Madras High Court
Thomas vs The State Represented By on 11 October, 2022
Crl.A(MD)No.425 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 11.10.2022
CORAM :
THE HONOURABLE MRS. JUSTICE J.NISHA BANU
and
THE HONOURABLE MR. JUSTICE N.ANAND VENKATESH
Crl.A(MD)No.425 of 2019
Thomas .. Appellant / Sole Accused
Vs.
The State represented by,
The Inspector of Police,
Sedunganallur Police Station,
Thoothukudi District. .. Respondent/Complainant
PRAYER: Criminal Appeal filed under Section 374(2) of Criminal
Procedure Code, 1973, against the judgment and order, dated 03.07.2019
in S.C.No.400 of 2015 passed by the learned Principal Sessions Judge,
Thoothukudi.
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For Appellant : Mr.G.Thiruvarutselvan
For Respondent : Mr.A.Thiruvadi Kumar
Additional Public Prosecutor
JUDGMENT
J.NISHA BANU,J.
and
N.ANAND VENKATESH, J.
The appellant, who was punished for offences under Section
294(b), 302 and 506(ii) IPC and was sentenced to undergo Life
Imprisonment and a fine of Rs.2000/-, in default, to undergo one year
Rigorous Imprisonment for the offence under Section 302 IPC, six
months Rigorous Imprisonment and a fine of Rs.500/-, in default, to
undergo one month Simple Imprisonment for the offence under Section
506(ii) IPC and to pay a fine of Rs.500/-, in default, to undergo three
weeks Simple Imprisonment for the offence under Section 294(b) IPC,
has filed this appeal against the judgment and order of the learned
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Principal Session Judge, Thoothukudi, made in S.C.No.400 of 2015,
dated 03.07.2019.
2. The case of the prosecution is that the appellant and the
deceased are brother and sister. The deceased was living with her parents
along with her children. There was a family property which included
immovable property and cows. There was frequent quarrel between the
accused on the one hand and his father (P.W-2) on the other to partition
the properties. The deceased was also asking for a share in the property.
The further case of the prosecution is that on 14.03.2014, when the
deceased, her mother (P.W-3), her father (P.W-2) and her son (P.W-1)
were grazing the cattle at about 2.00 p.m., one Marimuthu(P.W-4) is said
to have come to the scene of occurrence and he tried to load two bulls in
his vehicle which was sold in his favour. The appellant came to the scene
of occurrence and questioned as to how the cattle can be sold without
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any partition and he shouted that it was the deceased, who was
responsible for all this and used filthy language and he is said to have
attacked the deceased indiscriminately with aruval (M.O.1) on her neck,
left side and right side jaw, left wrist and right upper arm. He also
threatened P.W-1 to P.W-3 and thereafter, he ran away from the scene of
occurrence.
3. The complaint (Ex.P1) was given by P.W-1 and it was
attested by P.W-2. Based on the same, an FIR came to be registered on
14.09.2014 at 16.00 hours. The investigation was taken up by P.W-16
and on completion of investigation, he filed a final report before the
Judicial Magistrate, Srivaigundam. After the copies were served on the
appellant, the case was committed to the file of the Court below. The
Court below framed charges against the appellant for offence under
Sections 294(b), 302 and 506(ii) IPC.
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4. The prosecution examined P.W-1 to P.W-16 and marked
Ex.P1 to Ex.P15 and material objects were identified and marked as
M.O.1 to M.O.7
5. The Court below, on completion of the trial, questioned
the appellant under Section 313(1)(b) Cr.P.C. by putting the
incriminating materials that were collected in the course of Trial. The
accused person denied the same as false.
6. The Trial Court, on considering the facts and
circumstances of the case and on appreciating the evidence available on
record, came to a conclusion that the prosecution has proved the case
beyond reasonable doubts and thereby, convicted and sentenced the
appellant in the manner mentioned supra. Aggrieved by the same, the
criminal appeal has been filed.
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7. Heard Mr.G.Thiruvarutselvan, learned counsel appearing
for the appellant and Mr.A.Thiruvadi Kumar, learned Additional Public
Prosecutor appearing for the respondent.
8. This Court has carefully considered the materials
available on record and the submissions made on either side.
9. In the present case, the important witnesses on the side of
the prosecution are P.W-1 to P.W-3, who are the eyewitnesses and who
speak about the incident. P.W-1 is the son of the deceased, P.W-2 is the
father of the deceased and P.W-3 is the mother of the deceased.
10. P.W-1 was 16 years at the time of occurrence. He states
in his evidence that on 14.09.2014 at about 2.00 p.m., he along with his
mother (deceased), grandfather (P.W-2) and grandmother (P.W-3) were
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grazing the cattle in Nesamani Mariammal Garden. At that point of time,
cattle merchants namely, P.W-4, P.W-5 and P.W-6 had come there for
purchasing cattle and they were boarding the cows in a vehicle. The
appellant had come to the scene of occurrence and was enraged and he
attacked the deceased indiscriminately with aruval(M.O.1). P.W-1 was
the complainant in this case and it was attested by his grandfather
(P.W-2). P.W-1 also identified the blouse and saree that were worn by his
mother (M.O.2 and M.O.3). He also identified the shirt and lungi that
were worn by the accused at the time of occurrence (M.O.4 and M.O.5).
11. On carefully going through the evidence of P.W-1, it can
be seen that it was in line with the complaint given by him at the earliest
point of time and in the cross-examination, his version of having seen the
incident has not been discredited. The learned counsel for the appellant
pointed out to certain discrepancies on the place of occurrence and the
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manner in which the complaint was given and in the considered view of
this Court, these discrepancies do not touch the root of the case and it
does not discredit the evidence of P.W-1.
12. P.W-2 and P.W-3 are the unfortunate parents of the
deceased and the accused. They also explained the incident in the manner
it was explained by P.W-1. The learned counsel for the appellant by
pointing out to the cross-examination of P.W-3 attempted to state that
P.W-2 and P.W-3 had gone to the pace of occurrence only after they were
informed by P.W-1. However, when a specific suggestion was made to
P.W-3 in this regard, he specifically denied the same and reiterated that
she along with her husband were present at the time of occurrence. These
two witnesses are none other than the parents of the accused and they
have no axe to grind against the accused and foist a case against him.
Their evidence is natural and cogent and the discrepancies pointed out by
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the learned counsel for the appellant was due to age factor (P.W-2 was
aged about 75 years and P.W-3 was aged about 73 years) and they
deposed after nearly two years from the date of incident.
13. It is true that P.W-3 was recalled after nearly two years
for further cross-examination and she had made certain statements
contrary to the earlier statement and which weakens the case of the
prosecution. It is not necessary for this Court to take into consideration
the subsequent cross-examination that took place after two years and the
Apex Court in Akil v. State (NCT of Delhi) reported in 2013 (3) SCC
Crl 63 has specifically dealt with a situation like this and held that a
cross-examination conducted after a long lapse of time and where the
witness goes back on the earlier statement, the same has to be
disregarded by Courts. The said judgment was followed by this Court in
Dharmaraj v. The Inspector of Police, Athanakottai Police Station,
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Pudukkottai District, reported in 2015 (2) LW (Crl) 458.
14. In view of the above, this Court holds that the evidence
of P.W-1 to P.W-3 who are the eyewitnesses sufficiently explains the
manner in which the occurrence had taken place and the involvement of
the appellant.
15. Insofar as the appreciation of ocular evidence is
concerned, the Apex Court in a recent judgment in Shahaja alias
Shahajan Ismail Mohd. Shaikh v. State of Maharashtra reported in
2022 SCC Online SC 883 has held as follows:
“ 27. The appreciation of ocular evidence is a
hard task. There is no fixed or straight-jacket formula
for appreciation of the ocular evidence. The judicially
evolved principles for appreciation of ocular evidence
in a criminal case can be enumerated as under:
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I. While appreciating the evidence of a witness, the
approach must be whether the evidence of the
witness read as a whole appears to have a ring of
truth. Once that impression is formed, it is
undoubtedly necessary for the Court to scrutinize the
evidence more particularly keeping in view the
deficiencies, drawbacks and infirmities pointed out
in the evidence as a whole and evaluate them to find
out whether it is against the general tenor of the
evidence given by the witness and whether the
earlier evaluation of the evidence is shaken as to
render it unworthy of belief.
II. If the Court before whom the witness gives
evidence had the opportunity to form the opinion
about the general tenor of evidence given by the
witness, the appellate court which had not this
benefit will have to attach due weight to the
appreciation of evidence by the trial court and
unless there are reasons weighty and formidable it
would not be proper to reject the evidence on the
ground of minor variations or infirmities in the
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matter of trivial details.
III. When eye-witness is examined at length it is quite
possible for him to make some discrepancies. But
courts should bear in mind that it is only when
discrepancies in the evidence of a witness are so
incompatible with the credibility of his version that
the court is justified in jettisoning his evidence.
IV. Minor discrepancies on trivial matters not
touching the core of the case, hyper technical
approach by taking sentences torn out of context
here or there from the evidence, attaching
importance to some technical error committed by the
investigating officer not going to the root of the
matter would not ordinarily permit rejection of the
evidence as a whole.
V. Too serious a view to be adopted on mere
variations falling in the narration of an incident
(either as between the evidence of two witnesses or
as between two statements of the same witness) is an
unrealistic approach for judicial scrutiny.
VI. By and large a witness cannot be expected to
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possess a photographic memory and to recall the
details of an incident. It is not as if a video tape is
replayed on the mental screen.
VII. Ordinarily it so happens that a witness is
overtaken by events. The witness could not have
anticipated the occurrence which so often has an
element of surprise. The mental faculties therefore
cannot be expected to be attuned to absorb the
details.
VIII. The powers of observation differ from person to
person. What one may notice, another may not. An
object or movement might emboss its image on one
person's mind whereas it might go unnoticed on the
part of another.
IX. By and large people cannot accurately recall a
conversation and reproduce the very words used by
them or heard by them. They can only recall the main
purport of the conversation. It is unrealistic to expect
a witness to be a human tape recorder.
X. In regard to exact time of an incident, or the time
duration of an occurrence, usually, people make
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their estimates by guess work on the spur of the
moment at the time of interrogation. And one cannot
expect people to make very precise or reliable
estimates in such matters. Again, it depends on the
time-sense of individuals which varies from person
to person.
XI. Ordinarily a witness cannot be expected to recall
accurately the sequence of events which take place
in rapid succession or in a short time span. A witness
is liable to get confused, or mixed up when
interrogated later on.
XII. A witness, though wholly truthful, is liable to be
overawed by the court atmosphere and the piercing
cross examination by counsel and out of nervousness
mix up facts, get confused regarding sequence of
events, or fill up details from imagination on the
spur of the moment. The subconscious mind of the
witness sometimes so operates on account of the fear
of looking foolish or being disbelieved though the
witness is giving a truthful and honest account of the
occurrence witnessed by him.
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XIII. A former statement though seemingly
inconsistent with the evidence need not necessarily
be sufficient to amount to contradiction. Unless the
former statement has the potency to discredit the
later statement, even if the later statement is at
variance with the former to some extent it would not
be helpful to contradict that witness.”
16. It is clear from the above that while assessing the
evidence of eyewitnesses, the Court must only be satisfied in the
circumstances of the case that it is possible to believe their presence to
have witnessed the incident and there is nothing inherently improbable or
unreliable in their evidence. Both these tests have been satisfied through
the evidence of P.W-1 to P.W-3.
17. The FIR was registered by P.W-11 and the same was also
sent within a reasonable time to the concerned Judicial Magistrate Court
at Srivaikundam. Hence, there is no question of any deliberation before
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the complaint was lodged against the appellant.
18. Insofar as the injuries sustained by the deceased, the
same has been spoken by P.W-14 through whom the postmortem
certificate(Ex.P9) has been marked. The injuries as recorded in the
postmortem certificate are extracted hereunder:
“1. An oblique gapping heavy cut injury of size
8 x 1.5 x bone deep seen in left side of forehead. It
cuts underlying scalp and left side of frontal bone.
2.A horizontal gapping cut injury of size 5 x 1
cm x bone deep seen in left parietal region. It cuts
underlying scalp.
3.A horizontal gapping heavy cut injury of size
14 x 3 x 1.5 cm seen in right side of chin. It cuts
underlying soft tissues and right side of lower part of
mandible bone.
4.An oblique gapping heavy cut injury of size
16 x 4 x 5 cm seen in left side of upper part of neck.
It cuts underlying soft tissues, vessels, nerves, 4th
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cervical vertebra and spinal cord.
5. A horizontal cut injury of size 4 x 1 x 2 cm
seen in lower part of back of neck. It cuts underlying
soft tissues.
6. A horizontal cut injury of size 2 x 0.5 x 1 cm
seen in back of upper part of chest. It lies 5 cm below
injury No.4.
7. A scratch abrasion of length 7 cm seen in
back of left side of chest and 3 cm length seen in
back of left scapula.
8.A scratch abrasion of length 6 cm seen in
back of right side of chest.
9. A flapping oblique gapping cut injury of size
7x2x 4cm seen in back of middle of left fore arm. It
cuts underlying soft tissues.
10.An oblique gapping heavy cut injury of size
12 x 2 x l cm seen in inner aspect of left hand. It
extends from base of left 1st thumb to left 3rd thumb.
It cuts underlying soft issues, vessels, nerves and
phalanx of left thumb and left index finger. Left
index finger found hanging with a tag of skin.
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11. A flapping oblique gapping heavy cut
injury of size 9 x 3 x 5 cm seen in outer aspect of
right upper arm. It cuts underlying soft tissues.”
19. P.W-14 has given a final opinion as to the cause of death
to the effect that the deceased died due to shock and hemorrhage due to
heavy cut injuries to the left side of the neck and injury No.4 is fatal in
nature. The evidence of P.W-1 to P.W-3 wherein they describe the
manner in which the deceased was attacked by the accused with M.O.1
aruval, corresponds with the injuries as recorded in the postmortem
certificate.
20. On carefully going through the evidence of the
investigation officer P.W-16, it is seen that he had visited the scene of
occurrence on 14.09.2014 at about 17.30 hours and prepared the
observation mahazar in the presence of the witnesses. He has also seized
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the bloodstained earth and ordinary earth (M.O.6 and M.O.7). The
observation mahazar was marked as Ex.P2 and the rough sketch was
marked as Ex.P14 and the mahazar witness was also examined as P.W-8.
The evidence of P.W-16 also satisfies this Court on the arrest and
recovery from the accused person in the presence of witnesses.
21. It is also seen from the scientific evidence that the
bloodstained clothes recovered form the accused matched the blood
group of the deceased and the same is clear from the serology report
marked as Ex.P13. P.W-15, who was examined in this regard also speaks
about the requisition received and the test conducted and report
submitted to the Court.
22. It is true that the independent witnesses, namely, P.W-4
to P.W-6 did not support the case of the prosecution and they turned
hostile. These witnesses turning hostile does not in any way affect the
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eyewitness version given by P.W-1 to P.W-3 just because they are related
witnesses. In the present case, they are not only related to the deceased
but also to the appellant.
23. In the considered view of this Court, the Court below
has properly appreciated the materials available on record and rendered
cogent findings while convicting and sentencing the appellant. This
Court does not find any ground to interfere with the same.
24. In the result,
(i) This Criminal Appeal stands dismissed.
(ii) The conviction and sentence passed by the learned
Principal Sessions Judge, Thoothukudi, against the
appellant/sole accused in S.C.No.400 of 2015 dated
03.07.2019, is hereby confirmed.
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(iii) This Court had suspended the sentence and enlarged
the appellant on bail by order dated 30.12.2020 and the
appellant is, therefore, directed to immediately surrender
before the trial Court on or before 31.10.2022 to undergo the
remaining period of sentence, failing which, the trial Court
shall take steps to secure him for undergoing the sentence.
(iv) The period of sentence already undergone by the
accused/appellant is ordered to be set off under Section 428
Cr.P.C.
[J.N.B, J.] & [N.A.V., J.]
11.10.2022
Index : Yes/No
Internet : Yes/No
PJL
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J.NISHA BANU, J
AND
N.ANAND VENKATESH, J
PJL
To
1.The Principal Sessions Judge,
Thoothukudi.
2. The Inspector of Police,
Sedunganallur Police Station,
Thoothukudi District.
3.The Additional Public Prosecutor
Madurai Bench of Madras High Court,
Madurai.
Judgment made in
Crl.A.(MD)No.425 of 2019
11.10.2022
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