by the trial Court are perfectly valid.
16. The Criminal Appeal is, therefore, dismissed.