BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 23/12/2005 CORAM: THE HON'BLE MR.JUSTICE D.MURUGESAN AND THE HON'BLE MR.JUSTICE A.C.ARUMUGA PERUMAL ADITYAN CRIMINAL APPEAL (MD) NO.430 of 1996 1. Ravi 2. Sylus 3.Ravi 4.Subramaniam alias Aasi ... Appellants vs State represented by Inspector of Police Eranial Police Station, Kanyakumari District Crime No.10 of 1992) ... Respondent The criminal appeal is filed against the Judgment dated 19.4.1996 made in S.C.No.102/1995 on the file of the Principal Sessions Judge, Kanyakumari Division at Nagercoil. !For appellants ... Mr.G.M.Syed Fasudeen ^For respondent ... Mr.K.Chellapandian,Addl.P.P. :JUDGMENT
A.C.ARUMUGA PERUMAL ADITYAN,J
This appeal has been preferred by A1 to A4 in S.C.No.102/1995 on the file
of the Principal Sessions Judge, Kanyakumari Division at Nagercoil. There were
totally 10 accused arrayed in the charge sheet pending trial, A10 Lingam alias
Muthulingam died and the charge against him abated and A5 to A9 were acquitted
by the learned Principal Sessions Judge, Kanyakumari Division at Nagercoil and
the remaining A1 to A4 are the appellants herein.
2. The short facts of the case relevant for the purpose of deciding this
appeal are as follows:
Due to previous enmity, on 7.1.1992 at about 7.15p.m., with a common intention
of committing murder of Albert Walter, A1 to A4 had assaulted the said Albert
Walter on the neck, chest, right hand, back,
head and stomach causing instantaneous death. Against the remaining accused
charge under Section 120(B) read with 302 IPC was framed and against A1 to A4
charge under Section 302 IPC was framed by the learned Principal Sessions Judge,
after the case was committed by the Judicial Magistrate, Eranial under Section
209 Cr.P.C.
3. On the side of the prosecution, P.Ws.1 to 18 were examined. Exs P1 to
P30 and M.O.1 to M.O.9 were marked. Except P.W1,P.W.6, P.W.10, P.W.12
,P.W.13,P.W.14, P.W.16 to P.W.18 all the remaining witnesses were turned
hostile. P.Ws 1to 3 are the occurrence witnesses. P.W.1 is the brother of the
deceased Albert Walter. He is an occurrence witness. He would depose in his
evidence that on 24.12.1991 while he and his brother deceased Albert Walter were
proceeding near Neyoor Hospital, A1 to A4 had threatened his brother Albert
Walter. The motive for the occurrence was also spoken to by P.W1 to the effect
that there was an enmity prevailing over the first accused and one Sasi and that
there is a criminal case pending against the first accused Ravi on the ground
that he had assaulted Sasi with an Aruval on his leg and that his brother
Albert Walter was an accused in a murder case in which one Kumar was murdered.
According to P.W.1, the occurrence had taken place on 7.1.1992 at about
7.15p.m., near Primary School, while he and his brother Albert Walter and one
Ranjith Singh were returning from Neyoor Mission Hospital from north to south.
P.W.1 has categorically stated that A1 to A4 chased his brother Albert Walter
possessing long knifes( Vettu Kathi) each and near Sahul Hameed’s house, they
hold Albert Walter and that A1 Ravi had assaulted Albert Walter on the neck,
chin and right, side of the face with Vettu Kathi and that A2 had assaulted
Albert Walter on the right hand, on the back with Vettu Kathi and A3 had
assaulted Albert Walter with Vettu Kathi on the head thrice and A4 had
assaulted Albert Walter with Vettu Kathi on the lower abdomen causing serious
injuries, resutling his instantaneous death. He has further deposed that the
occurrence was witnessed by him, Ranjith Guna Singh and Jayachandran and that in
the place of occurrence, the light in the nearby church and street lights were
burning and that he immediately rushed to Eranial Police Station at about
8.30p.m.,and prepared ExP1 complaint. He has also identified that M.O.1 is the
shirt and M.O.2 Lungi were worn by his brother at the time of occurrence.
4. The other occurrence witness namely, Ranjith Guna Singh and Jagadish
Chandran(the name is wrongly typed as Jayachandran in P.W.13’s deposition) have
turned hostile. P.W.6 is the Observation Mahazar Witness. He would depose that
the Inspector of Police had visited the place of occurrence on 7.1.1992 at about
9.15 p.m., and prepared Ex P2 Observation Mahazar and also recovered M.O.3 blood
stained sand and M.O.4 sample sand under Ex P3 Mahazar. P.W.7, P.W.8, and P.W.9
have turned hostile. P.W.10 is the Doctor who had conducted autopsy on the
corpse of Albert Walter on the basis of ExP14 requisition on 8.1.1992 at about
12 noon. ExP15 is the Postmortem Certificate issued by P.W.10. P.W.10 has opined
that due to the injury, the deceased had sustained on the neck and head, he
would have died. The Doctor has further opined that 13 cut injuries mentioned
in Ex P15 would have been caused by Vettu Kathi and that injury Nos. 1 to 4 are
grievous in nature. P.W.11 is a hostile witness. P.W12 is the then Head
Constable of Eranial Police Station, who had handed over the corpse of Albert
Walter to P.W.10 Doctor for postmortem, who had handed over the shirt and lungi
of the deceased to the Inspector of Police after autopsy. P.W.13 is the Sub
Inspector of Police, who had registered the First Information Report on the
basis of the complaint preferred by P.W.1 as Crime No.10/92 under Section 302
IPC and Ex P.16 is the First Information Report. P.W.14 is the Photographer
who had taken M.O.6 photos of the corpse and M.O.7 are nagatives for M.O.6
positives. P.W.15 is a hostile witness. P.W.16 is the then Judicial Magistrate,
Padmanabhapuram. He has recorded a statement under Section 164 Cr.P.C. for
witnesses Iyyappan, Selvam and Kaba under Exs P.17 to P.19 respectively. P.W.17
is the Inspector of Police, who had conducted an investigation in this case.
P.W.17 would depose that on 7.1.1992 at about 21.15 hours, he visited the place
of occurrence and prepared Ex P2 Observation Mahazar. ExP20 rough sketch and
conducted inquest in the presence of Panchayatadars and Ex P21 is the inquest
report and examined the witnesses and recorded their statement and on 14.1.1992
at about 15.00 hours, he had arrested A1 to A4 and Ex P22 is an admissible
portion of the confession statement of A1, on the basis of it, he had recovered
one Aruval from south bund of Pandarakulam and the remaining three aruvals from
the said Pandarakulam Tank and that they were M.,O8 series under Ex.P.23 Mahazar
in the presence of witnesses and he has also seized M.O.9 Car and an Auto and he
has given ExP27 letter of request to the Judicial Magistrate for sending the
material objects for chemical examination and Ex P28 is the copy of letter sent
by the Judicial Magistrate and Ex P29 is the chemical analyst’s report and
ExP30 is the serologist’s report. The further investigation was taken up by
P.W.18 since P.W.17 was transferred. P.W.18 has examined the remaining witnesses
and after completing the investigation has filed charge sheet on 9.11.1994. The
incriminating circumstances under Section 313 Cr.P.C. were put to the accused
to which the accused had stated that the witnesses have deposed falsehood.
5. The accused have neither examined any witnesses on their side nor
produced any documents.
6. The learned Principal Sessions Judge, Kanyakumari Division at
Nagercoil, after going through the documentary and oral evidence, has come to
the conclusion that charge under Section 302 IPC has been proved against A1 to
A4 and convicted and sentenced to undergo life imprisonment each and acquitted
the remaining accused. Hence, the appeal by A1 to A4.
7. Now the point for determination in this appeal is whether the Judgment
of the learned Principal Sessions Judge, Kanyakumari Division at Nagercoil in
S.C.No.102/1995 dated 19.4.1996 is liable to be set aside for the reasons stated
in the memorandum of appeal.
8. Point:
The learned Counsel appearing for the appellants would contend that P.W.1
is the brother of the deceased Albert Walter and that there were enmity
prevailing over the accused and P.W.1 and would contend that the evidence of
P.W1 is an interested testimony and the evidence are not corroborated by the
other witnesses by name Ranjith Guna Singh, Jagadish Chandran. Learned counsel
in support of his contention would rely on
Ex P1 complaint and the evidence of P.W.1. The learned counsel for the
appellants would contend that P.W.1 in his evidence has stated in the first
paragraph itself that there was an enmity between the accused and his brother
Albert Walter and that A1 to A4 had criminally intimidated and threatened his
brother on 24.12.1991 while he and his brother were returning from Neyoor
Hospital and that even in ExP1 the previous enmity which was prevailing between
the accused and his brother Albert Walter has been mentioned. A careful reading
of Ex P1 and the deposition of P.W1 would go to show that there was enmity
prevailing over between A1 to A4 and Albert Walter and that it is nowhere stated
in Ex P1 nor in the deposition of P.W1 that A1 to A4 were inimical towards P.W1
or vice versa. Under such circumstances, there cannot be any motive attributed
against P.W1 to depose falsehood against A1 to A4.
9. The other contention raised by the learned counsel appearing for the
appellants is that the occurrence had taken place , according to the
prosecution, in front of one Sahul Hameed’s house. But Sahul Hameed was not
examined in this case. P.W1 in his cross examination has admitted that A1 to A4
had chased Albert Walter and assaulted him with Vettu Kathi and that he fell
down in front of Sahul Hameed’s house and that the inmates of Sahul Hameed have
seen the occurrence through door way but no one has come out of the house.
10. Learned Additional Public Prosecutor would contend that even
according to the evidence of P.W1, the said Sahul Hameed has not specifically
seen the occurrence but only the family members of Sahul Hameed had seen the
occurrence through door way and immediately, they closed the doors. As rightly
observed by the learned Principal Sessions Judge at paragraph 17 of his
Judgment , there is no valid ground projected by the learned counsel appearing
for the accused to eschew the evidence of P.W1 who is an ocular witness. The
evidence of P.W.1 has been corroborated by the evidence of P.W.10 the Doctor,
who had conducted the autopsy on the corpse of Albert Walter. The Doctor had
issued Ex P15 Postmortem Certificate wherein he has stated that he would find 13
cut injuries on the body of Albert Walter. The injuries spoken to by P.W1 to
the deceased Albert Walter at the time of occurrence inflicted by A1 to A14
tally with the injuries mentioned in Ex P.15 Postmortem Certificate and as
spoken to by P.W10, the Doctor who had conducted autopsy.
11. The learned counsel appearing for the appellants would contend that as
per the evidence of P.W.10, the Doctor, there was partially digested food
particles found in the stomach of the deceased Albert Walter. But as per P.W1’s
evidence, the deceased was with him from 4.00 p.m., on 7.1.1992 and according
to the prosecution, the occurrence had took place at 7.15p.m., on the same day.
But there is no evidence on record to show that in between 4.00 p.m., and
7.15p.m., the deceased taken any food. So the learned counsel would contend
that the occurrence would not have taken place at 7.15 p.m., as alleged by the
prosecution,but it would have been taken place between 1.00 p.m., and 2.00 p.m.,
This contention of the learned counsel appearing for the appellants will not
hold any water because P.W.1 in his cross examination has stated that his
brother Albert Walter was with him from 4.00p.m., but he has not stated that
between 4.00p.m., to 7.15 p.m., they have not taken any food . There was no
suggestion put to P.W1 to the effect that the deceased had not taken any food
between 4.00p.m., and 7.15.p.m.,. Further the evidence of P.W10 the doctor in
the cross examination would go to show that there was only 10 ml undigested food
was found in the stomach and it will take six to eight hours for digestion of
entire food and that the doctor has opined that the death would have occurred
four or five hours after the deceased had taken his food. Under such
circumstances, it cannot be said that the occurrence should have occurred
between 1.00p.m.,and 2.00 p.m., as alleged by the learned counsel appearing for
the appellants.
12. The other point raised by the learned counsel appearing for the
appellants is that there was heap of sand collected in front of the house of
Sahul Hameed and so P.W1 would not have seen the occurrence because the
occurrence had occurred in front of the house of Sahul Hameed. P.W.6 in his
cross examination has stated that there was heap of sand to the height of 4
feet present near his shop and that there was open space between the house of
Sahul Hameed and the said heap of sand and that the front door of Sahul Hameed’s
house was facing the vacant site. There is absolutely no contra evidence let
in on the side of the accused to show that there was heap of sand between P.W1
and the place of occurrence and P.W1 would not have witnessed the occurrence.
Not even a suggestion was put to P.W1 at the time of cross examination that he
would not have witnessed the occurrence due to the presence of heap of sand
between the place where P.W1 was standing and the place where the occurrence had
taken place. Under such circumstances, the contention of the learned counsel for
the appellants that P.W1 would not have witnessed the occurrence false to the
ground.
13. The other point canvassed before us by the learned counsel appearing
for the appellants is that there was no sufficient light at the place of
occurrence, since the occurrence had taken place at 7.15p.m., and that P.W.1
would not have identified the accused at the time of occurrence. But P.W1 in
his chief examination itself in clear terms has stated that there was light in
the nearby church and the street lights near the primary school and lights were
burning at the time of occurrence and that he could see the occurrence in the
light. There is no contra evidence let in on the side of the accused to show
that the occurrence had taken place in pitch dark. The presence of street
lights near the place of occurrence was shown in Ex P.20 rough sketch also. So
this contention of the learned counsel appearing for the appellants will not
hold good. In this case, M.O.8 series, four Vettu Kathis were recovered by the
Investigating Officer under Section 27 of the Evidence Act on the basis of Ex
P.4 Confession Statement of A1.
14. The decisions relied on by the learned counsel appearing for
appellants in 1997 Supreme Court Cases(crl)640 (BIR SINGH AND OTHERS -VS- STATE
OF UTTAR PRADESH), 1995 Supreme Court cases (Cri) 151(STATE OF HARYANA-vs-
INDERAJ AND ANOTHER) ,and 2001(2) Crimes 49(SC) (SOHAN AND ANOTHER-vs- STATE OF
HARYANA AND ANOTHER ) are not applicable to the present facts of the case
because in the above said decisions, it has been held that the case of the
prosecution rests on sole evidence of an interested witness who is inimical to
the accused. As we have already dealt with this point in earlier paragraph to
the effect that even though P.W1 is the brother of the deceased Albert Walter
only his brother Albert Walter was inimical towards A1 to A4, and there is no
evidence on record to show that P.W1 is also inimical towards A1 to A4. If P.W1
was inimical towards A1 to A4, A1 to A4 would have assaulted P.W1 also at
the time of occurrence. Even though, P.W2 and P.W.3 the other two occurrence
witnesses have turned hostile, P.W1, the other occurrence witness has spoken to
about the occcurrence which was corroborated by the medical evidence of P.W.10
the Doctor.
15. The learned Additional Public Prosecutor relied on the decisions
reported in 2004 Supreme Court Cases (Cri) 437 (CHAVDA JIVANJI CHELAJI AND
OTHERS-vs-STATE OF GUJARAT) and contended that the fact that an eye witness was
closely related to the deceased cannot be a ground for disbelieving his
testimony in a murder case, when the incident had taken place in the property of
the deceased himself.
16. Under such circumstances, we are of the considered view that the
conclusion arrived at by the learned Principal Sessions Judge, Kanyakumari
Division at Nagercoil in S.C.No.102/95 cannot be set aside for the reasons
stated in the grounds of appeal. The point is answered accordingly.
17. In the result, the appeal is dismissed and the Judgment in
S.C.No.102/95 on the file of the Principal Sessions Judge, Kanyakumari Division
at Nagercoil dated 19.4.1996 is hereby confirmed. A1 was released on bail as per
the order of this Court in Crl.M.P.No. 4923 of 1999 dated 19.7.1999, A2 and A4
were released on bail as per the order of this Court in Crl. M.P.No.3872 of 1998
dated 23.7.1998. A3 was released on bail as per the order of this Court in
Crl.M.P.No.2189 of 2001 dated 25.4.2001. The above orders of bail are hereby
cancelled and A1 to A4 are to be secured by the Chief Judicial Magistrate,
Kanyakumari District at Nagercoil by issuing non bailable warrant and send to
prison to undergo the unexpended portion of the sentence. The bail bonds stand
cancelled for A1 to A4.
To
1. The Principal Sessions Judge,
Kanyakumari Division at Nagercoil.
2.The Inspector of Police
Eranial Police Station
Kanyakumari District.
3. The Public Prosecutor,
Madurai Bench at Madras High Court
Madurai.
