THANGARAJ Vs. STATE

JUDGEMENT

(1.) THE four appellants 1 to in this appeal are accused 1 to 4 respectively in Sessions case No. 106 of 1971 on the file of the Sessions court, Tirunelveli. THE Sessions Case arose out of the murder of one anthonipandian of Tuticorin at about 9. 15 a. m. on 29-3-1971 in the Clinic (Manohar Clinic) of one Dr. Krishnamurthi. In the course of the same transaction one Karuppuswami THEvar (examined as P. W. 1 in the case) was stabbed on his back. THE four accused along with one Thavidan alias Sudalaimani (a juvenile) were charged for the offence of rioting armed with deadly weapons, punishable under Section 148 I. P. C. Accused 1 to 4 were also charged for the offence of murder under Section 302 read with Section 149 I. P. C. and the first accused was charged for attempt to murder Karuppuswami THEvar (P. W. 1)punishable under Section 307 I. P. C. All the accused pleaded not guilty to all the charges; but the Sessions Judge found them guilty in respect of all three charges and convicted them. Accused 1 to 4 were each sentenced to imprisonment for life for the conviction under Section 302 read with Section 149 I. P. C. and the first accused was also sentenced to five years R. I. for the conviction under Section 307 I. P. C. all the sentences of imprisonment imposed were directed to run concurrently.

(2.) THE facts of the case may be briefly stated, the deceased, Anthonipandian was keeping a jutka for his use, whenever he went out, since his left leg had been cut long ago. On the day of the occurrence, had some work (some prohibition case) with his Advocate at Tuticorin, Thiru mariappaswami (P. W. 7 ). THE deceased, along with P. W. 1 went to the lawyer's place at about 8. 15 a. m. on 29-3-1961 and, after finishing his work, the deceased and P. W. 1 were returning back in the Jutka from east towards west along the North Car Street. When they were coming near the brass vessels shop (at about 9. 15 a. m.) which is situate about 30 feet east of Manohar Clinic in that street, accused 1 to 4 suddenly appeared at the scene along with the juvenile accused, Thavidan and they obstructed the jutka. It is said that the juvenile was armed with a vel-stick and the first accused was having bichuva while accused 2 to 4 each had an aruval. At that time the fourth shouted saying. Out of fear, the deceased jumped out from the front portion of the jutka while P. W. 1 jumped out from the back portion of same. Both the deceased and P. W. 1 ran towards Manohar Clinic. Accused 1 to 4 and the juvenile accused chased them inside the Clinic. P. W. 1 reached the verandah of the Clinic first and subsequently the deceased also followed P. W. 1 and entered into the western room of the verandah. When P. W. 1 reached the verandah, the first accused stabbed him on his back with the bichuva (M. O. 4 ). At that time, deceased peeped out from the doorway of the dressing-room in the Clinic. THE juvenile accused at once cut on the forehead of the deceased with the knife attached to the vel-stick, the fourth accused cut on the neck of the deceased with aruval, the third accused cut on the left hand of the deceased with aruval, the second accused cut on the chest of the deceased with aruval and the first accused cut the deceased repeatedly with the bichuva knife. P. W. 1, out of fear and panic, came out of the Clinic and ran towards east, after having received the stab injury from the first accused. THE deceased who sustained several injuries died on the spot, and after thus murdering the deceased by inflicting numerous injuries, accused 1 to 4 and the juvenile accused came out of the Clinic and disappeared. P. W. 1 who came out of the Clinic after sustaining the stab injury, engaged a rickshaw and drove towards the hospital. On the way to the hospital, P. W. 1 saw his brother P. W. 10 Lakshmanan, and conveyed to him the news of the occurrence. P. W. 10 asked P. W. 1 to rush to the hospital, and after conveying to the police on the phone the news of the occurrence received from P. W. 1, P. W. 10 joined p. W. 1 in the hospital. THE case for the prosecution is that P. W. 2 Francis, p. W. 3 Ponpandi and P. W. 4 Subbiah THEvar are the eye-witnesses who were present at the scene at the time of the occurrence and they actually witnesses the stabbing of P. W. 1 by the first accused with the bichuva and the murderous assault on the deceased by all the accused along with the juvenile inflicting numerous injuries. P. W. 16 the Sub Inspector of Police who received the news of the occurrence on the phone from P. W. 10, went to the hospital at about 10 a. m. and Exhibit P. 1 the first information report was given by P. W. 1. It was also attested by P. W. 10 the brother of P. W. 1. THE Inspector of Police (P. W. 17) was at once informed about the occurrence and the Inspector reached the scene of occurrence at 11 a. m. and conducted the inquest from 11. 30 a. m. to 1. 30 p. m. At the inquest, the inspector of Police examined P. W. 8 the Doctor of Manohar Clinic, P. W. 9 the nurse, P. W. 11 the wife of deceased and the son of the deceased. After completion of the inquest, the dead body was sent to the hospital. P. W. 6 the civil Assistant Surgeon, conducted the post-mortem examination on the dead body of Anthonipandian at 3. 50 p. m. on the same day, viz. , 29-3-1971 and Exhibit P. 3 the post-mortem certification contains the details of all the injuries and the opinion of the Doctor. THE Doctor was clearly of the opinion that the deceased died of shock and haemorrhage due to multiple injuries with special reference to the fatal injury Nos. 8 and 10 found on the neck. THE Doctor was of the view that each of the injuries Nos. 3 and 10 was necessarily fatal and that the death was due to all the injuries inflicted. He was also of the opinion that all the incised injuries could have been caused by cuts with aruval or a knife like M. O. 4 (It is unnecessary to refer at this stage, to the other steps taken by P. W. 17 in the course of the investigation ). THE Inspector of Police P. W. 17 thereafter, examined P. W. 1 at the hospital recovered from him, his bloodstained dhoti, the bloodstained shirt and the bloodstained underwear. P. W. 5 the Woman Assistant Surgeon examined P. W. 1 and gave the wound certificate (Exhibit P. 2) to the effect that P. W. 1 has sustained an incised wound, 1"x 1/2" x 1 1/2 "in back. In the wound certificate, the Doctor has stated that the injury was grievous in nature and the same could have been caused with a weapon like M. O. 4. 2, 7 & 10 were examined by P. W. 17 on the same day 29-3-1971 but later. THE other two eye-witness P. Ws. 3 and 4, though they belonged to Tuticorin and known persons were examined a long interval after the inquest; P. W. 4 was examined on 31-3-1971 and P. W. 3 was examined much later, on 6-4-1971.

(3.) THE prosecution has miserably failed to explain the delay in the examination of these crucial witnesses P. W. 4 a watchman in a school, who can easily be traced, was examined only on 31-3-1971 and P. W. 3 was examined a week later. THE prosecution gave a futile explanation that, for over a week P. W. 3 was absent and could not be examined. Except a bare statement p. W. 3 does not say why he was absent, for what purpose and to which place he had gone. Again, the Sub Inspector and the Inspector of Police have given no evidence as to step a they took in examining P. W. 3 as early as possible. Even though admittedly the police station is very near. P. Ws. 3 and 4 admittedly evinced no interest in reporting the matter to the police. P. W. 3 has admitted that he was in the hospital when the F. I. R. was given. If so, it passes one's comprehension how his name was not mentioned in the F. I. R. and how he was not examined at the inquest. THE story of P. W. 3 suddenly disappearing from the scene i. e. hospital immediately after the occurrence for about a week is worse than a fairy-tale even to narrate. When pressed in cross-examination he gave the false answer that immediately after the occurrence he went and informed p. W. 11 the wife of the deceased, about the occurrence. This answer is demonstrated to be false because P. W. 11 the wife of the deceased does not corroborate P. W. 3 further, if P. W. 11 had been told by P. W. 3 about the occurrence. P. W. 11 would at least have informed the Inspector at the inquest that the news of the murder of her husband was conveyed to her by P. W. 3 a witness alleged to have witnessed the occurrence. P. Ws. 3 and 4 have admitted that after the occurrence they never met and discussed which would not have been the normal conduct if they had both witnessed the occurrence and they had known P. W. 1 very well. THE conduct of P. Ws. 3 and 4 again is unnatural that they never made enquiries as to what happened after the occurrence P. W. 4 could not withstand the cross-examination and he admitted that he did not tell the inspector of police that the fourth accused instigated other three accused to cut the deceased which is the crux of the case of the prosecution. From the evidence of P. W. 1 P. W. 10 and P. W. 11, ample material had been brought out to show that P. Ws. 3 and 4 are obliging partisan witnesses and they have been tutored to give this evidence at the instance of the leader of the party of the prosecution ranged against the party of the accused. THE evidence of the inspector shows that there is a party faction on account of municipal elections and the party of one Mariappan on the side of the accused is ranged against the party of Ayyasamy on the side of the prosecution. THE prosecution evidence also shows that P. W. 10 is a staunch supporter of the party of Ayyasamy. THE several answers elicited in the course of the cross-examination of the Inspector of police show that the evidence given by P. Ws. 3 and 4 is false from start to finish. At page 43 of the typed papers the Inspector has admitted that P. W. 3 did not tell the Inspector that he (P. W. 3) saw P. W. 1 running out of Manohar clinic with bleeding injury and again, he did not tell the Inspector that he went inside the Clinic and saw the deceased with bleeding injuries. Again, the inspector has admitted that P. W. 4 did not tell him about his (P. W. 4's) seeing p. W. 1 running away from the Clinic with bleeding injury. THEse crucial admissions of the Inspector clearly show that P. Ws. 3 and 4 never witnessed the occurrence, for if they had witnessed they would have stated these crucial things to the Inspector. From the foregoing it is demonstrably clear that it is impossible to place any reliance upon the evidence of P. Ws. 3 and 4. It is difficult to understand how the learned Sessions Judge has so slightly slurred over the unjustifiable and unexplained long delay on the part of the investigating officer in recording the statements of material eye-witnesses during the investigation of a murder case like this. In paragraph 19 of the judgment the learned Sessions Judge refers to these aspects the infirmities in the evidence and winds up by saying" * because of the said facts, it will not be fair to disbelieve their evidence. "i am sorry to say that this is not sitting or analysing the evidence, but betrays a predetermination to accept their evidence, whatever may be the infirmities and false-hood which the defence had clearly and undoubtedly established. It is necessary to refer to the recent decision of the Supreme Court reported in Balakrushna v. State of Orissa in which the supreme Court has observed that'unjustified and unexplained long delay on the part of the investigating officer in recording the statement of a material eye-witness during the investigation of a murder case will render the evidence of such witness unreliable. In that case too the Supreme Court commented upon the fact that the Inspector of Police was not able to explain the delay in the examination of the crucial eye-witnesses and the fact the these eye-witnesses gave prevaricating unsatisfactory answers.