RAJAN Vs. STATE

JUDGEMENT

(1.) THE appellant herein along with his father second accused were tried as first accused and second accused respectively in S.C.No. 1 of 1995 by the learned Principal Sessions Judge, Tuticorin for the offence punishable under Sec. 302, I.P.C. committed by the first accused and for the offences punishable under Secs. 324 and 302 read with 34, I.P.C. committed by the second accused at about 1.30 p.m. on 31.10.1992 at Palayakayal Village within the jurisdiction of the Police Station at Eral, Tuticorin District. While the first accused was found guilty of the offence punishable under Sec. 302, I.P.C., convicted for the same and sentenced to undergo imprisonment for life, the second accused was found not guilty of the charges framed against him and therefore, acquitted, by judgment dated 27.1.1998 made in S.C.No. 1 of 1995 by the learned Principal Sessions Judge, Tuticorin, aggrieved by which, the first accused has preferred the above appeal.

(2.) FOR the sake of convenience the parties are described as per their rank in the Sessions Case. 3.1. The prosecution case is that: The first accused, who was already married, eloped with Antoniammal, who is the younger sister of deceased Mathiazhagan, and was living with her in a hut at Palayakayal Village, along with his first wife and sister by name Vijaya, which is very close to that of the deceased Mathiazhagan, who was living with his another sister Tamilarasi (P.W.1), his mother Innasiammal (P.W.3), elder brother Sekar (P.W.8) and his wife Pitchakani (P.W.2). These facts are not in dispute. 3.2.On 31.10.1992, at about 1.30 P.M., there was a quarrel between P.W.3 and Vijaya (sister of the first accused) at the street pipe, which is located near the house of the first accused. On hearing the quarrel, P.W.1 and her brother Mathiazhagan went near the street pipe. At that time, the first accused and the second accused came to the street pipe armed with pitchuva knife and aruval respectively. The second accused cut P.W.1 with an aruval, and as a result, P.W.1 got an injury on her right hand little finger. When Mathiazhagan came to the rescue of P.W.1, the first accused stabbed Mathiazhagan from his back with pitchuva knife. Mathiazhagan turned towards the first accused. In the meanwhile, the first accused again stabbed Mathiazhagan with the pitchuva knife on his left chest. Mathiazhagan tried to snatch the pitchuva knife from the first accused and the same was resisted by the first accused but got injured on his right thumb. Having snatched the pitchuva knife from the first accused, Mathiazhagan stabbed the first accused on his chest. At that time, the second accused tried to cut Mathiazhagan on his leg with the aruval but the cut got slipped, and fell on the leg of the first accused. After the scuffle, Mathiazhagan fell down unconsciously. 3.3.P.W.1 to P.W.3 took the injured Mathiazhagan to the road side and boarded the Kattabomman Transport Corporation bus to take him to the Government Hospital, Tuticorin. But, since the condition of Mathiazhagan became serious on the way, he was shown to a private medical practitioner, Dr. Dharmaraj (P.W.11), at Athimarapatti Vilakku, who declared Mathiazhagan dead. 3.4.The injured first accused and P.W.1 were also taken to the Government Hospital, Tuticorin in the same bus. Dr. Jayakumar (P.W.5) admitted and examined the first accused and issued the accident register marked as Ex.P-5. P.W.1, who got injured during the scuffle between the first accused and Mathiazhagan, also got admitted and examined by Dr. Jayakumar (P.W.5), who issued the accident register marked as Ex.P-4. 3.5.After Mathiazhagan was declared dead, P.W.1 and P.W.8 went to Eral Police Station, gave a statement marked as Ex.P-1 signed by P.W.1 and attested by P.W.8. 3.6.Based on the statement marked as Ex.P-1, P.W.10, the Sub Inspector of Police, Eral Police Station, registered the F.I.R., marked as Ex.P-.16 in Crime No. 707 of 1992 against the first accused for the offence punishable under Sec. 302, I.P.C. and against the second accused for the offences punishable under Secs. 324 and 302 read with 34, I.P.C. 3.7.On a requisition from the Inspector of Police, marked as Ex.P- 2, Dr. Ramasubramanian, Civil Assistant Surgeon, Government Hospital, Tuticorin (P.W.4) conducted post mortem on the body of the deceased Mathiazhagan, and issued the post mortem certificate marked as Ex.P-3. 3.8.Based on the F.I.R. marked as Ex.P-16, the Inspector of Police, Tuticorin Central Police Station, who was also in charge of the Eral Police Station at that time, viz., the investigating officer (P.W.15), visited the scene of occurrence at 1700 H on 31.10.1992 and prepared an observation mahazar marked as Ex.P-10 from the place where the dead body was lying and also prepared a rough sketch of the scene of occurrence, marked as Ex.P-23, in the presence of the Village Administrative Officer (P.W.7) and his Thalayari; and also recovered pitchuva knife (M.O. 1), blood stained portion of tar road (M.O. 3 series), sample tar road portion (M.O. 4 series), one blood stained white towel (M.O. 6), and one blood stained white dhothi (M.O. 7) from "the scene of occurrence. 3.9.On 1.11.1992, P.W.15 went to the Government Hospital, Tuticorin, examined the first accused and recorded his statement and on the same day, he also examined Dr. Dharmaraj (P.W.11), Pandaram, Village Administrative Officer (P.W.7) and his Thalaiyari. 3.10.In the meanwhile, since the regular Inspector of Police, Eral Police Station, viz., P.W.16 returned to duty, P.W.15 handed over the further investigation to P.W.16. 3.11.On 9.11.1992, on an application by P.W.16 during his further investigation into the case, the Judicial Magistrate, Srivaikuntam, remanded the first accused for fifteen days and also ordered for security to the first accused in the hospital. 3.12.On 10.11.1992, P.W.16 arrested the second accused at Palayakayal bus stop in the presence of the Village Administrative Officer, Koilraj (P.W.9) and his Thalaiyari. On a voluntary confession by the second accused, P.W.16 recovered a palaai aruval (M.O. 2). 3.15.P.W.16 sent the case properties for chemical analysis, obtained the Chemical Examiner's report, marked as Ex.P-8 and the Serologist's report, marked as Ex.P-9. 3.16.Based on the investigation, a final report was prepared on 5.6.1993 and the accused were tried by the learned Principal Sessions Judge, Tuticorin. 3.17.After the examination of the prosecution witnesses, accused 1 and 2 were questioned under Sec. 313, Cr.P.C. The first accused stated that it was only the deceased who came with a knife and stabbed the first accused, and during the course of scuffle by rolling, both the first accused and the deceased got injured. The second accused stated that he did not know anything about the occurrence, as he was at Sarvodaya Office at the time of the occurrence. 4. On appraisal of the evidences on record, the trial Court found the first accused guilty of the charge for the offence punishable under Sec. 302, I.P.C., but acquitted the second accused. Hence, the above appeal. 5.1. Mr.G.R. Edmund, learned counsel appearing for the first accused, took us through the evidence available on record as well as the judgment of the trial Judge and contends that: (a) the trial Court, having disbelieved the evidence of P.Ws. 1, 2 and 3, in view of the contradictions in their evidence and acquitted the second accused, ought to have applied the same yardstick while dealing with the charge framed against the first accused and held that the prosecution failed to establish the charge framed against the first accused beyond reasonable doubts, and acquitted the first accused as well; (b) the non-examination of independent witnesses, viz., Patturaj and Johnson, also renders the prosecution case unbelievable. The false implication of the second accused by P.Ws. 1, 2 and 3, as found by the trial Court, renders their evidence doubtful; (c) the non-explanation of the injuries sustained by the first accused at or about the time of occurrence, throws a serious doubt on the evidence of P.Ws. 1, 2 and 3, as the same are not trust-worthy; (d) the failure on the part of the prosecution to register the complaint lodged by the first accused and to investigate into the matter to find the real aggressor to the scuffle, is a serious lapse on the investigation made by the prosecution, which goes to the root of the issue to doubt the very genesis or origin of the occurrence, and therefore, vitiates the conviction; and (e) in any event, the prosecution ought to have accepted the plea of private defence made by the first accused in his statement made under Sec. 313, Cr.P.C. 5.2.Mr.G.R. Edmund, further contends that the occurrence, having taken place in a broad day light between 1.30 p.m. and 2.00 p.m. on 31.10.1992 in the main road near the public tap by the side of the bunk shop belonging to Patturaj, where Patturaj and Johnson, were standing along with the other public, and these facts were expressly mentioned in the statement made by P.W.1, viz., Ex.P-1, the non-examination of any of such outsiders as witnesses, particularly Patturaj and Johnson, from whom statements were said to have been obtained by the Investigating Officer, renders the prosecution case unbelievable, as the sole testimony of P.Ws. 1, 2 and 3, who are interested witnesses, could not be relied upon for the safe conviction of the first accused. 5.3.To buttress this argument, Mr.G.R. Edmund brought to our notice that P.Ws. 1, 2 and 3 are interested witnesses for two reasons, viz., (i) they are related to the deceased; and (ii) they are inimical to the accused, who had eloped with Antoniammal, who is nonetheless the sister of P.W.1, sister in law of P.W.2 and daughter of P.W.3. 6. In answer to the contentions made on behalf of the first accused/appellant, Mr.A. Navaneethakrishnan, learned Additional Public Prosecutor contends that: (a) the trial Court rightly convicted the first accused based on the ocular evidence of P.Ws. 1, 2 and 3; (b) the non-examination of any outsider would not be, in any way, fatal to the prosecution case, which is fully supported by the ocular evidence of P.Ws. 1, 2 and 3. Merely because of the fact that P.Ws. 1, 2 and 3 are closely related to the deceased and that there was a strained relationship between the family of the deceased and the accused, the evidence of the eye-witnesses would not lose its value and trust-worthiness, as they corroborate with the other material evidence on record, such as the evidence of the mahazar witness - P.W.7, the medical evidence of P.W.4 read with Ex.P-3 as well as the evidence of the Investigating Officers -P.W.15 and P.W.16; (c) even though P.Ws. 1, 2 and 3 are closely related, the mere contradictions, inconsistencies, by themselves, would not, render their evidence unreliable; (d) the non-registration of the complaint lodged by the first accused, would not, by itself, lead to the conclusion that the prosecution case must be discarded, as it is clear from the medical evidence that the injuries found on the accused are superficial, but not as grievous as the injuries caused by the accused on the deceased, which resulted in the death of the deceased. The failure to register the complaint by the Investigating Officer, therefore, shall not assume any significance to suggest any serious lapse in the investigation of the case; and (e) in any event, the plea of private defence could not be based on surmise and speculation; nor the same could surpass the ocular evidence supported by the medical evidence, based on which, the first accused was held guilty of the offence punishable under Sec. 302, I.P.C. 7. We have given our careful consideration to the submissions of both sides in the light of the materials available on record. 8.1. The conviction of the first accused rests on the ocular evidence of P.Ws. 1, 2 and 3. It is true, P.Ws. 1, 2 and 3 are closely related to the deceased and there was strained and inimical relationship between the family members of the accused on the one hand and that of the deceased on the other. Therefore, the testimony of P.Ws. 1, 2 and 3, in our considered opinion, needs careful scrutiny. 8.2.According to P.W.1, it was the second accused who first attacked P.W.1 with an aruval, which caused an injury on her little finger. The medical evidence of P.W.5 read with Ex.P-4 ensures the injury on the little finger of P.W.1. 8.2.P.W.1 deposed that when her brother (deceased Mathiazhagan) came to her rescue, the first accused stabbed the deceased firstly on his back, thereafter on his chest and in the meanwhile, the deceased attempted to snatch the knife from the first accused and during the process first accused sustained an injury on his thumb. But, there is no corresponding injury on the thumb of the first accused as per the medical evidence of P.W.5 read with Ex.P-5, as the first accused had sustained only an injury on his chest, namely incised bleeding wound on his right chest 6th space transverse 2 1/2"1/2 c.m. muscle deep. 8.2.3.P.W.1 further deposed that the first accused snatched the knife from her brother (deceased Mathiazhagan) and stabbed again on the chest of the deceased, and by then, the second accused attempted to cut the leg of the deceased with an aruval, but the same slipped and fell on the leg of the first accused. Again, there was no such corresponding injury on the leg of the first accused, as per the medical evidence of P.W.5 read with Ex.P-5. 8.2.4.In the cross-examination, P.W.1 identified the knife (M.O. 1), which was said to have been used for the commission of the offence. According to the recovery Mahazar witness P.W.7, M.O. 1 was recovered by the Investigating Officer (P.W.15) from the place of occurrence in his presence under the recovery mahazar -Ex.P-13 and the length of the said knife (M.O. 1) was 10 inches, half of which contained blood stains. But, as per the report of the Chemical Examiner, FORensic Laboratory, marked as Ex.P-8, there was no blood stain on the knife (M.O. 1). 8.3.1.P.W.2 is the sister-in-law of the deceased who also deposed that it was second accused, who started the attack with an aruval on P.W.1, on account of which P.W.1 sustained an injury on her little finger. Even though P.W.2 also would state that when the second accused attacked the deceased on his leg, the same slipped and fell on the leg of the first accused, there is no such corresponding injury on the leg of the first accused as per the medical evidence of P.W.5 read with Ex.P-5, as observed earlier. 8.3.2.Even though, in the cross-examination of P.W.2, she would state that the first accused snatched the knife from the hands of the deceased, there is no proper explanation from P.W.2 as to how the deceased came to be in possession of the knife. However, P.W.2 confirmed that the first accused attempted to snatch the knife from the hands of the deceased and both of them scuffled, which would prove that the deceased was in possession of the knife. 8.4.1.P.W.3, the mother of the deceased, also states that the second accused alone gave the first cut with his aruval on P.W.1, as a result of which, P.W.1 sustained an injury on the little finger. 8.4.2.P.W.3 admitted that Johnson accompanied P.Ws. 1 to 3 while taking the deceased to the hospital, which corroborates with the evidence of P.W.15 that Patturaj and Johnson were eyewitnesses. 8.5.Accordingly, there were contradictions and inconsistencies pointed out by the defence as hereunder: (i)" the contradictions with reference to the presence of outsiders, for example, Patturaj and Johnson, who were not examined as independent witnesses, in spite of obtaining their statements, as the occurrence had taken place in the broad day light in a public place, viz., near the street pipe on the main road and witnessed by the public; (ii)"the contradictions with reference to the overt act said to have been committed by the first and second accused on the deceased as well as P.W.1; (iii)"the contradictions with reference to the false implication of the second accused in the alleged crime, which creates a serious doubt in the evidence of the eye witnesses, namely, P.Ws. 1, 2 and 3; (iv)"the inconsistency with reference to the injuries said to have been caused on the first accused, viz., on his right thumb and leg, as there was no such corresponding injury on the first accused as per the evidence of P.W.5 read with Ex.P-5; and (v)"the contradictions with reference to the blood stained pitchuva knife - M.O. 1 used for the commission of the crime was seized by P.W.15 in the presence of P.W.7, as no such blood stain was found on the said knife, as per the chemical examiner's report marked as Ex.P-8. 8.6.Of course, it is a trite law that mere contradictions, inconsistencies, exaggerations and embellishments, much less the minute variations in narrating the incidents, by themselves would not militate the trust-worthiness of the narration made by them with respect to the incident, as some difference in the mode of narrating the incident is bound to arise when an incident is narrated to different persons on different occasions. 8.7.However, in our considered opinion, the exaggeration and embellishment in the evidence of P.Ws. 1, 2 and 3 for having chosen to rope in the second accused, falsely implicating him in the crime, whose very presence in the scene of occurrence was rightly disbelieved by the trial Court, renders their evidence as abnormal. 8.8.From the above critical analysis, it is clear that P.W.1 is an injured witness. She is the elder sister of the deceased Mathiazhagan. The presence of injuries on P.W.1, as supported by the medical evidence namely P.W.5 read with Ex.P-4 ensures her presence on the spot at the time of the occurrence. Hence, we are obliged to attach sanctity to the testimony of her witness. However, the false implication of the second accused, who is found to be an innocent person by the trial Court, which remains unchallenged, creates a serious doubt in the testimony of P.Ws. 1, 2 and 3, even though the injured witness will never leave the real culprit. 8.9.1.Of course, the occurrence had taken place in broad day light, near the public tap on the main road, which is located near a bunk shop where outside public were very much present and statements were said to have been obtained by the Investigating Officer from some of them, viz., Johnson, who could be natural witness. Even though it is not clear as to why the prosecution failed to examine any of such outsiders as independent witnesses, we do not see any lapse on the part of the prosecution in that regard at all, as it is the choice of the prosecution to examine the witnesses who unfold the story of the prosecution. 8.9.2.The Apex Court in Ambika Prasad v. State (Delhi Admit.) (2000)2 S.C.C. 646 while holding that non-examination of independent witnesses by itself cannot be a ground for rejecting the evidence of witnesses who were injured in the occurrence held as follows:

(3.) INCISED penetrating wound 4 - 1.5 cm " 0.5 cm over the left hemidiaphragm. (Corresponding to wound 6 vide supra).