Guna @ Gunasekaran v. The State rep. by Inspector of PoliceNagore Police StationThittachery Police Station

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 9.7.2008CORAM: THE HONOURABLE MR.JUSTICE P.D.DINAKARAN ANDTHE HONOURABLE MR.JUSTICE K.N.BASHACriminal Appeal No.840 of 2007Guna @ Gunasekaran..Appellant/AccusedVs.The State rep. by Inspector of PoliceNagore Police StationThittachery Police Station... Respondent/Complainant-----Appeal against the judgment of the learned Sessions Judge,Nagapattinam, dated 25.7.2007 made in S.C.No.1 of 2006.-----For Appellant: Mr.Veera KathiravanFor Respondent : Mr.N.R.Elango Additional Public Prosecutor-----J U D G M E N T(Delivered by P.D.DINAKARAN,J.)Aggrieved by the conviction under Sections 302 and 506(ii),ItPC and sentence to undergo imprisonment for life with fine ofRs.2,500/- and to undergo rigorous imprisonment for two years withfine of Rs.1,000/- respectively imposed on him by the learnedSessions Judge, Nagapattinam in S.C.No.1 of 2006, the accused haspreferred the above appeal.2. The allegation in the charges framed against the accusedis that (a) on 18.3.2005 at about 12.30 pm, the accused attacked oneSourrirajan on his neck with aruval, resulting in instantaneousdeath, due to previous enmity, in the place belonging to oneLiyakath Ali situated at western side of Enangudi Road, Pakkam https://hcservices.ecourts.gov.in/hcservices/ Kottur Village and thereby he committed an offence punishableunder Section 302, IPC; and (b) in furtherance of the said occurrence, when oneThiyagarajan, son of the deceased Sourrirajan, was shouting at himnot to attack, he threatened him that he would also do away withhim and thereby he committed an offence punishable under Section506(ii), IPC.3. The case of the prosecution, as discerned from theevidence of prosecution witnesses, is as follows:(a) P.W.1, son of the deceased, deposed that he knew theaccused who was residing 3 kms away from his place. On the date ofoccurrence, at about 8 am, the deceased went to the agriculturalfield. At about 10 am, he went to the field taking lunch for thedeceased. At that time, the deceased was cleaning the threshfloor. At about 11 am, the accused brought about 10/12 goatsthrough their field, which was resisted by the deceased sincestanding crops were there. The accused scolded the deceased withfilthy words, to which, the deceased reacted and shouted againsthim. In the altercation, the accused rebuked the deceased bysaying that he would do away with him and the deceased counteredthat he would also do the same. Thereafter, the accused left theplace with his goats. At about 12/12.30 pm, the accused came tothe place of occurrence in a bicycle, where the deceased was doingcleaning work. At that time, four/five fields away from the placeof occurrence, he was working. On hearing some noise, he went tothe place of occurrence where he saw the accused taking thearuval, M.O.1 and immediately, he shouted against the accused notto cut the deceased. But, the accused cut the deceased on theleft side of the neck. At once, the deceased fell down and theaccused threatened the people who were working there that he woulddo away with them if they come near to him. At that time, P.Ws.2to 6 were working there. P.W.6, who was working at a distance of10 feet, swooned on seeing the occurrence. After ten minutes, hewent to his residence, which was 2 kms away from the place ofoccurrence, in the bicycle. After informing about the incident tohis mother, brother and relatives, he went to the Police Stationat about 15 kms and reached there at about 3/3.15 pm. He lodged acomplaint, Ex.P1 to P.W.15. Thereafter, he left in his friend'smotor cycle to the place of occurrence where the Police came atabout 4 pm and enquired him and others.(b) P.W.2, an eye witness, who was working in the field ofLiyakat Ali where the occurrence took place, deposed that he knewP.W.1 and the accused and even though he was working in the fieldat the time of occurrence, which was four/five fields away fromthe place of occurrence, he was not aware as to how the deceasedwas done to death. Hence, he was treated as hostile witness. https://hcservices.ecourts.gov.in/hcservices/ (c) P.W.3, another eye witness, deposed that he knew thedeceased, P.W.1 and P.W.2 and on the date of occurrence, he wasdrying the crops in the road; at about 12 noon, on hearing thenoise and seeing the people gathering at the place of occurrence,he also went and saw the deceased lying dead with blood; on seeingthe deceased, he fainted; he had not seen the accused earlier oron the date of occurrence; and he was not aware about who murderedthe deceased. Hence, he was also treated as hostile witness.(d) P.W.4, who is also an eye witness to the occurrence,deposed that he knew P.Ws.1 to 3, but not the accused and he wasnot present at the time of occurrence; he came to the place ofoccurrence only on hearing about the incident; and he was notaware of the details as to who caused the death of the deceased.Hence, he was also treated as hostile witness.(e) P.W.5, another eye witness to the occurrence, deposedthat he did not know about the cause of the death of the deceasedas the distance between the field in which he was working and theplace of occurrence would be four fields; he cannot see the placeof occurrence from the field in which he was working and he cannothear the sound also; at about 12.30 pm on the date of occurrence,he saw the crowd at the place of occurrence; and he did not knowas to who murdered the deceased. Therefore, he was also treatedas hostile witness.(f) P.W.6, who is also an eye witness to the occurrence,deposed that on his return from temple at about 12.30 pm, he wasinformed that the deceased was done to death; on seeing the crowd,he went and saw the deceased, but he did not know as to who causedthe death of the deceased and the manner in which the deceased wasdone to death; and he was not present at the time of occurrence.Hence, he was also treated as hostile witness.(g) P.W.10, Vice President of the Panchayat Union, deposedthat he knew the accused as well as P.W.1 and the deceased andeven though he knew that the deceased was murdered, he did notknow as to who committed the murder. Hence, he was also treatedas hostile witness.(h) P.W.15, Sub Inspector of Police, on receipt of complaintfrom P.W.1 at about 3.00 pm registered a case in Crime No.128/2005for the offence under Sections 302 and 506(ii), IPC. Then, heprepared Ex.P10, printed FIR and forwarded the same to theJudicial Magisterial Court as well as higher officials throughP.W.13. https://hcservices.ecourts.gov.in/hcservices/ (i) P.W.16, Inspector of Police, on receipt of FIR, took upinvestigation, visited the scene at about 5.15 pm, preparedobservation mahazar, Ex.P2 in the presence of P.W.7 and anotherand drew rough sketch, Ex.P11. He collected some blood stainedstraws and plain straws. He also collected the belongings of thedeceased under mahazar, Ex.P4. He conducted inquest over the deadbody in the presence of Panchayatdars and prepared inquest report,Ex.P12. He took photographs of the dead body as well as the scenethrough P.W.12, photographer. He sent the dead body for postmortem through P.W.14, with requisition for conducting postmortem, Ex.P7. He recorded the statements of P.Ws.1 to 7 andanother. (j) In the meantime, P.W.11, Doctor conducted autopsy overthe dead body and found the following injuries :"(i) Cut injury starting from left to right side ofthe neck just above the collar bone only skin andmuscle in attached with neck at the C.7 vertebra atright side of the neck; (ii) Trachea, all major blood vessels are cut throughand through, all the neck muscles are cut exceptminimal right sternocledomortid muscle lower level;and(iii) Spinal card and Vertebra are cut at the levelyof C.7. Only minimal skin about 12 cm from anteriorto posterior with muscle attached in the right sideof the neck with the body."He opined in the post mortem certificate, Ex.P8 that the deceasedwould appear to have died of shock and haemorrhage due to cutinjury in the neck.(k) P.W.16, Investigating Officer, in furtherance of hisinvestigation, sent the material objects for chemical examinationand obtained chemical analyst's reports. He also recorded thestatements of other witnesses. On 21.3.2005, at about 7 pm, hearrested the accused and recorded the confession statement of theaccused in the presence of P.Ws.8, 9 and another. The admissibleportion of the confession statement of the accused is Ex.P13.Based on the confession, he recovered M.O.1 and other materialsunder mahazar, Ex.P6. Thereafter, he remanded the accused tojudicial custody. After recording the statements of otherwitnesses and completing investigation, he laid the final reporton 30.3.2005. 4. The case was committed to Court of Sessions and chargeswere framed and since the accused denied his complicity in theoffence, the case was taken up for trial. In order to https://hcservices.ecourts.gov.in/hcservices/ substantiate the charges levelled against the accused, theprosecution examined P.Ws.1 to 16, filed exhibits P1 to P17 andmarked material objects M.Os.1 to 15.5. The accused was questioned under Section 313 Cr.P.C. as tothe incriminating circumstances that appeared against him, and theaccused denied the same. Neither any witness was examined nor anydocumentary evidence was produced on his side.6. The learned trial judge, on perusal of the materials, oraland documentary and after hearing both sides, convicted andsentenced the accused as aforementioned. Hence, the presentappeal.7. The learned counsel for the appellant/accused assails theconviction and sentence on the following grounds, viz. (a) except the evidence of P.W.1, no otherevidence of eye witnesses was available, as they haveturned hostile and therefore, it is not safe toconvict the accused based on the evidence of P.W.1,since P.W.1 is an interested witness, as he happenedto be the son of the deceased; and (b) the delay of three hours in lodging thecomplaint, which was not properly explained, is fatalto the case of the prosecution.8. Per contra, learned Additional Public Prosecutorretaliates that(a) the evidence of P.W.1, who has witnessed theoccurrence, cannot be brushed aside merely on theground that P.Ws.2 to 6, other eye witnesses, haveturned hostile and that he is an interested witness;and(b) immediately after the occurrence, P.W.1 wentto his house which is about 2 kms from the scene ofoccurrence in a bicycle and thereafter, he went tothe Police Station, which is 15 kms away from hisresidence and therefore, there was a delay of 3 hoursin lodging the complaint, which cannot be stated tobe a delay affecting the case of the prosecution. 9. We have perused the entire materials on record and heardthe submission of both sides.10. The question that arises for our consideration is as towhether the prosecution has established its case beyond allreasonable doubts. https://hcservices.ecourts.gov.in/hcservices/

11. Before proceeding on the issue in question, we have toanalyse whether the death of the deceased was due to homicidalviolence. The doctor, P.W.11, who conducted autopsy, has statedin his evidence that the deceased died of shock and haemorrhagedue to cut injury in the neck and also issued Ex.P8, post mortemcertificate describing the injuries found on the dead body.Hence, we do not have any difficulty in holding that the death ofthe deceased was due to homicidal violence.12.1. Even though the learned counsel for the appellantcontends that the evidence of P.W.1 is not trustworthy since he isan interested witnesses, it is settled law that relationship isnot a factor to affect the credibility of a witness and it is moreoften than not that a relation would not conceal actual culpritand make allegations against an innocent person. 12.2. In Dalip Singh v. State of Punjab, (AIR 1953 SC 364),the Apex Court laid down as hereunder:-"26. A witness is normally to be considered independentunless he or she springs from sources which are likelyto be tainted and that usually means unless the witnesshas cause, such as enmity against the accused, to wichto implicate him falsely. Ordinarily a close relationwould be the last to screen the real culprit and falselyimplicate an innocent person. It is true, when feelingsrun high and there is personal cause for enmity, thatthere is a tendency to drag in an innocent personagainst whom a witness has a grudge along with theguilty, but foundation must be laid for such a criticismand the mere fact of relationship far from being afoundation is often a sure guarantee of truth. However,we are not attempting any sweeping generalisation. Eachcase must be judged on its own facts. Our observationsare only made to combat what is so often put forward incases before us a general rule of prudence. There is nosuch general rule. Each case must be limited to and begoverned by its own facts."12.3. Again in Masalti v. State of U.P., AIR 1965 SC 202,the Apex Court observed that:"But it would, we think, be unreaonsable to contend thatevidence given by witnesses should be discarded only onthe ground that it is evidence of partisan or interestedwitnesses. .... The mechanical rejection of suchevidence on the sole ground that it is partisan wouldinvariably lead to failure of justice. No hard and fastrule can be laid down as to how much evidence should beappreciated. Judicial approach has to be cautious in https://hcservices.ecourts.gov.in/hcservices/ dealing with such evidence; but the plea that suchevidence should be rejected because it is partisan cannotbe accepted as correct."12.4. Further, in Pulicheria Nagaraju v. State of A.P.(2006) 11 SCC 444, it has been observed:"... that evidence of a witness cannot be discardedmerely on the ground that he is either partisan orinterested or closely related to the deceased, if it isotherwise found to be trustworthy and credible. It onlyrequires scrutiny with more care and caution, so thatneither the guilty escape nor the innocent wronglyconvicted. If on such careful scrutiny, the evidence isfound to be reliable and probable, it can be acted upon.If it is found to be improbable or suspicious, it oughtto be rejected. Where the witness has a motive tofalsely implicate the accused, his testimony shouldhave corroboration in regard to material particularsbefore it is accepted."12.5. From the above well settled principles, it is clearthat the evidence of P.W.1 cannot be discarded merely on theground that he is closely related to the deceased. However, thetestimony of P.W.1 should be corroborated by material particularsbefore it is accepted as trustworthy. 12.6.1. Consequently, the next question that arises for ourconsideration is whether the evidence of P.W.1 stands corroboratedby material particulars or not? 12.6.2. As per the evidence of P.W.1, there was a quarrelbetween the deceased and the accused at about 11 am, as theaccused brought about 10/12 goats through the standing crops inthe field of the deceased and the same was resisted by thedeceased. Hence, the accused scolded the deceased with abusivewords and the deceased reacted and shouted against the accused. Inthe said hassle, the accused threatened the deceased that he woulddo away with him and thereafter, he left the place with his goats.Around 12/12.30 pm, the accused rushed to the scene of occurrencewith aruval, M.O.1 and delivered cut on the neck of the deceased.12.6.3. The evidence of P.W.1 with regard to the overt act ofthe accused is corroborated by the medical evidence, P.W.11coupled with the post mortem certificate, Ex.P8. Therefore, wehave no hesitation to hold that the evidence of P.W.1 istrustworthy and credible. https://hcservices.ecourts.gov.in/hcservices/

13.1. However, a question arises for our consideration as towhether the accused is entitled to the benefit of Exception 1 toSection 300, IPC or not?13.2. As per the evidence of P.W.1 there was a wordy quarrelsince the accused brought his goats through the standing crops inthe field of the deceased. But, as per the confession statementof the accused, in the wordy quarrel, the deceased used abusivewords against the accused and his mother, which provoked theaccused to inflict cut injury on the deceased. 13.3. Even though there was no material to prove that thedeceased was the aggressor, since it is settled law that theinadmissible portion of the confession made under Section 27 ofthe Evidence Act, can be relied upon for the benefit of theaccused, we traversed into the original records wherein we foundthat when the accused took the goats through the standing crops inthe field of the deceased, the deceased objected to the same byuttering that "the accused has no sense and he had just grown uplike a beast and should not have grazed the goat in the cropfield". That apart, the deceased has also went to the extent ofabusing the mother of the accused in filthy words. Therefore, itappears that the accused has lost his self control and gotprovoked, which was also witnessed by P.W.1. 13.4. We, therefore, have no hesitation to hold that theaccused is entitled to the benefit of Exception I to Section 300,IPC.14. With regard to the delay of three hours in lodging theFIR, it is evident from the records that immediately after theoccurrence, P.W.1 went to his house which is about 2 kms from thescene of occurrence in a bicycle to inform his mother and brother.Thereafter, he went to the Police Station which is situated about15 kms from his residence. Therefore, we are satisfied that itwould definitely take three hours for P.W.1 to reach the policestation. Further, the fact that P.W.1, who happened to be the sonof the deceased and having seen the occurrence, would have becomeperturbed cannot be ruled out. Moreover, the distance between thescene of occurrence and the Police Station as well as the factthat P.W.1 went to the house by bicycle and thereafter, to thePolice Station have not been controverted by the learned counselfor the accused. Hence, the contention that the delay in lodgingthe complaint would be fatal to the case of the prosecution is notsustainable. https://hcservices.ecourts.gov.in/hcservices/

15. In the facts and circumstances of the case, as there isno pre-meditation on the part of the accused in committing theoffence and only on account of the conduct of the deceased inuttering abusive words against the accused and his mother, theunfortunate occurrence had taken place, we are of the consideredopinion that the offence under Section 302, IPC has not been madeout and the act committed by the accused is only culpable homicidenot amounting to murder. Accordingly, the appellant/accused isconvicted under Section 304 Part I, IPC, and the sentence of lifeimprisonment is modified to rigorous imprisonment for seven years.The appeal is partly allowed.kplSd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1. The Sessions Judge, Nagapattinam.2. The Judicial Magistrate No.I, Nagapattinam.3. The Inspector of Police, Nagore Police StationThittachery Police Station.4. The Superintendent Central Prison, Cuddalore.5. The District Collector, Nagapattinam.6. The Director General of Police, Mylapore Chennai 4.7. The Chief Judicial Magistrate, Nagapattinam8. The Public Prosecutor, High Court, Madras.•1 cc to Mr. Veerakathiravan, Advocate SR No. 35766Crl.A.No.840 of 2007.RA(CO)SR/23.7.2008