JUDGMENT
A.S. Venkatachalamoorthy, J.
1. Various charges were framed against the appellants/accused as a result of the investigation in Crime No.723 of 1999 on the file of the Gingee Police Station. The said crime was registered pursuant to a complaint given by PW-1 Mummurthy with reference to the murder of his father viz., deceased Pachayappan.
The learned Additional Sessions Judge, Villupuram, after due trial, found A-1 and A-2 guilty under Sections 148 and 302 IPC. So far as A-3 and A-4 are concerned, he found them guilty under Sections 148, 302 and 326 IPC. While A-5 was found guilty under Sections 148 and 324 IPC., A-6 under Sections 147 and 341 IPC. The said Judgment of the learned Additional Sessions Judge in S.C. No.169 of 2000 is under challenge in this appeal.
2. The prosecution, in its endeavour to bring home the guilt of the accused, examined PWs-1 to 10, marked Exs.P-1 to P-24 and produced MOs-1 to 9. On behalf of the defence, two witnesses viz., DWs-1 and 2 were examined and Exs.D-1 to D-3 were marked.
3. The case of the prosecution, as unfurled from the oral and documentary evidence let in the by the prosecution, can be set out as under:-
PW-1 is the son and PW-2 is the wife of the deceased. A-2 to A-4 are the sons of A-1 and A-5 and A-6 are coolis, working under A-1. All those mentioned above belong to the village called Aviyur in Gingee Taluk.
The family of the deceased owns about 50 acres of land. Close to that, the accused also own lands. About one year prior to the occurrence, the deceased purchased land from one Sekar and Arjunan, who are the sons of one Arul, and in that regard, the accused had a grievance. The accused took their carts in the wet land of the deceased and in that regard, there had been dispute between the parties and in fact, both of them filed civil suits. On 22.9.1999, evening at about 5 P.M., PW-1 was doing some work in the field and at that time, A-3 drove a double bullock cart into that land. When PW-1 questioned about the conduct of A-3, he told PW-1 that he would do so and in fact, pushed PW-1 on the ground and slapped him on the cheek. A-3 at that time openly proclaimed that he will get people and deal with them. PW-1 then went home and informed the deceased so also his mother PW-2 about this event. The deceased then replied to PW-1 that since the accused will pass through only by the side of their house, he would question them in that regard at that time. On the same day, at about 8 P.M., the deceased and PWs-1 & 2 were sitting on the pial of the house. At that time, a cart driven by A-6 passed by the side of the house of the deceased. The deceased then questioned A-3 as to why he slapped PW-1 on the cheek earlier. Immediately, all the accused got down from the cart and PW-1 could identify them with the help of the top light in their house so also with the help of the street light. A-1 was having a pattai knife; A-2 an axe ; A-3 a knife; A-4 a koduval ; A-5 a cycle chain and A-6 was having a Koduval. All of them encircled the deceased and then started attacking him. A-2 attacked the deceased with axe on the left leg while A-3 with koduval cut the deceased on the head. Thereafter, A-4 with knife cut on the left wrist. A-1 cut the deceased on the right chest and again A-2 cut on the backside of the head. The deceased, who received injuries, fell down on the floor screaming. When PWs-1 and 2 went near, A-5 started attacking with cycle chain and it fell on PW-2. A-6 caught hold of PW-1 and when PW-2 came there to prevent, A-3 with koduval, cut PW-2 on the left hand. Following this, A-4 with knife cut PW-2 below the right knee. A-2 then again cut the deceased on the heels. Following this, A-3 with knife again cut the right and left side of the head of the deceased. A-5 beat the deceased with cycle chain. When PWs-1 and 2 shouted, they all ran away.
PWs-3 and 4, who also belong to the same village, were standing at the relevant time near Bajanai Koil and chatting. On hearing the noise, they rushed to the scene, where they saw the accused running with weapons. PW-1 and his elder brother then took the deceased and PW-2 and proceeded to the Government Hospital, Gingee.
PW-6 is the Doctor attached to the Government Hospital at Gingee. When he was on duty at 11.10 P.M. on 22.9.1999, the deceased was brought to the Hospital for treatment. The deceased was at that time conscious and oriented. The Doctor was told that the assault was by five known persons by using koduval at 8 P.M. on 22.9.1999 at the house of the deceased. He gave first aid and referred the patient to Jipmar Hospital, Pondicherry. Ex.P-6 is the accident register issued by him.
The very same Doctor treated PW-2 at 11.30 P.M. PW-2 was found to be conscious and oriented. The Doctor was informed that the assault was by five known persons by using koduval, knife etc. at 8 P.M. on 22.9.1999 at her house. The Doctor noted as many as five injuries out of which injury Nos.1 and 2 were grievous.
Thereafter, PW-1 took the deceased to Jipmar Hospital at Pondicherry, where they were advised to take the deceased to Madras for further treatment. Hence, they proceeded to Madras, but however, when they neared Chengalpattu, the deceased died. PW-1 returned back with the deceased to the Government Hospital, Gingee.
On 23.9.1999 at about 8.30 A.M., PW-10, the Inspector of Police, was in Gingee Police Station. He received a message from Government Hospital, Gingee and proceeded to the Hospital. At the hospital, he examined PW-1 and recorded his statement Ex.P-1. The Inspector of Police thereafter returned to the police station and registered Cr. No.723/99 under Sections 302 IPC. etc. and prepared Ex.P-22 Express F.I.R. Ex.P-1 and P-22 were then sent to the Court of Judicial Magistrate, Gingee. He again went to the Government Hospital, Gingee. In the presence of panchayatdars and witnesses, he conducted inquest over the body of the deceased between 10.45 A.M. and 2 P.M. Ex.P.23 is the inquest report. He examined PWs-1, 2 and one Raman and recorded their statements. Necessary requisition was given to the Doctor to conduct post mortem.
Thereafter, the Investigating Officer proceeded to the scene of occurrence and after inspecting the same, prepared Ex.P-2 observation mahazar and P-24 sketch in the presence of witnesses. MOs-6 to 8 were seized at the scene of occurrence under Ex.P-3 mahazar. The Inspector examined witnesses and recorded their statements.
PW-7 is the Doctor at the Government Hospital, Gingee, who, after receiving the requisition Ex.P-9 from the Investigating Officer, conducted autopsy on the body of the deceased at 4 P.M. on 23.9.1999. Ex.P-12 is the post mortem certificate issued by the Doctor. In the post mortem certificate, the Doctor noticed as many as fourteen injuries. We here-under extract the injuries as described by the Doctor so also as to what he found in the internal examination:-
” External Injuries:-
1. Cut injury over the left lower leg extending from the anterior to posterior aspect of the left leg 6 x 4 x bone deep associated with fracture of tibea and fibula.
2. Incised wound over the left heel 8 x 3 x bone deep.
3. Incised injury right heal over the lateral mallealous 8 x 3 x bone deep.
4. Lacerated wound over the left wrist joint 3 x 1 cm. x 1 cm.
5. Incised wound over the right anterior axillary fold 6 x 3 x bone deep.
6. Right ear lobe torn into two haves fee incised extending across the right ear transversely 6 cm. in length expony the mostrial process and external auditory mactus.
7. Lacerated injury over the right mastoid process associated with fracture of the mastoid bone 4 x 3 cm. x bone deep.
8. Cut injury left ear lobe injury involving the ear pina only transversely 2 cm. in length 1 cm. in width.
9. Incised wound over the occipital bone right side 6 cm. x 2 x bone deep associated with fracture of the occipital bone.
10. Multiple longitutional abrasion chain like impression over the left upper arm each 0.5 x 0.5 cm.
11. Similar chain like abrasion as injury NO.10 is over the back in the Interscapula area right lateral chest wall size 0.5 x 0.5 cm. with length 6 cm.
12. Abrasion right side scapular 4 x 2 cm.
13. Two abrasion over the back of neck 2 x 7 cm. each.
14. Chain like abrasion over the right shoulder 0.5 x 0.5 each length 4 cm. present.
INTERNAL EXAMINATION:-
1. Head skull fracture of right temporal bone extending from the mustoid process to the middle of temporal bone fracture of the right side of occipital bone present.
Meningited tear present at the corresponding fracture sites. BRAIN: congested about 50 ml. of blood clot present over the right temporal lobe. NECK: Larynx: Pharynx trachea congested. Hyoid bone preserved and in tact. Thorax right side 4th rib. Associated with congestion of muscles and blood clots present lungs congested. Heart : All four chambers empty. Abdomen, Liver, Spleen, Kidneys congested. Stomach 300 ml. of undigested food particles present. Intestines distended with gas both small and large intestine. Bladder empty. Penis and scrotum normal. Post mortem concluded on 23.9.99 at 5 P.M. ”
The Doctor had opined therein that the deceased would appear to have died of shock and haemorrhage due to multiple injuries and injury to head, which is a vital organ, about 12 to 18 Hours prior to autopsy.
On 3.10.1999 at about 5 P.M., on the basis of the information, the Inspector of Police proceeded to Ottampattu village and arrested A-2 and A-4 to A-6 in the presence of witnesses. On arrest, A-2 gave a voluntary confession statement and the admissible portion of the same has been marked as Ex.P-4. A-2 then took the police party and witnesses to a place in his garden and from hayrick produced MOs-1 to 5 and the same were seized under a mahazar Ex.P-5 at about 6.30 P.M. Thereafter, on 20.10.1999, he arrested A-1 and A-3 near Dindivanam Bus-stand in the evening at about 5 P.M. In the following days, he examined witnesses including Doctors and recorded their statements. Ex.P-20 is the chemical analysis report while P-21 is the report of the Serologist. The Inspector of Police, after completing the investigation, filed his final report.
4. When questioned under Section 313 Cr.P.C. the accused denied having any complicity in the commission of the crime. They have pleaded that they have been falsely implicated by the prosecution party.
5. On behalf of the defence, an advocate by name Devakumar was examined. The said witness has deposed about the institution of a civil suit and about obtaining of interim orders. He has further deposed that the accused came and told him that they have nothing to do with the murder of the deceased and that since the police people are searching for them, they would like to surrender before the Court and that he took steps in that regard.
Yet another defence witness DW-2 by name Krishna Mesthiri has deposed before Court that there is a well common to him as well as the deceased and his sons and that the sons of the deceased had demolished it and the same was brought to the notice of the panchayat and the panchayat asked him to approach the Court and that thereafter, the deceased and his sons set fire to a hut, wherein he had kept a motor. He has further deposed that again he complained to the Panchayat and the Panchayat decided that the deceased and his sons should pay him (DW-2) a sum of Rs. 5,000/-.
6. PW-7 is the Doctor attached to the Government Hospital, Gingee. It was he, who, pursuant to the requisition Ex.P-9 made by the Inspector of Police, conducted post mortem on the body of the deceased on 23.9.1999 at about 4 P.M. and issued Ex.P12, the post mortem certificate. In the said certificate, the Doctor noted as many as 14 external injuries on the body of the deceased. The external injuries described by the Doctor so also what the Doctor found on internal examination, have already been extracted by us in the earlier part of this Judgment. Hence, it is unnecessary to repeat the same over again. Suffice to say that the Doctor has testified before Court that the deceased died of shock and haemorrhage due to multiple injuries and injury to head, which is a vital organ and that death would have occurred about 12 to 18 hours prior to autopsy. The Doctor PW-7 was subjected to cross examination by the defence. It has to be pointed out that the Doctor was put only a few questions with regard to some of the injuries. The Doctor has deposed that some of the injuries could have been caused by a person falling on a rough surface. The medical evidence available on record would amply show that the deceased died only of homicidal violence and there can be no iota of doubt about it.
7. The next question is, whether the occurrence took place in the manner and at the time as alleged by the prosecution.
8. Briefly, the case of the prosecution, as spoken to by PWs-1 to 4 is that the accused and the deceased are agriculturists owning lands close-by. The deceased purchased some lands from the sons of one Arul and on that score, the accused had a grievance. In fact, on one occasion, the accused drove the bullock-cart in the land of the deceased that too not in the defined cart-track but in the cultivable portion. In this regard, both the parties approached civil court and cases were pending. On the fateful day, that was on 22.9.1999 at about 5 P.M., when PW-1 was in his land and doing some agricultural work, A-3 drove his double bullock cart in the wet land of the deceased and when this was questioned by PW-1, A-3 got down from the cart, pushed down PW-1 and slapped him on his face. Further, A-3 threatened PW-1 that he would come with men and deal with them. PW-1, who returned home thereafter, informed his father and mother about this. The deceased consoled PW-1 saying that when the accused happen to pass the way, he would question them. On the same day at about 8 P.M., when the deceased and PWs-1 and 2 were sitting on the pial of the house, the accused came in a cart driven by A-6. When the cart neared the house of the deceased, he questioned A-3 as to why he slapped A-3 on his cheek. Then, all the accused, who were armed with deadly weapons, got down from the cart and attacked the deceased. When PW-2 went to prevent them, she was also beaten and she sustained injuries. PWs-3 and 4, who happened to be near Bajanai koil which is just 70 ft. away from the scene of occurrence, on hearing noise, rushed to the place of occurrence and saw the accused running away with deadly weapons. The above is, in short, the case of the prosecution.
9. The question is, whether the testimony of the above witnesses are worthy of acceptance.
PW-1 is the son and PW-2 is the wife of the deceased and that the occurrence took place in front of the house of the deceased at about 8 P.M. on 22.9.1999. Hence, the presence of these two witnesses at the scene of occurrence is quite natural.
In fact, the Supreme Court, in the ruling (State of Rajasthan v. Teja Ram), has pointed out that when any incident happens in a dwelling house, the most natural witness would be the inmates of that house and that it is unpragmatic to ignore such natural witnesses and insist on outsiders who would not have seen anything. As far as the present case is concerned, as already pointed out, the deceased and PWs-1 and 2 were sitting on the pial of the house and seeing that the accused are coming in a double bullock cart driven by A-6, the deceased questioned A-3 for slapping PW-1 on that day in the evening in his field and naturally, the occurrence took place in front of the house of the deceased. The occurrence took place at 8 P.M. in the village and it would be difficult to expect passers-by at that time and who would have witnessed the occurrence. That being so, we are not inclined to reject the testimonies of PWs-1 and 2 on the simple ground that they are closely related to the deceased.
10. The other criticism levelled against PW-1 is that when he took his father all the way to the Government Hospital at Gingee, he should have immediately rushed to the police station, which is very closely located to the Hospital and lodged a complaint.
If we look at the post mortem certificate, it could be seen that the deceased had sustained as many as 14 injuries. Not only the deceased, even the mother of PW-1 viz., PW-2 had sustained five injuries out of which two are grievous in nature. Certainly, saving his parents would have been foremost in the mind of PW-1 and hence, his rushing to the Hospital straight cannot be criticised. The Doctors in the Government Hospital, Gingee advised him to take the deceased immediately to Jipmar Hospital at Pondicherry. There is nothing wrong that a dutiful son like PW-1 rushing to Jipmar Hospital in his endeavour to save his parents instead of going to the police station to give complaint, which could have certainly consumed some time. That being so, there is nothing wrong in PW-1 rushing to Jipmar Hospital even without giving a complaint at the Police Station at Gingee.
11. Of course, the learned counsel for the appellants/accused put forth submissions that the prosecution has not placed any material to show that the deceased was in fact taken to Jipmar Hospital and that further Exs.P-6 and P-7 viz., accident registers issued by PW-6 with reference to the deceased and PW-2 would show that they were brought to the Hospital by one Dhanasingh and he has not been examined and that these two factors would go to the root of the prosecution case.
We are not inclined to accept the above submissions made by the learned counsel for the accused. At best, it can only be said that the prosecution could have placed before court the evidence gathered by it. Certainly, failure to do so will not in any way affect the case of the prosecution.
12. Yet another submission made by the learned counsel for the appellants/accused is to the effect that both in Exs.P-6 and P-7 viz., the accident registers issued with reference to the deceased and PW-2 respectively by the Doctor at the Government Hospital, Gingee, it is stated that the assault was by five known persons and that is not the case of the prosecution. Here again, we are not impressed by this argument that this will go to the root of the prosecution case and that, the entire case of the prosecution has to be disbelieved. After all, the accused came in a cart and the deceased and PWs-1 & 2 were attacked by five accused and if A-6, who was present at that time is added, it will come to six. That being so, we do not find any substance in this submission.
13. Coming to PW-2, as already pointed out, she is none else than the wife of the deceased. A perusal of Ex.P-7 the accident register issued by the Doctor at the Government Hospital, Gingee, would show that she sustained as many as five injuries out of which injury Nos.1 and 2 are grievous in nature. Certain suggestions put to this witness in the cross examination have been emphatically denied. We have carefully scrutinised the testimony of this witness and we do not find anything which would persuade this Court to reject her testimony. At this juncture, this Court deems it necessary to refer to two rulings of the Supreme Court,
(i) the first one is reported in 2003 SCC (Cri) 121 (Mohar v. State of U.P.), wherein the Supreme Court has pointed out as under:-
” The testimony of an injured witness has its own efficacy and relevancy. The fact that the witness sustained injuries on his body would show that he was present at the place of occurrence and has seen the occurrence by himself. Convincing evidence would be required to discredit an injured witness. Similarly, every discrepancy in the statement of a witness cannot be treated as fatal. A discrepancy which does not affect the prosecution case materially cannot create any infirmity.”
As far as the present case is concerned, we have not noticed any discrepancy in the testimony of the said witness.
(ii) the other ruling is the one reported in 2003 SCC (Cri) 351 (State of U.P. v. Jagdeo), wherein, the Supreme Court has pointed out thus,
” There are three eyewitnesses of the incident, that is, PW-1 Ramraj, son of the deceased Ram Lachhan, PW-2 Firangi and PW-4 Sudama, who is an injured witness and whose son Rajendra is the other deceased. The High Court doubted the evidence of these eyewitnesses merely on the ground that they had motive in supporting the prosecution case. Legally speaking, we are unable to accept this reasoning. Most of the times eyewitnesses happen to be family members or close associates because unless a crime is committed in a public place, strangers are not likely to be present at the time of occurrence. Ultimately, eyewitnesses have to be persons who have reason to be present on the scene of occurrence because they happen to be either friends or family members of the victim. The law is long settled that for the mere reason that an eyewitness can be said to be an interested witness, his/her testimony need not be rejected. For the interest which an eyewitness may have, the court can while considering his or her evidence exercise caution and give a reasonable discount, if required. But this surely cannot be reason to ignore the evidence of eyewitnesses. The High Court was clearly in error in not considering the evidence of eyewitnesses at all in the present case for the reason that they were interested witnesses. As seen earlier, one of the eyewitnesses is an injured person who received injuries in the incident itself. He was rather seriously injured. If he was not present at the time of occurrence, wherefore he received the injuries, would be an obvious question. In fact, PW-4 is also the father of the deceased Rajendra. It is common in villages that male members of a family sleep together in the open during summer reason. Sleeping near the tubewell is understandable because that would lend some coolness to the atmosphere. The High Court totally ignored the other aspect of the evidence of the eyewitnesses. That is, the evidence was consistent and the version of the witnesses tallied with each other. In our view, there was no reason to discard the evidence of the eyewitnesses. This evidence is clinching and it clearly implicates the accused persons. There is no reason to doubt the veracity of the evidence of at least PW-1 and PW-4 and that is sufficient to convict the accused persons.”
We find that the testimony of PW-2 infuses confidence and the court can safely act on it.
14. Then, we have the testimonies of other two witnesses viz., PWs-3 and 4, who came to the scene of occurrence immediately after hearing the noise. At the relevant time, they were standing near Bajanai Koil and chatting. On hearing noise, they reached the scene of occurrence and saw the accused running away with weapons. Learned counsel for the appellants/accused made two submissions to persuade this court to reject their testimonies. First one is, the names of PWs-3 and 4 do not find place in the FIR and secondly, they were not even examined at the time of inquest.
It has to be remembered that the occurrence was at about 8 P.M. on the fateful day. It is not as if, PWs-3 and 4 were standing very close to the house of the deceased. They were standing on the east of the scene of occurrence near Bajanai Koil, which is about 70 ft. away. Their claim is that they came to the scene of occurrence only after hearing the noise. PW-1, who should have been under a severe mental strain having witnessed the gruesome murder of his father, might not have noticed PWs-3 and 4, who were near the Bhajanaikoil at the time of the attack. In the facts and circumstances of this case, we do not find anything serious in PW-1 not mentioning the presence of PWs-3 and 4 in Ex.P-1.
As far as the 2nd contention is concerned, it has to be remembered that the inquest was held not in the village but in the Government Hospital, Gingee. Obviously, PWs-3 and 4, who are not relatives or close friends of the deceased, were not present at the hospital and they were examined by the police only later. It is not as if, delayed examination of witnesses under Section 161 Cr.P.C. would be fatal and there could be no rule of universal application that if there is any delay in examination of a particular witness, the prosecution version becomes suspect. The Supreme Court so held in the decision (Bodhraj v. State of J & K). In the said Ruling, the Supreme Court has pointed out thus,
” Another point which was urged was the alleged delayed examination of the witnesses. Here again, it was explained as to why there was delay. Important witnesses were examined immediately. Further statements were recorded subsequently. Reasons necessitating such examination were indicated. It was urged that the same was to rope in the accused persons. This aspect has also been considered by the trial court and the High Court. It has been recorded that there was a valid reason for the subsequent and/or delayed examination. Such conclusion has been arrived at after analysing the explanation offered. It cannot be laid down as a rule of universal application that if there is any delay in examination of a particular witness the prosecution version becomes suspect. It would depend upon several factors. If the explanation offered for the delayed examination is plausible and acceptable and the court accepts the same as plausible, there is no reason to interfere with the conclusion. ”
15. Yet another aspect of the matter which rather convinces this Court to accept the testimonies of PWs-3 and 4 is as under:-
It is claimed by PWs-3 and 4 that they came to the scene of occurrence after hearing the noise and that they saw the accused running away with weapons. If these two witnesses had obliged PWs-1 and 2 or the police, then, they would have spoken about the entire occurrence, including the overt acts by all the accused.
We have carefully perused the testimonies of PWs-3 and 4. Apart from some suggestions made to these witnesses, which have been emphatically denied, we do not find anything, which would persuade this Court to disbelieve their testimonies. Thus, we are of the view that the testimonies of PWs-3 and 4 are totally reliable and hence can be safely acted upon.
16. Thus, once we accept the testimonies of PWs-1 to 4, we have no hesitation to hold that the prosecution has brought home the guilt of the accused. Conviction and sentence imposed on A-1 to A-4 and A-6 are confirmed. So far as A-5 is concerned, he is guilty under Sections 148 and 324 IPC. and we reduce the sentence imposed on him to the period already undergone.
17. Appeal stands dismissed.