PERIASWAMI THEVAN Vs. EMPEROR

JUDGEMENT

(1.) The two appellants in this appeal have been convicted by the Additional Sessions Judge of Coimbatore, appellant 1 of an offence punishable under Section 201, Indian Penal Code, and appellant 2 of murder. Appellant 1 received a sentence of five years rigorous imprisonment while appellant 2 was sentenced to transportation for life under Section 302, Indian Penal Code. The case arose out of the discovery of the dead body of one Ramaswami Thevan, a bachelor of about 23 years in the early morning of 8 October in the Itteri near the field belonging to witness Royappa Goundan. Ho reported the discovery of the dead body which had numerous injuries to the village Munsif who reported the matter to the police and the Magistrate. The inquest was held on Sunday night 8 October and the only eye-witness examined at the inquest was not examined as a witness for the prosecution.

(2.) The next day however during the investigation the Sub-Inspector was able 1,0 got the evidence of two eye-witnesses namely, Kanda Yannan and Muthu Kumaraswami Thevan, P.Ws. 9 and 7 respectively, according to whom appellant 2 was the person who actually inflicted the fatal injury with an aruval on the deceased with the assistance of the other appellant. A third eye-witness, viz., P.W. 10, was examined by the police on 13 October and the remaining eye-witness examined in the case, viz., P.W. 8, was examined by the police on 23 October as he was a strolling actor without any fixed abode. It would appear that several other eyewitnesses had been examined by the police during the investigation, but they were not examined for the prosecution on the ground that they had either been won over or become hostile.

(3.) The case against the appellants rests almost entirely on the evidence of these four eye- witnesses P.Ws. 7 to 10. The learned Additional Sessions Judge who heard them says that he believes their evidence in view of their demeanour in the witness-box and especially their story that it was appellant 2 who caused the fatal wound to the deceased. As regards P.W. 10 however the learned Additional Sessions Judge has failed to mention or to take into account the fact that while he now poses as an eyewitness of the actual stabbing he appears to have told the police when he was examined during their investigation that he only heard of it and did not see. This must necessarily detract very seriously from the value of his evidence, and I am not therefore prepared to attach any weight to the evidence of P.W. 10 and his evidence must really be excluded from consideration.