VENTHIMUTHU Vs. STATE

JUDGEMENT

(1.) ACCUSED Nos.1 and 2 in Sessions Case No.51/1995 on the file of the learned Additional Sessions Judge cum Chief Judicial Magistrate, Tuticorin are the appellants. They challenge the judgment of the Sessions Judge, dated 13.07.1998, convicting and sentencing them to undergo life imprisonment for the offence under Section 302 IPC.

(2.) THE prosecution case is as follows:

(3.) (a).The learned senior counsel appearing for the appellants would submit that the prosecution has suppressed the genesis of the occurrence and therefore their case cannot be accepted. Both in Exs.P-16 and P-22, the statements recorded from D-2 and A-2, the motive for the strained feelings between the two families is identical, which relates to the proposal for alliance between A-1 and Amutha, the daughter of D-2. According to Ex.P-16, it is because the family of the deceased refused to agree to the alliance on the ground that the accused family is a drunkard family, there was enmity between the family of the accused and the family of the deceased. 5.(b). According to both Exs.P-16 and P-22, there was an incident at 7.00 p.m. on 25.08.1992 and based on them two cases came to be registered in Crime Nos.69/1992 and 70/1992. Learned senior counsel submitted that when this is the case, the investigation officer should have given reasons why he has chosen to prefer the case of the prosecution and not the case of the accused. He has also not filed the final report in the case registered on the complaint of A-2. the non-filing of the referred report in that case also raises a doubt as to the prosecution case. In particular, the learned senior counsel pointed out the evidence of P.W.16, the investigation officer, where he has stated that he had not recorded the statement of the doctor who had treated A-2 and he had not obtained copy of the Accident Register before filing referral report in Crime No.70/1992. P.W.16 has admitted that statements were recorded from the wife of A-2 and his sister Anthomiammal. These statements and other records relating to Crime No.70/1992 were forwarded to the court but they were not now found in the file. He has also admitted that he did not arrest P.W.2 with regard to Crime No.70/1992 nor had he recovered any weapon. 5.(c).The learned senior counsel pointed out that P.W.10 is alleged to have played an important role in the sense that he accompanied P.Ws.1 and 2 and D-1 and D-2 in the van on the way to the hospital and his name is found in Exs.P-1 and P-2, the Accident Registers of D-1 and D-2, but P.W.16 the investigation officer had not recorded any statement from him. Learned senior counsel also pointed out that it is very curious that though P.Ws.1 and 2 had accompanied their mother and uncle, they had not attested in Ex.P-16 statement given by D-2, which was recorded by P.W.12 Constable and it was only P.W.10 who had attested it. 5.(d).Learned senior counsel pointed out that the only weapon that has been produced before the court, as a material object, is the knife and and the wounds found on A-2 could not have been caused by a knife. In Ex.P-22, the statement recorded from A-2, there is clear reference to a sword and in those circumstances the case propounded by P.W.16 that it was a self-inflicted one, which is nobody's case, cannot be accepted since M.O.1 knife could not have caused those injuries. 5.(e).The learned senior counsel also submitted that as regards the scene of occurrence, there is discrepancy between the evidence of P.Ws.1 and 2 and Ex.P-16. According to P.Ws.1 and 2, accused did not enter the house to attack the deceased and they stabbed the deceased only outside. P.W.16 Investigation Officer has recovered M.Os.2 and 3 from the road and it is the road which is shown as the scene of occurrence in the rough sketch Ex.P-33. On the other hand, Ex.P-16 would show that when D-2 and her brother D-1, P.W.1 and Thommai, the wife of D-1, were inside the house, A-1 and A-2 came and attacked. 5.(f).Learned senior counsel also submitted that while according to P.W.1, A-1 had raised a quarrel in P.W.2's house at about 7.00 p.m. before the time of occurrence at 7.30 p.m., Ex.P-22 would show that at 7.00 p.m. when A-2 was going towards the house where P.W.2 was living, P.W.3, the wife of P.W.2, abused him and on hearing that A-1 has abused P.W.2 and returned home and thereafter D-1 and D-2 came to the house of A-1 and there was a wordy quarrel at which time P.W.2 took the weapon in his hand and cut A-2 on his head and he inflicted one more injury. Learned senior counsel submitted that the total suppression of the statements recorded and investigation conducted in Crime No.70/1992 would show that the prosecution has not come out with the actual genesis of the case. 5.(g).Learned senior counsel also submitted that there was unexplained delay in forwarding the express FIR to the Court. According to P.W.11, express FIR was received by him at 7.30 a.m. on 26.08.1992 and he handed it over in the court at 1.00 p.m. In the cross-examination of P.W.11, the FIR constable, it is admitted that there is bus facility for every half-an-hour from Puthiyamputhur Police Station to Tuticorin. He has denied the suggestion that the express FIR was handed over to him only at 12.00 p.m. on 26.08.1992. 5.(h).Learned senior counsel also pointed out that while in Ex.P-16 there is reference to only one injury on A-2 which happened because P.W.2 bent down when A-1 tried to stab him with knife, in Ex.P-4 wound certificate issued to A-2 the Doctor, who treated him, has noted the following three injuries. "1. An incised wound 12 cms x 2 cms exposing underlying bone in right temporal region. 2. An incised wound 15 cms x 2 cms exposing underlying bone just above injury No.1. 3. Complains pain in left upper limb." According to the doctor, injury Nos.1 and 2 are grievous in nature. These injuries could not have been inflicted on A-2 either in the manner as stated in Ex.P-16 or by P.Ws.1 and 2. 5.(i).Learned senior counsel also submitted that no doctor has certified the mental condition of D-2 when Ex.P-16 was recorded. It is the evidence of P.W.4, the doctor, that when D-2 was admitted she was in a critical condition and yet though there were 10 days between the date of death of D-2 and the date on which D-2 was admitted, there was no attempt made to record her dying declaration. 5.(i).Learned senior counsel referred to the following decisions. (1) In 1989 L.W. Crl. 415 (Krishnamoorthi v. State). (2) 2005 M.L.J.(Crl.) 191 - Moorthy and another vs. State of Tamil Nadu. (3) 1976 SCC (cri) 671 - (Lakshmi Singh and others vs. State of Bihar.