JUDGMENT
M. Karpagavinayagam, J.
1. Mani, the Appellant /Accused 1 and his son Pandi – Accused 2, were convicted for the offences under Sections 302 (on two counts) and 201 I.P.C.
2. The facts leading to conviction, are as follows:
(a) The deceased No. I Karuppasamy married one Kaliammal, who did not have any issue. Therefore, he divorced her and gave a piece of land to her as compensation as per the decision of the Panchayat. Thereafter, deceased No. I married one Lakshmi, deceased No. II. Out of the wedlock, a son Karuppasamy, P.W.1 and a daughter Lakshmi were born. Since deceased No. 1 had issue, he insisted his divorced wife to return the piece of land which he had given to her at the time of divorce. But the said Kaliammal was not inclined to hand over the land to him and told deceased No. I that she would give the land to her sister’s son Pandi / accused 2. Due to this, there was misunderstanding between them and deceased No. 1 Karuppasamy and his wife Lakshmi – deceased No. 2, said to have murdered Kaliammal. In respect of this incident, a case was registered against both the deceased. Even though they were tried for the offence of murder, ultimately they were acquitted. After their release, deceased No. I took over possession of the land on the strength of a forged document alleged to have been executed by the said Kaliammal before her death. In this respect, a civil suit was pending between deceased No. 1 and the accused. Since the disputed land was taken away by deceased No. 1, accused -1 Mani, father of A-2 Pandi developed strong enmity against the deceased. There were frequent quarrel between the parties.
(b) The fateful occurrence took place on 22.1.1995 . Deceased No. 1, after finishing his field work, was sitting near the cattle shed situate at the disputed land and was taking food. Deceased No. II Lakshmi was watering the field. P.W.1 Karuppasamy, son of the deceased, was grazing the cattle. Suddenly, A-1 Mani and A-2 Pandi, armed with aruval, came to the scene of occurrence and noticing the accused coming with weapons, deceased No. 1 got up and ran towards north, apprehending that he would be murdered by them. However, both the accused chased him; caught him and cut him with aruval repeatedly.
(c) On seeing the incident, deceased No. 2 ran towards the deceased I with a kalaikottu. Both the accused pushed deceased No. 2 on the floor and gave indiscriminate cut on her neck with aruval. Both of them died on the spot. Then the accused severed the neck of deceased No. 1 and took away the head and went towards the southern side. After throwing the head on the way to Alavanthankulam Village, they ran away from the scene with the aruvals. (d) This occurrence was witnessed by P.W.1 Karuppasamy, son of the deceased and also by one Kattamari, P. W. 3, who is the neighboring land owner and one Pechimuthu, the brother of the deceased No. 2 Lakshmi. P.W.1 rushed to the house of his grandfather Shanmugavel Thevar and informed him about the incident. Pechimuthu also came there and informed the same to P.W.2. After sending Pechimuthu to the Police Station to give a complaint, P.W.2 along with P.W. 1 and other villagers, came to the scene of occurrence. Pechimuthu went to Manoor Police Station and gave a report to P.W. 11. Ex.P.16 is the complaint and Ex.P.17 is the F.I.R. P.W. 11 Sub Inspector of Police registered the same under Section 302 I.P.C. against both the accused. Exhibit P-17 is the F.I.R. (e) P.W. 12 Inspector of Police, on receipt of the message, went to the scene of occurrence at 12.00 hours on 22/23.1.1995. He prepared Ex.P.1 observation mahazar and drew Ex.P-18 rough sketch. He conducted an inquest on the dead body of deceased No. 1 from 02.00 a.m. to 04.00 a.m. Ex.P-19 is the he inquest report. He also conducted an inquest on the dead body of the deceased 2 from 4.00 to 5.30 a.m. Ex.P-20 is t he inquest report . During the course of inquest, he examined P.Ws.1, 3 and Pechimuthu, the author of the F.I.R. He recovered the blood stained earth and blood stained cloths of the deceased.
(f) Next day early morning, P.W.12 Inspector of Police went in search of the head, which was severed from the body of the deceased and ultimately, found the head near Keelaipillayarkulam – Alavanthankulam cart track. He prepared another observation mahazar Ex.P-3 and drew Ex.P-21 rough sketch. At the place where the head was found lying, a separate inquest report was prepared under Ex.P-22. Thereafter the head was taken back to the place where the body was found. Ex. P-23 inquest report has also been prepared. Then he made arrangements to send the bodies for postmortem.
(g) P.W. 6, Doctor on 23.1. 1995 conducted post-mortem and found on alignment of the head to the trunk, that it belonged to one and the same person. He found several injuries on the body of deceased No. 1. Then he issued Ex.P-9 post-mortem certificate giving an opinion that deceased would appear to have died of heavy cut injuries to the region of the neck.
(h) At about 12.50 p.m., P.W.6 Dr. Paramasivam conducted post-mortem on the body of deceased No. 2 and found cut injuries on the neck and issued Ex.P-7 postmortem certificate giving an opinion that deceased No. 2 would appear to have died of heavy cut injuries to the region of the neck.
(i) During the course of investigation, P.W.12 Inspector of Police came to know that the accused surrendered before the Court at Srivaikundam, the very next day, i.e. on 24.1.1995. Even though P.W.12 filed an application for getting police custody before the Court, the same was dismissed. Then he continued the investigation and arranged to send the material objects for chemical examination. Ultimately, after completion of investigation, he filed the charge sheet under Section 302 read with 34 I.P.C. against the accused.
(j) The trial Court, however, framed charges against both the accused for the offences under Sections 302(on two counts ) and 201 I.P.C. During the course of trial, P.Ws.1 to 12 were examined, Exhibits P1 to P-23 were filed and M.Os. 1 to 5 were marked.
(k) The defence of the accused, while they were questioned under Section 313 of the Code of Criminal Procedure, is one of total denial. As a matter of fact, they have stated that they have no enmity at all with the deceased.
(l) On a consideration of the materials available on record, the trial Court concluded that the prosecution had proved its case beyond reasonable doubt and thereby convicted both the accused for the offences under Sections 302 ( on two counts) and 201 I.P.C. and each of the accused were sentenced to undergo life imprisonment and to pay fine of Rs.5000/- on each counts and in default of payment of fine to undergo rigorous imprisonment for five years on each counts for the offence under Section 302 I.P.C. and each of them were also sentenced to undergo five years rigorous imprisonment for the offence under Section 201 I.P.C. The Sessions Court ordered the sentences imposed on the accused to run concurrently. Aggrieved by the same , the first accused alone has filed the present appeal.
3. Though this appeal has been filed originally by Mr. Edmund on behalf of accused I, it was represented at the time of final disposal by Mr. Edmund, that the party had taken the bundle from him long back and as such, he had no instruction to appear on behalf of accused I. When it is verified with the Registry, it is noticed that nobody has entered appearance on behalf of accused I. Therefore, this Court thought it fit to appoint Mr. C. R. Malarvannan as Amicu Curiae to appear on behalf of accused I, the appellant herein. Admittedly, there is no appeal filed on behalf of Accused 2.
4. Now, Mr. C. R. Malarvannan, Amicus Curiae appearing for the appellant /accused 1, while assailing the judgment of conviction, would make the following contentions:
“(i) Though the complaint has been given by one of the eye- witnesses, namely Pechimuthu, the brother of the second deceased, the prosecution failed to examine him before the Court. Therefore, the prosecution cannot rely upon the complaint as well as the F.I.R., namely Exhibits P 16 and 17.
(ii) The only eye-witness produced by the prosecution to prove this case is P.W.1, who is a child witness. He is the son of both the deceased. The evidence of P.W.1, being a child witness, cannot be said to be reliable, as his deposition would indicate that the same was not in consonance with the statement made to the Police Officer. There are vital contradictions with reference to the material particulars relating to the occurrence and as such his evidence cannot be relied upon. (iii) According to P.W.1, he informed P.W.2 the grandfather, about the incident, who in turn came to the scene of occurrence immediately. This is supported by P.W.2 by stating that he came to the scene immediately after getting information from P.W.1 during night hours. But he told the police that he did not go to the spot immediately since he was afraid to go during late night hours. Therefore, he went to the spot next morning. If that be true, the evidence of P.W.1 that he informed P.W.2 in the night itself and therefore P.W.2 came to the spot cannot be true. (iv) Furthermore, the evidence of P.W.11 Sub Inspector of Police, would clearly show that the F.I.R. would not have been prepared at the relevant time, which is mentioned in the complaint and in the F.I.R. Furthermore, the trial Court summoned the pocket diary of P.W.11 and the general diary of the concerned Police Station and despite that they have not produced the same before the Court. As such, adverse inference had to be drawn in favour of the accused. Besides that, evidence of P.W. 1 would show that the details of the overt acts given in the evidence, were not given in the statement made by him to P.W.11 the Police Officer. Therefore, it is not safe for the Court to convict the accused, that too in a double murder, merely on the basis of the child witness, aged about 12 years, at the time of occurrence.”
5. In reply to the above submissions, learned Additional Public Prosecutor would contend that the reasons given by the trial Court for placing reliance on P.W.1 and convicting the accused for the offences referred to above, are correct and the same need not be interfered with.
6. We have given our careful consideration to the respective contentions urged by learned counsel for the parties. We have also gone through the records.
7. As correctly pointed out by Mr. Malarvannan, Amicus Curiae, the only evidence available in this case is the deposition of P.W.1. Unfortunately, Pechimuthu – the author of the F.I.R., one of the eye witnesses and Kattamari, another eye-witness, have not been examined. Resultantly, the court would not be able to act upon Ex. P-16 complaint and Ex. P-17 F.I.R. Similarly, the court is unable to use the evidence of P.W.3 Kattamari, one of the eye-witnesses, as he did not support the prosecution case and consequently he was treated hostile. Therefore, the only eye-witness who is available before the Court is P.W.1.
8. There is no dispute in the fact that P.W.1 was a child witness. At the time of examination before the Court, he was aged 15 years. At the time of occurrence, he was aged about 13 years. Before he deposed evidence, the Court put relevant questions to the child witness in order to test his understanding capacity. The Court, after considering the answers given by him, came to the conclusion that he was a fit person to give evidence, as he was able to understand the questions put by the Court. A perusal of the deposition given by P.W.1 both in chief and cross, in our view, would make it obvious that P.W.1 is a truthful witness giving a clear ocular account of the occurrence. It is noticed that he was cross examined at length. The answers given by him in the cross examination would clearly indicate that he withstood the cross-examination and confirmed the statement given to the police as well as in the chief examination.
9. According to P.W.1 on 22.1.1995 at about 6.00 O’ Clock, when he was grazing cattle near the disputed land, deceased No. 2, mother Lakshmi came to the field with food and the first deceased, after finishing his work, opened the tiffin box (J}f;Fr; rl;o) and began to take his food. Deceased No. 2 was also standing in the field by watering it. At that point of time, P.W.1 saw both the accused coming from the western direction with aruval in their hands. Deceased No. I , on noticing both the accused coming towards him with the aruval, got frightened, stopped taking food and began to run from the scene of occurrence . Both the accused chased him and then caught him. At that spot itself, both of them gave indiscriminate cut all over the body. Deceased No. 2, on seeing this frightful incident, came near her husband, carrying Kalaikottu in her hand. Both the accused pushed her down and gave cut on the neck. Both of them died on the spot. Having not satisfied with this, both the accused came near the deceased No. 1, severed his head, took away the same and proceeded towards south. This was witnessed by P.W.1, who was standing 50 feet away from the place of occurrence while grazing the cattle. Pechimuthu, the brother of deceased No. II also was standing nearby.
10. P.W.1 rushed to Kurinchi Nagar, Keelapillaiyarkulam village and informed the incident to his grandfather P.W.2 Shanmugavel Thevar. Within few minutes Pechimuthu also came and informed P.W.2. Then P.W.2 sent Pechimuthu to the Police Station to give complaint. Thereafter, he informed the villagers and came to the spot along with P.W.1 and the villagers. They were all waiting till the police came to the scene of occurrence.
11. After registration of the complaint at about 12.30 mid-night, P.W. 12 Inspector of Police came to the scene at 1.00 O’ clock in the midnight along with police party. P.W.12 conducted inquest on the bodies of the deceased and also conducted inquest on the head which was recovered next day morning. During the course of inquest, P.Ws.1., 3 and one Pechimuthu, the author of the complaint were examined. Thus, it is clear that P.W.1 was present at the scene place from the beginning.
12. Though, as correctly pointed out by Amicus Curiae counsel for appellant, we cannot act upon the complaint in the absence of examination of the author of the complaint, namely Pechimuthu, it is noticed from the evidence of P.W.11 and P.W. 12 that the name of P.W.1 has been mentioned in Exhibits P-16 and P-17, the complaint and the F.I.R., as one of the eye-witnesses. It is surprising to see that a suggestion has been put to P.W.1 by the accused that accused 1 and 2, along with two or three persons, came to the place of occurrence and attacked the deceased 1 and 2 and not by the accused 1 and 2 alone and P.W.1 emphatically denied the same. The evidence of P.W.1, both in chief and cross, would clearly establish that accused 1 and 2 alone came and attacked the deceased 1 and 2 and inflicted cut injuries on both of them. As a matter of fact, the defence of the accused in Section 313 Cr.P.C. questioning was one of total denial. They further went to the extent of stating that they had no enmity with the deceased party at all. If that be the situation, there was no reason for P.W. 1 to give a statement against the accused to implicate them in a double murder case. It is true that P.W. 1 is the son of the deceased and as such his evidence can be considered to be an interested evidence. But in the absence of any enmity, as admitted by the accused, the evidence of an eye witness, who is the relative of the deceased, cannot be said to be unreliable.
13. It is settled law that if the eye-witnesses are interested witnesses, their evidence cannot be rejected straight away for the mere reason that they are relatives and on the other hand their evidence has to be analysed with care and caution. The same would apply to the child witness also. In the light of the said principles, we have analysed the evidence of P.W.1, who was aged about 15 years at the time of examination very cautiously. In fact, P.W.1 would admit that he had no education. During cross examination, he has stated that he knew timing and he could see the clock and tell the time. He was asked to see the Wall Clock put on the wall of Court Hall and tell the timing. Accordingly, after seeing the Wall Clock, he told the Court the correct time. When he was asked about the distance between his place and the place where the occurrence took place, and the place where the head was thrown, he was able to give clear details by showing the distance between the Court premises and the roadside. These answers clearly indicate that P.W.1 is a truthful eye witness and his evidence is trustworthy and the same can be accepted as credible. Furthermore, his evidence has been corroborated by the evidence of P.W.6, Doctor, who found some partially digested food articles in the body of the deceased No. I. Apart from that, the observation mahazar which has been prepared immediately by P.W.12 at 1.00 O’ clock on 23.1.1995, would also show the topography given by P.W.1 in his evidence and the same tallies with the particulars given in the observation mahazar. This apart, the “J}f;Fr; rl;o” (Tiffin box) which contained a portion of the food was found available at the scene of occurrence.
14. It is true that P.W. 12 would admit that P.W.2 told him that he did not go to the spot during that night, since he was afraid to go there during night hours and that he went to the spot only in the early morning. But this admission of P.W.12 would be of no use to the accused, since P.W.2 told the Police that P.W.1 gave information about the occurrence to them during that night itself. There may be some variation between the evidence of P.W.2 and the statement given by him to the police with reference to the arrival of P.W.2 at the spot. But the fact remains that the evidence of P.W.1 that he went to P.W.2 and informed him about the occurrence during that night itself, is consistent with the evidence of P.W. 2. Therefore, this contention has to be rejected.
15. It was contended that the pocket diary and general diary were not produced. According to P.W.11 Sub-Inspector of police, the complaint was written by Writer Chellappa and that the F.I.R. was also written by him in his own handwriting. The said Writer Chellappa has not been examined. A perusal of Exhibits P-16 and 17 would show that these documents reached the Magistrate concerned at about 3 a.m. on the same night i.e. on 23.1.1995. Therefore, non-production of the general diary and the pocket diary, is in no way useful to the defence, especially, when we are satisfied that the documents, which have been prepared at 12.30 p.m. reached the hands of the Magistrate at 3.00 a.m. itself.
16. for the foregoing reasonings, there is no merit in this appeal and consequently, the same is liable to be dismissed and accordingly it is dismissed, confirming the conviction and sentence imposed on the appellant.
17. Before parting with the case, we record our appreciation for the services rendered by Mr. C.R. Malarvannan, Amicus Curiae, appearing for the appellant/A-1. The Tamil Nadu State Legal Services Authority is directed to pay Rs.1,500/-(Rupees one thousand five hundred only) to the Amicus Curiae- Mr. C. R. Malarvannan.