Madras High Court
Pitchu Mani @ Pitchai Mani vs State Represented By on 10 September, 2024
Author: C.V.Karthikeyan
Bench: C.V.Karthikeyan, J.Sathya Narayana Prasad
Crl.A.(MD)No.218 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON: 21.08.2024
PRONOUNCED ON : 10.09.2024
CORAM
THE HON'BLE MR.JUSTICE C.V.KARTHIKEYAN
AND
THE HON'BLE MR.JUSTICE J.SATHYA NARAYANA PRASAD
Crl.A(MD)No.218 of 2020
1.Pitchu Mani @ Pitchai Mani
2.Esakkimuthu ... Appellants
vs
State represented by
The Inspector of Police,
Munneerpallam Police Station,
Tirunelveli District. ...Respondent
PRAYER: Criminal Appeal filed under Section 374(2) of the Criminal
Procedure Code, to call for the records pertaining to the judgment delivered
by the learned I Additional District Judge, Tirunelveli in S.C.No.656 of
2016 vide judgment, dated 04.03.2020 and to set aside the same and
consequently, acquit the appellants from all the charges mentioned in the
said case.
For Appellants : Mr.R.Anand
For Respondent : Mr.A.Thiruvadi Kumar
Additional Public Prosecutor
*****
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Crl.A.(MD)No.218 of 2020
JUDGMENT
(Judgment of this Court was delivered by C.V.KARTHIKEYAN, J.)
The Criminal Appeal had been filed by Pitchu Mani @ Pitchai Mani
A1 and Esakkimuthu, A2 against the judgment dated 04.03.2020, in S.C.No.
656 of 2016 passed by the I Additional District Sessions Court, Tirunelveli,
by which judgment, A1 had been convicted for offence punishable under
Section 302 of IPC and sentenced to undergo life imprisonment and to pay a
fine of Rs.5,000/- in default to undergo two years simple imprisonment and
A2 had been convicted for offences punishable under Section 302 r/w 34
IPC and sentenced to undergo life imprisonment and to pay a fine of Rs.
5,000/- in default to undergo two years simple imprisonment.
2.The case of the prosecution is that PW-1, Moses Livingston, son of
the deceased, Edison Suvisesha Muthu was a resident of South Omanallur
Village in Tirunelveli District. The deceased knew Balasubramanian, father
of A1. In July 2011, the deceased Edison Suvisesha Muthu was playing
cards. This was informed to the jurisdictional Police by Balasubramanian.
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Aggrieved over the same, Edison Suvisesha Muthu had attacked
Balasubramanian causing injuries in his left hand. This created an enmity
between the family of Balasubramanian and the family of Edison Suvisesha
Muthu. It is stated that A1 and A2 had conspired to cause the death of
Edison Suvisesha Muthu.
3.It is further stated that Edison Suvisesha Muthu was in the habit of
taking liquor. There were also several criminal cases registered against him.
He was also detained under Tamil Nadu Act 14 of 1982. He was released
after serving the entire period of detention just about two months prior to
the date of the incident leading to his death.
4.It is the further case of the prosecution that on 14.04.2013 at around
12.00 noon, A2, Estakkimuthu had gone over to the house of Edison
Suvisesha Muthu. His son and wife, PW-1 and PW-2 were also there. A2
called him to come with him to consume alcohol in a TASMAC Shop.
Fearing the worst, PW-1 and his mother, Tmt.Shanthi, PW-2, went in a
bicycle to Ponnankudi TASMAC shop. They saw Edison Suvisesha Muthu,
who was drinking and called him out. At that time, A2, Esakkimuthu is said
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to have given a signal towards the north entrance of the TASMAC shop and
bar and A1 Pitchu Mani @ Pitchai Mani came near Edison Suvisesha
Muthu and attacked him indiscriminately including severing three fingers
on his right hand. Edison Suvisesha Muthu collapsed to the ground dead.
The prosecution had thus charged A1 for offence under Section 302 IPC
and A2 for offence under Section 302 IPC r/w 34 IPC.
5.The learned Judicial Magistrate-V, Tirunelveli had committed the
case, on filing of the final report, to the Court of Session. Documents under
Section 207 of Cr.P.C., had been given free of cost to the accused.
Thereafter, the Principal Sessions Court at Tirunelveli had made over the
case for trial to the I Additional District and Sessions Court at Tirunelveli.
Charges were accordingly framed. The accused denied the charges. The
prosecution was then called upon to prove the charges in manner known to
law. The prosecution examined PW-1 to PW-22 and also marked Ex-P1 to
Ex-P24. They also produced material objects, MO-1 to MO-8.
6.On conclusion of recording evidence of the prosecution witnesses,
the accused were questioned under Section 313 Cr.P.C. Their statements
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were recorded. The accused did not examine any witnesses or produce any
document. Thereafter, by judgment dated 04.03.2020, the I Additional
District Sessions Court, Tirunelveli, had convicted A1 for offence under
Section 302 of IPC and sentenced him to undergo life imprisonment and to
pay a fine of Rs.5,000/- in default to undergo two years simple
imprisonment and convicted A2 for offence under Section 302 IPC r/w 34
IPC and sentenced him to undergo life imprisonment and to pay a fine of
Rs.5,000/- in default to undergo two years simple imprisonment.
Questioning that conviction and sentence, the present Criminal Appeal has
been filed.
7.Heard arguments advanced by Mr.R.Anand, learned Counsel
appearing for the appellants and Mr.A.Thiruvadi Kumar, learned Additional
Public Prosecutor appearing for the respondent.
8.Mr.R.Anand, learned Counsel appearing for the appellants took the
Court through the prosecution case and the evidence adduced on behalf of
the prosecution. He stated that about two years prior to the incident, the
deceased is alleged to have violently attacked the father of A1. He also
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stated that the deceased had several criminal cases registered against him.
He was also addicted to liquor. He also stated that the deceased, owing to
the number of cases registered against him in and around Tirunelveli, had
been detained as a goonda under Tamil Nadu Act 14 of 1982. He further
pointed out that none of his family members had filed any Habeas Corpus
Petition questioning the detention order.
9.The learned Counsel stated that it is the case of the prosecution that
the aforementioned incident of violent attack against his father was the
motive which A1 harboured to commit the murder of the deceased.
According to the learned Counsel, on 14.04.2013, at around 12.00 noon,
when A2, Esakki Muthu had gone to the house of the deceased, he was
eating at that time. A2 called the deceased to accompany him to the
TASMAC shop. PW-2, his wife, Tmt.Shanthi, protested and tried to
prevent her husband from going along with A2, but however, he left with
A2 in a motor cycle.
10.PW-1, Moses Livingston, son of the deceased and PW-2,
Tmt.Shanthi, wife of the deceased, both suspecting the worst and fearing for
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the life of the deceased also went to Ponnankudi TASMAC shop in a
bicycle. The learned Counsel stated that it is the case of the prosecution that
when they entered the Ponnankudi TASMAC shop, they saw the deceased
drinking liquor and they called him out. A2 then gave a signal by calling out
the name of A1, who immediately came inside and indiscriminately cut the
deceased including severing three fingers on the right hand. The learned
Counsel further stated that PW-1 and PW-2, who are son and wife of the
deceased, immediately left the place and went back to their house and got a
complaint written down by Venita, niece of PW-2 and thereafter, PW-1 and
PW-3, Backiaraj, had gone over to the Munneerpallam Police Station and
lodged a complaint. The learned Counsel stated that the author of the
complaint had not been examined by the respondent during the course of the
investigation. He further pointed out that the FIR was registered at 02.30
pm, but had reached the Court only at 08.00 pm that night and stated that no
explanation had been given for the delay.
11.The learned Counsel in the course of his arguments, after narrating
the facts, stated that both PW-1 and PW-2, who are son and wife of the
deceased, were interested witnesses and therefore argued that their
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statements cannot be relied on. He pointed out that the distance from their
house to Ponnankudi TASMAC shop was nearly about 16 km and that
therefore, it would be impossible to travel by bicycle that distance in half an
hour time. He also pointed that they both contradicted each other in the lay
out of the TASMAC shop and the bar and the direction of the entrances to
the TASMAC shop and therefore stated that the Court should not place
reliance on their evidence. He further pointed out the conduct of PW-1 and
PW-2 in not going to rescue the deceased who had fallen down, but leaving
the place and going to their house past the Police Station. They did not
lodge any complaint in the Police Station. He also stated that during the
course of investigation, the three fingers of the deceased which had been cut
during the attack had not been recovered by the respondent. He therefore
assailed the evidence of PW-1 and PW-2 and stated that the Court should
reject their evidence.
12.The learned Counsel further pointed out the medical evidence in
this regard, particularly, the postmortem report which mentioned about 26
cut injuries and stated that the description did not tally with the overt acts
alleged by PW-1 and PW-2.
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13.The learned Counsel also pointed out the delay in despatching the
FIR which reached the Court only at 08.00 pm, nearly 5 ½ hours after it had
been registered and stated that no explanation had been given for such
delay.
14.The learned Counsel also pointed out the evidence of PW-4 and
PW-5, who were also present in TASMAC shop consuming liquor and also
that of PW-6, the Manager of TASMAC shop, who all stated that suddenly
about four or five persons came and cut the deceased.
15.The learned Counsel again reiterated that the author of the
complaint had not been examined by the respondent. He also pointed out
the evidence of PW-1 that he saw A2 in the night of the same day in the
police station and therefore, questioned the arrest itself. The learned
Counsel further pointed out with respect to the motive, which was about the
previous case wherein the deceased is alleged to have attacked the father of
A1, and stated that the details relating to that particular case had not been
produced during the course of trial. He also pointed out that the deceased
had been detained under Tamil Nadu Act 14 of 1982, but PW-1 and PW-2
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did not take any step to file any Habeas Corpus Petition questioning such
detention.
16.The learned Counsel also stated that on 21.09.2017, when PW-1,
PW-2 and PW-3 were examined in chief and were cross examined, A1 was
not present in Court and therefore, stated that A1 had not been identified by
the said witnesses in Court and also pointed out that the respondent had also
not conducted any test identification parade. The learned Counsel also
pointed out the sketch of the scene of crime prepared in Ex-P21 and stated
that both PW-1 and PW-2 had not given correct details about the direction
of the entrances to the TASMAC shop and therefore, raised a doubt about
the very identification of the scene of crime. He also pointed out the
evidence of both PW-1 and PW-1, who had admitted that there are four
other TASMAC shops in and around the area and they had not given proper
explanation as to how they went only to Ponnankudi TASMAC shop and
not to the other TASMAC shops searching for the deceased, when he was
taken by A2 to a TASMAC shop. The learned Counsel also pointed out that
PW-4, PW-5 and PW-6, who were also eye witnesses and who were
available in the TASMAC shop had been declared hostile and had not
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supported the case of the prosecution.
17.Pointing out all these contradictions, the learned Counsel stated
that on the basis of the evidence of PW-1 and PW-2, who can be categorised
as interested witnesses, it would not be proper to uphold the conviction of
A1 and A2.
18.In this connection, the learned Counsel also placed reliance on the
judgment of the Hon'ble Supreme Court reported in 2024 LiveLaw (SC)
244, in the case of Periyasamy vs State represented by Inspector of Police,
with specific reference to the observation about the scrutiny to be made
regarding the evidence of interested witnesses and contradiction in the
categorical statements made about the location and topography of the
TASMAC shop.
19.The learned Counsel further placed reliance on the judgment of the
Hon'ble Supreme Court reported in 2022 LiveLaw(SC) 856 (Mohamed
Jabbar Ali and others vs State of Assam), wherein, the Hon'ble Supreme
Court had observed as follows:
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“55.It is noted that great weight has been attached to the
testimonies of the witnesses in the instant case. Having regard to
the aforesaid fact that this Court has examined the credibility of
the witnesses to rule out any tainted evidence given in the court of
Law. It was contended by learned counsel for the appellant that
the prosecution failed to examine any independent witnesses in
the present case and that the witnesses were related to each other.
This Court in a number of cases has had the opportunity to
consider the said aspect of related/interested/partisan witnesses
and the credibility of such witnesses. This Court is conscious of
the well-settled principle that just because the witnesses are
related/interested/partisan witnesses, their testimonies cannot be
disregarded, however, it is also true that when the witnesses are
related/interested, their testimonies have to be scrutinized with
greater care and circumspection. In the case of Gangadhar
Behera v. State of Orissa, (2002) 8 SCC 381, this Court held that
the testimony of such related witnesses should be analysed with
caution for its credibility.
56.In Raju alias Balachandran v. State of Tamil
Nadu, (2012) 12 SCC 701, this Court observed:
“29. The sum and substance is that the evidence of a related
or interested witness should be meticulously and carefully
examined. In a case where the related and interested witness
may have some enmity with the assailant, the bar would
need to be raised and the evidence of the witness would have
to be examined by applying a standard of discerning
scrutiny. However, this is only a rule of prudence and not
one of law, as held in Dalip Singh [(1953) 2 SCC 36: AIR
1953 SC 364] and pithily reiterated in Sarwan Singh
[(1976) 4 SCC 369] in the following words : (Sarwan Singh
case [(1976) 4 SCC 369, p. 376, para 10)
“10. … The evidence of an interested witness does not suffer
from any infirmity as such, but the courts require as a rule of
prudence, not as a rule of law, that the evidence of such
witnesses should be scrutinised with a little care. Once that
approach is made and the court is satisfied that the evidence
of interested witnesses have a ring of truth such evidence
could be relied upon even without corroboration.”
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57.Further delving on the same issue, it is noted that in the
case of Ganapathi v. State of Tamil Nadu, (2018) 5 SCC 549,
this Court held that in several cases when only family members
are present at the time of the incident and the case of the
prosecution is based only on their evidence, Courts have to be
cautious and meticulously evaluate the evidence in the process of
trial.”
20.The learned Counsel therefore stated that the Criminal Appeal
should be allowed and the conviction and sentence against A1 and A2
imposed by the trial Court should be set aside.
21.Mr.A.Thiruvadi Kumar, learned Additional Public Prosecutor
appearing for the respondent strongly refuted the contentions of the learned
Counsel for the appellants. The learned Additional Public Prosecutor stated
that it is the consistent evidence of PW-1 and PW-2 that on 14.04.2013,
when they were in the house along with the deceased, A2 had come there
and had taken the deceased in his motorcycle asking him to come over to
the TASMAC shop. The Additional Public Prosecutor stated that a careful
reading of the entire deposition would show that there were no major
contradictions in the evidence of PW-1 and PW-2 and also in the evidence
of the Doctor, who conducted the postmortem. He further pointed out that
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there was not much delay in forwarding the FIR to the Court and stated that
the Court was at a distance of 10 km from the police station. He pointed out
that the incident is said to have occurred about 12.30 noon and by about
02.30 pm, the complaint had been registered and thereafter, the FIR had
been forwarded to the Court.
22.The Additional Public Prosecutor also stated that merely because
PW-1 and PW-2 are son and wife of the deceased, their testimony cannot be
brushed aside. The deposition will have to be read in entirety. He also
pointed out that the complaint has to be read as it is and there was no
necessity to examine the scribe. He further pointed out that the incident
happened in the year 2013 and PW-1 and PW-2 were examined a further
four years later in the year 2017 and therefore, their recollection could be a
little confused about the actual direction of the entrances of the TASMAC
shop and directions in which they were facing. The fact that they were
present cannot be denied and had not been dislodged by the defence. He
further pointed out that the viscera report revealed that there was alcohol in
the stomach of the deceased which itself showed that he had consumed
liquor in the TASMAC shop. He was murdered there.
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23.He further pointed out that the evidence of PW-1 and PW-2 were
recorded on 21.09.2017 and on that date, A1 was though absent, a petition
was filed under Section 317 Cr.P.C., on behalf of A1 with specific
concession to proceed with the case. The case was posted for examination
of list witnesses, 1, 2 and 3 and the trial Judge had therefore proceeded to
examine them as PW-1, PW-2 and PW-3 and to record their evidence. This
was not objected by the Counsel for A1, who also proceeded to cross
examine the witnesses and had not raised any question on the identity of A1.
The original document filed under Section 317 Cr.P.C., is available in the
records. It had also been recorded in the notes paper. There has been no
dispute about the identity of A1 and it was not raised as an issue during the
course of trial. The learned Additional Public Prosecutor therefore stated
that the complicity of A1 and A2 in the offence cannot be denied or
disputed.
24.The learned Additional Public Prosecutor stated that the
prosecution had established the motive, had established that A2 had taken
the deceased to a TASMAC shop and when PW-1 and PW-2 went over to
the TASMAC shop, A2 called over A1 and A1 had indiscriminately cut the
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deceased who died on the spot. He pointed out that PW-1 was a young boy
aged 17 years and PW-2 as his mother, had to necessarily protect him and
therefore, it was only natural that they both left the TASMAC shop
immediately and went over to get a complaint written and lodged before the
police station. It was lodged by 02.30 pm without any delay. The learned
Additional Public Prosecutor therefore stated that the role of both A1 and
A2 had been spoken to by PW-1 and PW-2. He also pointed out the
evidence of PW-3, PW-4 and PW-5, who though had been declared hostile
had stated that the deceased was murdered in the TASMAC shop fixing the
scene of crime and therefore stated that the apparent confusion in the minds
of PW-1 and PW-2 about the direction of the entrances of the TASMAC
shop and bar were irrelevant and of no consequence. The learned Additional
Public Prosecutor therefore stated that the trial Court had correctly placed
reliance on the said evidence and had convicted A1 and A2 of the offences
for which they were charged.
25.The learned Additional Public Prosecutor placed reliance on the
judgment of the Hon'ble Supreme Court reported in (2012) 7 SCC 723
(Thotimanohar vs State of Andhra Pradesh), wherein, the Hon'ble
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Supreme Court had held as follows:
“30.The second submission of the learned
counsel for the appellant is that all the witnesses,
being relatives, are interested witnesses. The
occurrence in part took place inside the house and the
rest of it slightly outside the premises of the deceased.
Under these circumstances, the family members and
the close relatives are bound to be the natural
witnesses. They intervened and sustained injuries.
Their sustaining of injuries has got support from the
ocular evidence as well as the medical evidence. The
same has been dislodged and if we allow ourselves to
say so, not even a fragile attempt has been made to
dislodge the same. By no stretch of imagination can it
be said that they are chance witnesses. In the
obtaining factual matrix, they are the most natural
witnesses.
31. In this context, we may refer with profit to
the decision of this Court in Dalip Singh v. State of
Punjab [(1953) 2 SCC 36 : AIR 1953 SC 364 : 1953
Cri LJ 1465] , wherein Vivian Bose, J., speaking for
the Court, observed as follows : (AIR p. 366, para 25)
“25. We are unable to agree with the learned Judges
of the High Court that the testimony of the two
eyewitnesses requires corroboration. If the foundation
for such an observation is based on the fact that the
witnesses are women and that the fate of seven men
hangs on their testimony, we know of no such rule. If it
is grounded on the reason that they are closely related
to the deceased we are unable to concur. This is a
fallacy common to many criminal cases and one which
another Bench of this Court endeavoured to dispel
in Rameshwar v. State of Rajasthan [1951 SCC
1213 : AIR 1952 SC 54 : 1952 Cri LJ 547 : 1952 SCR
377] .”
32. In the said case, it was further observed that :
(Dalip Singh case [(1953) 2 SCC 36 : AIR 1953 SC
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364 : 1953 Cri LJ 1465] , AIR p. 366, para 26)
“26. A witness is normally to be considered
independent unless he or she springs from sources
which are likely to be tainted and that usually means
unless the witness has cause, such as enmity against
the accused, to wish to implicate him falsely.
Ordinarily a close [relative] would be the last to
screen the real culprit and falsely implicate an
innocent person. It is true, when feelings run high and
there is personal cause for enmity, that there is a
tendency to drag in an innocent person against whom
a witness has a grudge along with the guilty, but
foundation must be laid for such a criticism and the
mere fact of relationship far from being a foundation
is often a sure guarantee of truth.”
33. In Masalti v. State of U.P. [AIR 1965 SC 202 :
(1965) 1 Cri LJ 226] it has been ruled that normally
close relatives of the deceased would not be
considered to be interested witnesses who would also
mention the names of the other persons as responsible
for causing injuries to the deceased.
34. In Hari Obula Reddy v. State of A.P. [(1981) 3
SCC 675 : 1981 SCC (Cri) 795 : AIR 1981 SC 82]
(SCC pp. 683-84, para 13) a three-Judge Bench has
held that evidence of interested witnesses is not
necessarily unreliable evidence. Even partisanship by
itself is not a valid ground for discrediting or rejecting
sworn testimony. It cannot be laid down as
“an invariable rule that interested evidence can never
form the basis of conviction unless corroborated to a
material extent in material particulars by independent
evidence. All that is necessary is that the evidence of
interested witnesses should be subjected to careful
scrutiny and accepted with caution. If on such
scrutiny, the interested testimony is found to be
intrinsically reliable or inherently probable, it may, by
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itself, be sufficient, in the circumstances of the
particular case, to base a conviction thereon.”
35. In Kartik Malhar v. State of Bihar [(1996) 1 SCC
614 : 1996 SCC (Cri) 188] (SCC p. 621, para 15) it
has been opined that a close relative who is a natural
witness cannot be regarded as an interested witness,
for the term “interested” postulates that the witness
must have some interest in having the accused,
somehow or the other, convicted for some animus or
for some other reason.
36.In Pulicherla Nagaraju v. State of A.P. [(2006) 11
SCC 444 : (2007) 1 SCC (Cri) 500 : AIR 2006 SC
3010], while dealing with the liability of interested
witnesses who are relatives, a two-Judge Bench
observed that : (SCC p. 453, para 16)
“16. … it is well settled that evidence of a witness
cannot be discarded merely on the ground that he is
either partisan or interested or closely related to the
deceased, if it is otherwise found to be trustworthy and
credible.”
The said evidence only requires scrutiny with more
care and caution, so that neither the guilty escapes nor
the innocent is wrongly convicted. If on such careful
scrutiny, the evidence is found to be reliable and
probable, then it can be acted upon.
“16. … If it is found to be improbable or suspicious, it
ought to be rejected. Where the witness has a motive to
falsely implicate the accused, his testimony should
have corroboration in regard to material particulars
before it is accepted.” (Pulicherla case [(2006) 11
SCC 444 : (2007) 1 SCC (Cri) 500 : AIR 2006 SC
3010] , SCC p. 453, para 16)
37. Tested on the anvil and touchstone of the aforesaid
principles, we find that the evidence of the injured
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witnesses who are close relatives of the deceased have
really not embellished or exaggerated the case of the
prosecution. They are the most natural witnesses and
there is nothing on record to doubt their presence at
the place of occurrence. By no stretch of imagination
can it be stated that the presence of the said witnesses
at the scene of the crime and at the time of occurrence
was improbable. Their version is consistent and
nothing has been suggested to bring any kind of
inherent improbabilities in their testimonies.
38. The learned counsel for the appellant has
endeavoured hard to highlight certain discrepancies
pertaining to time, situation of the land, number of
persons, etc. but in our considered opinion, they are
absolutely minor in nature. Minor discrepancies on
trivial matters not touching the core of the matter
cannot bring discredit to the story of the prosecution.
Giving undue importance to them would amount to
adopting a hypertechnical approach. The Court, while
appreciating the evidence, should not attach much
significance to minor discrepancies, for the
discrepancies which do not shake the basic version of
the prosecution case are to be ignored. This has been
so held in State of U.P. v. M.K. Anthony [(1985) 1
SCC 505 : 1985 SCC (Cri) 105 : AIR 1985 SC
48] , Appabhai v. State of Gujarat [1988 Supp SCC
241 : 1988 SCC (Cri) 559 : AIR 1988 SC
696] , Rammi v. State of M.P. [(1999) 8 SCC 649 :
2000 SCC (Cri) 26 : AIR 1999 SC 3544] , State of
H.P. v. Lekh Raj [(2000) 1 SCC 247 : 2000 SCC (Cri)
147] , Laxman Singh v. Poonam Singh [(2004) 10
SCC 94 : 2004 SCC (Cri) 1514] and Dashrath
Singh v. State of U.P. [(2004) 7 SCC 408 : 2004 SCC
(Cri) 1932]
39. No evidence can ever be perfect for man is not
perfect and man lives in an imperfect world. Thus, the
duty of the court is to see with the vision of prudence
and acceptability of the deposition regard being had to
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the substratum of the prosecution story. In this context,
we may reproduce a passage from the decision of this
Court in State of Punjab v. Jagir Singh [(1974) 3
SCC 277 : 1973 SCC (Cri) 886 : AIR 1973 SC 2407],
wherein H.R. Khanna, J., speaking for the Court,
observed thus : (SCC pp. 285-86, para 23)
“23. A criminal trial is not like a fairy tale wherein
one is free to give flight to one's imagination and
phantasy. It concerns itself with the question as to
whether the accused arraigned at the trial is guilty of
the crime with which he is charged. Crime is an event
in real life and is the product of interplay of different
human emotions. In arriving at the conclusion about
the guilt of the accused charged with the commission
of a crime, the court has to judge the evidence by the
yardstick of probabilities, its intrinsic worth and the
animus of witnesses. Every case in the final analysis
would have to depend upon its own facts. Although the
benefit of every reasonable doubt should be given to
the accused, the courts should not at the same time
reject evidence which is ex facie trustworthy on
grounds which are fanciful or in the nature of
conjectures.”
40. In view of our aforesaid analysis, we are
unable to accept the submission of the learned counsel
for the appellant that the evidence of the eyewitnesses
should be rejected solely on the ground that they are
close relatives and interested witnesses.”
26.The learned Additional Public Prosecutor also placed reliance on
the judgment of the Hon'ble Supreme Court reported in 2023 SCC OnLine
SC 355 (Balu Sudam Khalde and another vs State of Maharastra) with
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specific reference to paragraph No.25, which is as follows:
“APPRECIATION OF ORAL EVIDENCE
25. 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:
“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 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
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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 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
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.
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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 sub-conscious 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.
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.”
[See Bharwada Bhoginbhai Hirjibhai v. State of
Gujarat, 1983 Cri LJ 1096 : ((1983) 3 SCC 217 : AIR
1983 SC 753) Leela Ram v. State of Haryana, (1999)
9 SCC 525 : AIR 1999 SC 3717 and Tahsildar
Singh v. State of UP (AIR 1959 SC 1012)]
27.Pointing out the ratio laid down therein, the learned Additional
Public Prosecutor argued that the evidence of PW-1 and PW-2 cannot and
should not be discarded as the same is natural and has a ring of truth. He
argued that the conviction of the accused was proper and that therefore the
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appeal should be dismissed.
28.We have carefully considered the arguments advanced and
perused the material records.
29.The point to be determined is whether the conviction and sentence
imposed against A1 and A2 by the trial Court should be set aside or
modified or upheld?
30.It is the case of the prosecution that the deceased Edison Suvisesha
Muthu, father of PW-1 and husband of PW-2, was a person addicted to
liquor and had many criminal cases registered against him in police stations
in and around Tirunelveli. On an earlier occasion about two years prior to
14.04.2013, he had, owing to a quarrel while playing cards with the father
of A1 had cut the father of A1 in his hands and had also been taken into
custody. He had also been detained as a goonda under Tamil Nadu Act 14
of 1982. It is on record that PW-1 and PW-2 had not taken any steps to file
any Habeas Corpus Petition seeking to set aside the detention order. They
were of the opinion that he was safer inside the jail. His detention period
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expired just about two months prior to 14.04.2013.
31.On 14.04.2013, when PW-1, PW-2 and the deceased were in their
house and the deceased had just about eaten his food, A2 is said to have
come over to the house and called the deceased to come with him to the
TASMAC shop to consume liquor. Even though PW-2 protested, the
deceased went along with A2 in a motor cycle brought by A2. It is the
further case of the prosecution that PW-1 and PW-2 also went to the
TASMAC shop fearing for the life of the deceased. They went in a bicycle.
32.During cross examination of PW-1, he stated that the distance
between his village and the new bus stand would be 8 km. He also stated
that from the new bus stand till Ponnankudi TASMAC shop, there would a
further distance of 7, 8 km. Placing reliance on this evidence, it had been
very strongly argued by the learned Counsel for the accused that PW-1 and
PW-2 could not have covered that distance by bicycle within a period of
half an hour.
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33.The trial Judge brushed aside that particular argument by pointing
out that on the date of the incident, PW-1 was a young boy of 17 years and
that both PW-1 and PW-2 were anxious about the safety of the deceased,
who was their father/husband and that therefore there was every possibility
of them reaching the TASMAC shop within the said time period.
34.One crucial aspect is the further question put to PW-1 that on the
way back, they would have crossed Munneerpallam Police Station. He
however stated that there was no necessity to go through that particular
route. It is thus also possible that only the distance had been put which had
been affirmed but not the actual pathway from the house of PW-1 and PW-2
to Ponnankudi TASMAC shop.
35.It is the case of the prosecution that when PW-1 and PW-2 reached
the TASMAC shop, they saw the deceased sitting in a table along with A2,
drinking liquor. At that time, A2 called out the name of A1, who was
standing outside the other door and on that signal, A1 entered into
TASMAC shop and in front of PW-1 and PW-2, indiscriminately cut the
deceased, who collapsed at that very place.
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36.It is the case of the accused that PW-4 and PW-5 who were
customers in the TASMAC shop and PW-6, who was the Manager had, in
their evidence, stated that four or five persons came and attacked the
deceased. But the evidence of both PW-1 and PW-2 is very clear. They
heard the name of A1 being shouted by A2 and A1 coming and attacking
the deceased. We are of the firm opinion that the trial Court had correctly
treated PW-4, PW-5 and PW-6 as hostile witnesses. One fact which
emerges from their evidence is that the deceased was murdered only in that
TASMAC shop and nowhere else.
37.Specific questions had been put to PW-1 and PW-2 about the
location of the doorways to the TASMAC shop and bar and whether they
were facing north or west. It must be pointed out that PW-1 and PW-2 had
gone over to that particular TASMAC shop witnessed the murder of the
deceased and immediately came out. This was on 14.04.2013. They were
examined in Court on 21.09.2017, nearly after four years and five months.
Naturally, minute discrepancies about the direction in which the door way
was situated and whether it was north or south or west would not be a detail
which would have remained in their minds. They would have only known
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about the attack being carried on against the deceased and as soon as that
had happened, PW-1, who was a young boy of 17 years was taken away by
PW-2. That was only natural as PW-2 would have feared for the life PW-1
also. Her young son was aged just 17 years. Therefore, we would not place
much credence to the minute discrepancies about which direction the
doorways were situated in the TASMAC shop. It is not the case of the
accused that both PW-1 and PW-2 were and are frequent visitors to that
TASMAC shop prior to and even after that particular incident.
38.There is one more factor which had been pointed out, namely, that
three fingers had been cut and they were not recovered by the Investigating
Officer. We really wonder as to how this could shake the evidence of PW-1
and PW-2. They had witnessed a series of cuts being inflicted on the
deceased and to the extent possible, they had narrated the same. In effect,
their father/husband had died on the spot. They rushed back to their house
and got a complaint written down and lodged it with the help of PW-3 in
the police station. This is the maximum extent which they could do in the
circumstances. The incident occurred in a TASMAC shop where customers
were drinking and naturally they had to leave that place hurriedly. PW-3,
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Backiaraj, who had also signed in the complaint spoke affirmatively about
the complaint being written down and being lodged in the police station.
39.PW-18, Ramakrishnan was the Sub Inspector of Police at
Munneerpallam Police Station on 14.04.2013. In his evidence, he stated that
at 02.30 in the afternoon, PW-1 had come to the police station and had
lodged the complaint and he had registered the FIR in Cr.No.168 of 2013
under Section 302, 120B r/w 34 IPC. He thereafter, sent the FIR by express
tapal through police Constable Kumar, through passport, Ex-P10 to the
Judicial Magistrate-V, Tirunelveli and also sent copies to his higher
officials. Since the Inspector of Police was not available, he had forwarded
a copy of the FIR to the in-charge Inspector of Police at Cheranmahadevi
through a woman Constable. The FIR had been marked as Ex-P16. He
denied the suggestion that the complainant/PW-1 had singed in blank papers
and thereafter, the complaint was written down by a higher official. He
denied that the FIR was not registered at the time mentioned in Ex-P16.
40.The investigation was taken over by PW-20, Lakshmanan, who
was the Circle Inspector at Cheranmahadevi Police Station on 14.04.2013
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and in-charge of Munneerpallam Police Station as Inspector of Police. He
had received a copy of the FIR through woman Police Constable of
Munneerpallam Police Station. At 04.30 pm, he investigated the scene of
crime in the presence of witnesses, Kerson, PW-7 (declared hostile), but
whose signatures in the observation mahazer and athatchi were marked as
Ex-P2 and Ex-P3 and witness Kovil Pitchi, PW-8 (declared hostile) whose
signatures in the observation mahazar and athatchi were marked Ex-P4 and
Ex-P5. PW-20 further stated that at 05.30 pm., from the TASMAC shop, he
recovered a pair of slippers (MO-4) and blood stained cement piece (MO-5)
and cement piece without blood (MO-6), blood stained stool (MO-8) and
blood stained small box (MO-7). He further identified the black and white
checked blood stained cotton lungi (MO-3), gray colour t-shirt (MO-2)
worn by the deceased which were seized under Form-91 and forwarded to
the Court. These would show that the incident did actually happen only at
the said TASMAC shop.
41.PW-20 then conducted inquest over the dead body of the deceased
in front of panchayatars. The inquest report was marked as Ex-P23.
Thereafter, he recorded the statements of Moses Livingston (PW-1),
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Tmt.Shanthi (PW-2), Backiaraj (PW-3), Sathiyaraj (PW-4) (declared
hostile), Selva Michael Raj (PW-5) (declared hostile), Chellakannu (PW-6)
(declared hostile), Kerson (PW-7) (declared hostile), Kovil Pitchai (PW-8)
(declared hostile), Grade-I Police Constable, Kumar (PW-14) and Sub
Inspector of Police, Ramakrishnan (PW-18). He then made arrangements
through PW-15, Baskar, Police Constable to send the body for postmortem
through passport, Ex-P11 and covering letter, Ex-P14.
42.The Doctor, who conducted the postmortem, Dr.Selvamurugan,
was examined as PW-17. He stated that on 15.04.2013, he conducted the
postmortem on and from 10.45 am of a 47 years old, whose name was given
as Edison Suvisesha Muthu. At that time, rigor mortis had set it. He
identified the following injuries:
“1)A horizontal gapping heavy cut injury of size 12 x 2
x 7cm seen over front and right side of upper part of
neck. It cuts underlying soft tissues, larynx, torque,
vessels and nerves.
2)A horizontal gapping heavy cut injury of size
4 x 2 x 3cm seen in right side of neck. It lies 2cms
below injury no.1.
3)A cut injury of size 2 x 1 x lcm seen in left
cheek.
4)An oblique gapping heavy cut injury of size 6
x 1cm x bone deep in left temporal region.
5)An oblique cut injury of size 4 x 1 x 0.5cm
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seen in front of left ear.
6)An oblique gapping heavy cut injury of size
14 x 4 x 6cm seen in left cheek and left side of chin. It
cuts underlying left ear lobule, soft tissues and left side
of mandible.
7)A vertical gapping heavy cut injury of size 4 x
1cm x bone deep in left side of occipital region.
8)A vertical gapping heavy cut injury of size 11
x 2 x 3cm lies 5 cm behind left ear. It cuts underlying
soft tissues and left side of mandible.
9)A horizontal gapping heavy cut injury of size
12 x 4.x 8cm in upper part of back of neck. It cuts
underlying soft tissues vessels, nerves, cervical
vertebra and spinal cord.
10)An oblique gapping cut injury of size
3x1xlcm in top of right shoulder.
11)An oblique gapping heavy cut injury of size
8 x 3 x 5cm seen in inner aspect of right upper arm. It
cuts underlying soft tissues.
12)An oblique gapping cut injury of size
4x2x1cm seen over back of middle of right forearm.
13)A horizontal gapping heavy cut injury of size
8 x 2 x 3cm in back of right wrist. It cuts underlying
soft tissues, tendons and right radius bone.
14)A horizontal gapping heavy cut injury of size
4 x 1 x 2cm in inner aspect of right wrist.
15)An oblique gapping heavy cut injury of size
10x2x4cm seen in palmar aspect of right hand. It cuts
soft tissues of base of thumb, vessels, nerves and
tandoms and meta carpol bone.
16)A horizontal gapping heavy cut injury of size
17x2x5cm extending from right palm to inner aspect of
right wrist. It cuts underlying soft tissues, vessels,
nerves and meta carpol bones.
17)An oblique gapping heavy cut injury over
tips of 234 and 5 fingers of right hand and separates
the lower part of fingers. Separated part matches with
stump by its colour, contour, complexion and
anatomical continuity. 18)An oblique gapping
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heavy cut injury of size 15x3x6cm seen in back of left
upper arm. It cuts underlying soft tissues.
19)An oblique cut injury of size 15x7x2cm seen
in back of left elbow. 20)A horizontal gapping
heavy cut injury of size 15x2x6cm seen in outer aspect
and back of left wrist. It cuts underlying soft tissues,
vessels, nerves, tendons and carpal bones of left wrist.
21)A vertical cut injury of size 14x1xlcm seen in
palmar aspect of left hand.
22)A horizontal gapping heavy cut injury of size
25 x 3 x 10cm seen in back of let thigh. It cuts
underlying soft tissues, vessels, nerves and left femur.
23)A horizontal gapping heavy cut injury of size
24x3x10 cmseen in back of upper part of left leg. It
cuts underlying soft tissues, vessels, nerves and left leg
bones.
24)A horizontal gapping heavy cut injury of size
14x3x6 cm seen in back of middle of right thigh. It cut
underlying soft tissues, vessels and and nerves.
25)A horizontal gapping heavy cut injury of size
18x3x6 cm lies 2cm below injury injury no.24. It cuts
underlying soft tissues. Vessels and nerves.
26)A horizontal cut injury of size 5x1xl cm lies
4cm below injury no.25.”
43.The learned Counsel appearing for the appellants pointed out the
injuries as listed which are 26 in number and then pointed out the evidence
of PW-1 and PW-2 relating to the overt acts of A1 while inflicting injuries
against the deceased. PW-1 in his evidence had stated that the right hand
fingers had been cut and thereafter, the deceased fell down and A1 had
repeatedly cut on his two legs and then held the head and cut the neck.
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PW-2 in her evidence also stated that the fingers in the right hand had been
cut and that her husband fell down and his legs were also cut and also that
A1 cut indiscriminately on the neck. She then stated that since PW-1 was a
young boy, she took him and went away from that place. The learned
Counsel had stated that both PW-1 and PW-2 had not mentioned that there
were 26 cuts inflicted on the body of deceased and pointed out the injuries
noted by the Doctor, PW-17 which had been extracted above.
44.A perusal of the injuries as noted by the Doctor also shows that
there were cut injuries on the neck, left cheek, left ear, left temporal bone,
mandible, back of neck, top of right shoulder, middle of right fore arm, right
wrist, separation of fingers, left upper arm, left femur, left leg bones and
middle of right thigh. It is thus seen that on a brought aspect, injuries have
been inflicted on the neck portion, on the right arm and on the legs which is
consistent with what PW-1 and PW-2 had seen and stated. They could not
have possibly counted the number of cut injuries. They can only see the
first injury inflicted on the right arm severing the fingers and the deceased
falling and repeated cuts inflicted on the legs and thereafter, repeated cuts
inflicted on the neck portion. As a matter of fact, PW-17, Dr.Selva
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Murugan, also stated with respect to the fingers which were allegedly
missing as follows:
“separate part matches with stump by its colour, contour,
complexion and anatomical continuity”.
45.This therefore establishes that the cut fingers were actually
recovered and matched with stumps found in the right hand finger parts of
the deceased. We would therefore unhesistatingly hold that the statements
made by PW-1 and PW-2 relating to the nature of the injuries have actually
been confirmed by the postmortem certificate, Ex-P15 which was the result
of a detailed and leisurely examination of a dead body.
46.During his cross examination, PW-20, Lakshmanan had further
stated that there was enmity between the deceased and the father of A1,
since the deceased had attacked and caused cut injuries to the father of A1
two years before. He further stated that during his enquiry, PW-1 and PW-2
had stated that they had gone by bicycle to call the deceased back from the
TASMAC shop. He denied the suggestion that information was first
received in the police station about a dead person in the TASMAC shop and
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thereafter, they had sent information to PW-1 and PW-2 and only then they
arrived. He also denied that PW-1 and PW-2 were not eye witnesses. He
also affirmed that PW-1 and PW-2 entered the TASMAC shop bar through
the south side.
47.PW-21, Muthu Subramaniam,Inspector of Police, Munneerpallam
Police Station, who continued with the investigation on 15.04.2013, had
once again examined the witnesses whose statements had already been
recorded, and confirmed their statements. Then, at around 04.00 am on
15.04.2013, he arrested A2 in the presence of witnesses, Durai Raj (not
examined) and Duraipandi (PW-18). He also recorded the confession
statement of A2 and recovered the motor cycle in which he had taken the
deceased from the house of the deceased to the Ponnankudi TASMAC shop.
The motorcycle was seized under mahazar Ex-P13. He then received
information on 18.04.2013 that A1 had surrendered before the learned
Judicial Magistrate, Ambasamudram. He then filed an application seeking
police custody of A1 and took him into police custody from 25.04.2013
evening 04.00 pm. On 26.04.2013, he recorded the confession statement of
A1 in the presence of Mohan, Village Administrative Officer,
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Munneerpallam (PW-9) and Perumal (PW-10) (declared hostile). He then
recovered the aruval used by A1 (MO-1). He then recorded the statements
of Dr.Selvamurugan (PW-17), who had conducted the postmortem. He also
recorded the statement of witnesses, Mayandi (PW-11) (declared hostile)
and Aathavan (PW-12) (declared hostile). He then handed over the
investigation to PW-22, Charles Kalaimani, who had taken charge as
Inspector of Police, Munneerpallam Police Station.
48.During cross examination, PW-21, Muthu Subramaniam, denied
that on 14.04.2013 itself, A2 had been taken into custody. He denied that
A1 and A2 had been wrongly charged with commission of offences. He
denied that there was a delay in forwarding the FIR to the jurisdictional
Magistrate Court. He denied the suggestion that material objects were not
recovered in the manner as he stated.
49.The investigation was then continued by PW-22, Charles
Kalaimani, Inspector of Police, Munneerpallam Police Station. He took up
the further investigation and forwarded the material objects for forensic
examination under requisition letter, Ex-P24. He then recorded the
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statement of Police Constable, Meenakshi Murugan (not examined). He
then received the report from the Forensic Laboratory and also recorded the
statement of Tmt.Minitha, (not examined) Junior Scientific Officer,
Regional Forensic Laboratory, Tirunelveli. He also recorded the statement
of Balamurugan (PW-16), Forensic Scientific Expert, who had identified
Ex-P12 and Ex-P13 relating to the blood stained material objects and
viscera of the deceased.
50.After completing investigation, PW-22, Charles Kalaimani filed
final report charging the accused with commission of offences under
Sections 302 and 120B IPC r/w 34 IPC.
51.During cross examination, he denied the suggestion that the
deceased was murdered by unidentified persons. He denied the suggestion
that the accused had no connection with the case.
52.The above narration of flow of events would show in detail the
sequence of events from the time when the deceased had cut the father of
A1 owing to a quarrel while playing cards and later, being detained as a
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goonda under the Tamil Nadu Act 14 of 1982 and coming out of the
detention and within two months thereafter, being enticed from his house by
A2 and going to Ponnankudi TASMAC shop with A2 and drinking liquor
there and PW-1 and PW-2 out of extreme anxiety rushing to that place in a
bicycle and witnessing A1 indiscriminately cutting the deceased initially on
the right hand cutting away his fingers and when he fell down,
indiscriminately on his legs and also on his neck by holding his head
causing instant death. The subsequent investigation had established that the
evidence of PW-1 and PW-2 cannot be discarded as being stated by
interested witnesses, as contended by the learned Counsel for the appellants.
53.The learned Counsel for the appellants had placed reliance on the
judgment of the Hon'ble Supreme Court reported in 2022 LiveLaw(SC) 856
(Mohamed Jabbar Ali and others vs State of Assam), wherein, on
examining the evidence of that particular case, the Supreme Court had come
to a conclusion that there are discrepancies between the statements of the
witnesses and materials and therefore, had acquitted the appellants therein
of all charges. Similarly, the learned Counsel for the appellants had also
placed reliance on the judgment of Hon'ble Supreme Court reported in 2024
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LiveLaw (SC) 244, in the case of Periyasamy vs State represented by
Inspector of Police, where again the Hon'ble Supreme Court had examined
the evidence adduced in that particular case and had held that there were
cumulative lapses affecting the over all sanctity of the prosecution case.
54.In the instant case, there are no material lapses whatsoever in the
evidence of PW-1 and PW-2. They had reached the TASMAC shop. They
had heard A2 calling out A1 and asking A1 to finish off the deceased. The
deceased was in the TASMAC shop, drinking liquor. He had been taken to
the TASMAC shop by A2. A1 had a previous motive, since his father's
hands had been cut by the deceased earlier. A1 came and the first cut was
on the right hand, cutting off the fingers. The deceased then fell down. A1
then cut the deceased indiscriminately on the legs and thereafter held the
head and cut him in the neck. These facts have been broadly stated by both
PW-1 and PW-2. The nature of injuries have been confirmed by the
Dr.Selvamurugan, PW-17, who conducted the postmortem, who had listed
out 26 separate injuries, broadly on the neck portion, on the hand and on the
legs, in conformity with the evidence of PW-1 and PW-2.
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55.The fact that PW-1 and PW-2 ran away from the TASMAC shop is
only natural. PW-2 stated that her son, PW-1 was a young boy (rpWtd;)
and therefore, she had a responsibility to protect him, as she did not know
the further intention of A1 or A2. Thereafter, they had gone over to get the
complaint being written by her niece. This has been confirmed by PW-3,
Backiaraj. The fact that the author of the complaint had not been examined
is of no consequence, since she had been identified. It would have been a
different issue, if the author of the complaint had not at all been identified
and some stranger had written the complaint and the complaint was
produced before the police station. Here, a family member had written the
complaint and it was presented before the police station as early as possible.
The FIR had been lodged at 02.30 pm. The incident had happened at 12.30
pm. There could be a delay in forwarding the FIR to the Court, but again
that is of no consequence in this case, since the distance between the Court
and the police station is about 10 km and the delay is only natural, since the
Inspector of Police, PW-21, was on leave, the copies of the FIR had to be
despatched to PW-20, the Inspector of Police, Cheranmahadevi Police
Station, who was in-charge of Munneerpallam Police Station on that date. It
must be kept in mind that since the Inspector of Police at Munneerpallam
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Police Station was on leave on 14.04.2013, further instructions will have to
be obtained only from PW-20, who was Inspector of Police,
Cheranmahadevi Police Station. It is on evidence that PW-20 visited the
scene of crime by 04.30 pm and commenced investigation. The
investigation had also proceeded in the correct course.
56.We hold that the evidence of PW-4, PW-5 and PW-6, who stated
that four or five persons came and attacked the deceased is not a correct
statement. They had been declared hostile. They would naturally be in fear
of A1 after directly witnessing the extreme hostility with which he had
attacked the deceased even after the deceased had fallen down. The alleged
contradictions in the evidence of PW-1 and PW-2 about the direction of the
entrance and doorways of the TASMAC shop and bar is of no consequence,
since the body had been recovered from inside the TASMAC shop. They
had clearly stated the manner in which the attack took place, the manner in
which he fell down and the injuries inflicted on him. There is complete
consistency in the evidence on that aspect.
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57.The allegation that PW-1 and PW-2 could not have gone by
bicycle covering a distance of 16 km within half an hour time again had
been correctly rejected by the learned trial Judge and is also rejected by us,
since the actual route and pathway and course of pathway had not been
given and even the suggestion that on the way back they crossed the Police
Station had been denied by PW-1, who stated that there was an alternate
way to reach his place. Therefore, the available record on those aspects do
not confirm the theory of the accused that the distance is 16 km. It could be
less and PW-1 a young boy of aged 17 years and in an agitated state of mind
to protect his father could have cycled at quite a speed to reach Ponnankudi
TASMAC shop.
58.The further arguments advanced by the learned Counsel for the
appellants that on the date of examination of PW-1, PW-2 and PW-3, A1
was absent in Court cannot be given any consideration at all, since the
Counsel for A1 had filed an application under Section 317 Cr.P.C., and had
very specifically stated that recording of evidence can continue. Original
records are available. We hold that it was a deliberate ploy on the part of
A1 to deliberately absent himself on the day when summons had been
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issued to the list witness 1 to 3, namely, PW-1, PW-2 and PW-3. As a
matter of fact, extensive cross examination had been conducted on all the
three witnesses and arguments have also been advanced on the basis of such
cross examination. The identity of A1 was never raised as an issue and is
not at all in doubt. That ground had never been raised before the trial Court.
59.Section 317(1) Cr.P.C., is as follows:
“317.Provision for inquiries and trial being
held in the absence of accused in certain cases.
(1)At any stage of an inquiry or trial under this
Code, if the Judge or Magistrate is satisfied, for
reasons to be recorded, that the personal attendance
of the accused before the Court is not necessary in the
interests of justice, or that the accused persistently
disturbs the proceedings in Court, the Judge or
Magistrate may, if the accused is represented by a
pleader, dispense with his attendance and proceed
with such inquiry or trial in his absence, and may, at
any subsequent stage of the proceedings, direct the
personal attendance of such accused.
(Emphasis supplied)
60.The Court can proceed with the examination even in the absence
of the accused and the only reason given in the application was that A1 was
ill. Since witnesses were present and the Counsel had not raised any
objection for examining them, we hold that the trial Court had correctly
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proceeded with the examination of the witnesses. We do not find any
infirmity in such procedure.
61.It is thus clear that Edison Suvisesha Muthu had suffered a
homicidal death on 14.04.2013 and that the evidence and materials on
record point at the involvement of A1 and A2 in such offence. The case
does not fall under any of the exception to Section 300 IPC. No mitigating
circumstances have been pleaded.
62.In view of all the above reasons, we hold that the well considered
judgment of the trial Court cannot be disturbed and we uphold the
conviction of A1 and A2 and the sentence imposed by the trial Court. In
effect, the Criminal Appeal stands dismissed. The trial Court is directed to
secure the appellant/accused and commit him to the prison to undergo the
remaining period of sentence. The period of imprisonment already
undergone by the accused shall be set off under Section 428 of Cr.P.C.
[C.V.K., J.] & [J.S.N.P., J.]
10.09.2024
Internet :Yes/No
Index :Yes/No
NCC :Yes/No
cmr
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To
1.The I Additional District Judge, Tirunelveli.
2.The Superintendent, Central Prison, Palayamkottai.
3.The Inspector of Police,
Munneerpallam Police Station,
Tirunelveli District.
4.The Additional Public Prosecutor,
Madurai Bench of Madras High Court, Madurai.
5.The Section Officer,
ER/VR Section,
Madurai Bench of Madras High Court, Madurai.
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C.V.KARTHIKEYAN, J.
AND
J.SATHYA NARAYANA PRASAD. J.
cmr
Judgment made in
10.09.2024
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