Ramaraj v. The Inspector of PolicePadalur Police Station

Jayalakshmi over her head causing head injuries, that in view of thehead injuries sustained, despite treatment, Jayalakshmi died on18.9.2002 at about 6.00 p.m., that A-3 in furtherance of the commonintention acted along with other two accused, that they have alsocriminally intimidated all the inmates of the house and therefore,they should be dealt with under Section 452, 326, 324, 302, 302 r/w34 and 506(ii) I.P.C.3.The learned Sessions Judge, perusing the records and theother materials produced, satisfied prima facie and therefore, framedcharges against the accused, but all the accused refused to pleadguilty, when questioned, resulting trial, examining the witnesses.4.On behalf of the prosecution, 16 witnesses have beenexamined seeking aid from 25 documents and M.Os.1 to 9. On behalf ofthe defence, Ex.D1 was marked.5.The evaluation of the above materials, in the touchstone ofcredibility, brought to surface the guilt of A-1 & A-2 alone, whereasit failed to prove the guilt of A-3. The learned Sessions Judge,while assessing the evidence, came to the conclusion, that themotives projected by the prosecution, for the commission of theoffence by the accused are proved, though different for each accused,that the oral evidence of P.Ws.1 & 2 supported by the oral evidenceof P.Ws.5 & 6 proved the guilt of A-1 and A-2 alone beyond allreasonable doubt, though originally the injured have reported to thedoctor that they have been assaulted by one known person and twounknown persons, that only due to the head injuries inflicted by A-1& A-2, Jayalakshmi succumbed to those injuries, despite thetreatment, for which they should be held responsible, that there isno reason to disbelieve the injured eyewitnesses in view of the fact,the delay in preferring the F.I.R., if any, is acceptably explainedby the prosecution and that the oral evidence is fully corroboratedby the medical evidence also. But at the same time, the learnedSessions Judge took the view, since at no point of time A-3 wasindicated, as known person and subsequently also prior to trialthough, he was identified before the trial Court, the benefit ofdoubt should be given to him. Thus, giving the benefits of doubt, heacquitted A-3 from all the charges, convicted A-1 & A-2 underSections 452, 324 and 302 I.P.C., sentencing them to undergo, threeyears R.I. for the offence under Section 452 I.P.C.; one year R.I.for the offence under Section 324 I.P.C.; and life imprisonment forthe offence under Section 302 I.P.C. and imposing a fine of Rs.500/-for the offence under Section 452 I.P.C. in default one month R.I.and a fine of Rs.1000/- in default three months R.I for the offenceunder Section 302 I.P.C. against the second accused alone. 6.A-1 by name M.G. @ Rajendran though had been convicted andsentenced for the offences under Sections 452, 324 and 302 I.P.C., as https://hcservices.ecourts.gov.in/hcservices/ on this date, he has not preferred any appeal.7.The prosecution, though had let in evidence implicating A-3, and despite the eyewitnesses have spoken about the overt acts saidto have been committed by him, aggrieved by the acquittal of A-3, hasnot preferred any appeal, questioning the correctness of theacquittal. A-2 alone had challenged the conviction and sentence inthis appeal. In this view of the matter, we are called upon todecide, whether the conviction and sentence slapped upon A-2/appellant, is sustainable or not, whether the conviction is basedupon unassailable legal evidence or it could be assailed because ofthe absence of the legal evidence. It seems, the third accused hadbeen acquitted on false notion, not properly appreciating theevidence, which cannot be the sole consideration, for acquitting A-2,if it is further shown the acquittal is incorrect, though it is notchallenged. In the same manner, only on the ground the convictionslapped upon A-1 has not been challenged, it is also not legallysound to say that the same result should visit upon A-2/appellant.8.Facts necessary for the disposal of this appeal as culledout from the prosecution evidence:(1)Thangavel (P.W.1), Kowsalai (P.W.2) are the husband andwife and their son is Pitchaipillai (P.W.3). Pitchaipillai's wife isJayalakshmi. All the four were residing at Nattarmangalm Village, intheir farm house when the incident narrated in the final report hadtaken place. All the accused in S.C.No.60/2003 are also theresidents of Nattarmangalam. (2)A-3 and P.W.3 contested for the post of President of thePanchayat, resulting enmity. A-2 unable to maintain himself, havingquarreled with his wife, borrowed a sum of Rs.5,000/- from P.W.1 andnot only that, without discharging the said debt, he demanded afurther sum of Rs.10,000/-, which was refused, resulting a warninggiven by A-2 to P.W.1. A-1 had some problem with his wife andtherefore, he requested P.W.1, to reconcile the same, refusal alsoresulted grievance. Thus all the accused had some motive againstP.W.1's family. (3)On 12.9.2002, P.W.1, P.W.2, their daughter in law by nameJayalakshmi, were sleeping in their farmhouse while P.W.3 had been tomanure shop, which is in the village. At about 11.15 p.m. or so,during night hours, P.Ws.1 & 2 heard the barking of the dog, andsuspecting something, they searched, found none, went to sleep in theroom once again. In the adjacent room, Jayalakshmi was sleeping. Atthe top of the farm house, a tube light was burning throughout thenight. At about 11.30 p.m., the accused appellant and two otherstrespassed into the room where P.Ws.1 & 2 were sleeping, assaultedthem with iron rod, causing injuries. Immediately all of them came https://hcservices.ecourts.gov.in/hcservices/ out from the room crying and hearing the noise of P.Ws.1 & 2, theirdaughter in law Jayalakshmi came out, from her room. On seeing thedaughter in law, the accused have assaulted her also using the ironrod and other weapons, causing head injuries and other injuries.Thereafter all the accused ran away from the scene of crime with theweapons. (4)P.W.1, who lost his dhothi during the assault, makingnoise, ran to the house of P.W.5-Alagiri. P.W.5 and P.W.6. who areneighbours hearing the noise of P.W.1 came out and provided a dhothifor P.W.1. On their enquiry, P.W.1 revealed to them, that he and hisfamily members were assaulted by the accused. Immediately all of themreached the scene of crime, where they have seen P.W.2 andJayalakshmi with bleeding injuries. P.W.5 sent a message to P.W.3,through P.W.7. Upon reaching the scene of crime, when P.W.3 enquiredhis father-P.W.1, he informed to him that he was assaulted by all theaccused. Thereafter, P.W.3 took all the injured, to the GovernmentHospital, Perambalur, where P.W.10 was working as Medical Officer. (5)P.W.10 examined P.Ws.1 & 2 on 13.9.2002 at about 4.15 a.m.At the time of the examination, he has noticed the injuries upon thepersons viz., P.Ws.1 & 2, which are incorporated in Exs.P8 & P9.Jayalakshmi was admitted in the Government Hospital, Perambalur, atthe first instance, then taken to Trichy, where despite treatment,there was no improvement and therefore, she was taken to a privatehospital, where PW.14 examined her and issued Ex.P16 report.(6)After admitting the injured in the hospital, the same wasinformed to Padalur Police Station, where P.W.13 was working as SubInspector of Police. Immediately, P.W.13 went to the hospital,examined P.W.1, recorded his statement Ex.P1, on which basis a casewas registered originally under Sections 452, 324, 506(ii) I.P.C.,submitted the printed F.I.R. (Ex.P.13) to the Court, marking thecopies to the higher authorities also. (7)Thereafter, P.W.13 went to the scene of crime at about12.00 noon, prepared observation mahazar-Ex.P2, Sketch-Ex.P14 in thepresence of P.W.4 and another witness. He also examined P.Ws.1 to 3,recorded their statements. Jayalakshmi, who was admitted in theTrichy Hospital succumbed to the injuries, which was informed to thepolice on 18.9.2002 on which basis, the case was altered underSection 302 I.P.C. for which Ex.P.15 was submitted to the JudicialMagistrate. Then the case was taken for investigation by theInspector of Police, P.W.15. (8)Upon receipt of the copy of FIR., PW.15, taking the casefor investigation, went to Trichy Government Hospital conductedinquest over the body of Jayalakshmi in the presence ofPanchayatdars, prepared the inquest report-Ex.P17. He has also https://hcservices.ecourts.gov.in/hcservices/ examined P.Ws.1 to 3, recorded their statements. In order toascertain scientifically the cause of death of Jayalakshmi, the bodywas sent for postmortem with requisition-Ex.P.19 through P.W.9. (9)Upon the receipt of the request, and on identification ofthe body, P.W.12 conducted postmortem over the body of Jayalakshmi,which revealed the following injuries, which are incorporated in thepostmortem certificate-Ex.P.11.1.A sutured wound, 9 cm in length, on the saggitalplane, on the left side of frontal and parietalregions of the scalp, 5 cm away from the midline, 4 cmaway from left eyebrow on removal of sutures, edgesirregular, 0.5 cm in breadth bone deep.2.A sutured wound 4 cm in length on the centre offrontal region of scalp, obliqely placed 6 cm awayfrom glabella. On removal of the sutures:- edgesregular, 0.5 in breadth, bone deep.3.A curved sutured wound, 24 cm in length on theright side of frontal, parietal, temporal region ofthe scalp, 6 cm away from the eyebrow and 1 cm abovethe right ear. On removal of the sutures:- edgesregular, 1 cm in breadth, exposing brain matter. Theunderlying bones of size 12 cm x 10cm and meninges aremissing. Bruising of dark red, subdural hemorrhageand subarachnoid hemorrhage on both cerebralhemisphere laceration of left temporal lobe ofcerebrum with intra-cranial hemorrhage. Softening ofthe brain matter present. Tissued and comminutedfracture of anterior and both middle cranial fossacommunicates with entire fracture.4.Dark brown colour abrasions, 4 cm x 1 cm on theupper part of outer aspect of right thigh. The abovementioned wounds are antemortem. (10)Viscera preserved was sent for chemical examination throughCourt and the chemical examination report is Ex.P12. A-3, Balusamysurrendered in another case was secured on P.T. Warrant in thiscase. Upon examination, he has given the confession Ex.P.18.Pursuant to the investigation, A-1 & A-2 were also arrested in thepresence of P.W.8 and another and they have also given the confessionand the admissible portion of the same is Ex.P.5. Pursuant to thesame, M.O.2 and M.O.3 were recovered under the cover of mahazar-Ex.P.6. P.W.15 has given a requisition to the Court to send thematerial objects recovered and submitted to the Court, for chemicalexamination under-Ex.P.22, which was conceded under Ex.P.23 resulting https://hcservices.ecourts.gov.in/hcservices/ report Exs.P.24 and P.25. Meanwhile, since P.W.15 was transferredfurther investigation was taken by P.W.16. At the request of theInvestigating Officer, under Ex.P.19, the Judicial Magistrate,Perambalur recorded the statements of P.Ws.1 & 2 under Exs.P.20 andP.21. (11)P.W.16 examined the doctor, perused the previous investigationdone by P.W.15 which brought to surface that all the accused should havecommitted the offence, and in this view, a final report came to be filed,leading to trial ending in conviction as stated above, which is impugnedonly by A-2 in this appeal.9.Heard the learned Senior Counsel for the appellant,Mr.AR.L. Sundaresan and the learned Addl. Public Prosecutor, Mr.N.R.Elango.10.Mr. AR.L.Sundaresan, the learned senior counsel appearingfor the accused/appellant attempted to assail the conviction of theappellant on the following grounds viz:- (a)that the names of all the accused are notmentioned in the F.I.R. though the accused were knownto the victims viz., P.Ws.1 & 2; (b)that the inordinate delay in giving the F.I.R.and sending the same to the Court spontaneously createdoubt, which benefit should go to the accused;(c)that the F.I.R. relied on by the prosecutionviz., Ex.P.1 is doubtful, in the sense, it may not bethe original F.I.R., since there is some evidenceindicating, even before Ex.P.1, statements should havebeen recorded from the witnesses and if at all thatshould be the original F.I.R. and the suppression ofthe same should lead to doubting the genesis of thecase;(d)that after investigation commenced, if at allEx.P.1 should have been procured;(e)that the weapons said to have been recovered onthe basis of the confession is not proved and alsodoubtful;(f)that at each and every stage, the prosecutionattempted to improve the case thereby giving anunquestionable chance to doubt about the veracity ofthe witnesses; https://hcservices.ecourts.gov.in/hcservices/ (g)that on the same material produced by theprosecution, despite the fact there is implication ofA-3 also. he has been acquitted and the same kind ofbenefit should be extended to the accused/appellant,since he is also standing in the same footing;(h)that there would not have been any possibility forthe witnesses to identify the assailants since therewas no light or proper light in view of the admittedfact, the incident had taken place during night hours;(i)that there is inconsistency in the statementsgiven to the doctor as well as given to the policeregarding the assailants, whether they are known orunknown; (j)that there is no specific overt act against theaccused/appellant, leading to irresistible conclusionthat the injury said to have been inflicted by himmust be the cause for the death of Jayalakshmi thattoo with intention and if at all, in case the evidenceof the prosecution is to be believed, the offence willnot come under Section 302 I.P.C., whereas it shouldcome under lesser offence.Elaborating the above points, taking us through the evidence indetail, and pointing out the contradictions and omissions, as ifavailable in the prosecution witnesses, a vociferous argument wasmade by the learned senior counsel to discharge the accused/appellantfrom the charges, for which he was convicted.11.The learned Additional Public Prosecutor responding theabove submissions would submit, that practically there is no delay inpreferring the complaint and even if there is any delay, the same isexplained, that the fact P.Ws.1 and 2 have stated to the doctor thatthey have been assaulted by one known person and two unknown persons,may not be a ground to eschew their oral evidence as unworthy sincethey have categorically deposed about the actual involvement of theaccused/appellant being the injured witnesses, which is corroboratedby the neighbours also, that small contradictions and omissionsshould not be magnified only for the purpose of creating doubt thatthe wrong acquittal of A-3 cannot be a ground to acquit the 2ndaccused/appellant also since those grounds on which basis A-3 wasacquitted, will not be available legally to the accused appellant.Thus opposing the submissions made by the learned senior counsel forthe appellant and taking us through the oral evidence, documentsrelied on, including the Judgments of the trial Court, whereunassailable reasons are assigned, for the conviction of A-2, astrenuous submission was made for sustaining the conviction. https://hcservices.ecourts.gov.in/hcservices/

12.The accused/appellant has been convicted and sentenced toundergo imprisonment for the offences under Sections 452, 324, 302I.P.C. It is the case of the prosecution that A-2 assaulted P.W.1with an iron rod causing injuries, as if grievous one. The trialCourt convicted A-2/appellant only under Section 324 I.P.C. forcausing simple injuries, with the iron rod. It is the further case ofthe prosecution, that this accused also assaulted Jayalakshmi causinghead injuries, which also terminated her life prematurely. For doingthese acts, it is the case of the prosecution, that the accused alongwith two others trespassed into the house of P.W.1, having made thepreparation for causing hurt. Therefore, before going into thequestion, who caused simple injuries to P.W.1 and who caused headinjuries to the deceased, let us see whether P.W.1 sustained injuriesand Jayalakshmi died due to head injuries, in order to bring the actsof the assailants, voluntarily causing hurt and committed murder withan intention. 13.The doctor, who had examined P.W.1 viz., P.W.10 issuedwound certificate, for the injuries sustained by P.W.1 under Ex.P8.There was four injuries. According to the opinion of the doctor,three injuries are simple in nature and one injury is grievous.However, the trial Court has held the accused/appellant is answerableonly for the simple injury. The injuries sustained by P.W.1 even asspoken by him and the nature of injuries sustained by him are notdisputed, though the dispute is who had caused those injuries. Inthis view, it is to be held that in the incident which took place on12.9.2002 at about 11.30 p.m., P.W.1 sustained simple injuries,which should have been caused by the deadly weapon such as an ironrod.14.At the request of the investigating officer, P.W.12conducted postmortem over the body of Jayalakshmi on 19.9.2002.Though the incident had taken place on 12.9.2002 at 11.30 hours,Jayalakshmi succumbed to the injuries only on 18.9.2002. As indicatedby us early, four injuries were noticed over the body of Jayalakshmi.The doctor opined in Ex.P.11, that the deceased died due to Craniocerebral wounds, which is the result of head injuries. When thedoctor has detailed, about the injuries and has given opinion aboutthe cause of death, not disputed. Therefore, it is to be held thatJayalakshmi died due to culpable homicide i.e. because of the assaultwith deadly weapons over her head. It is also not the case of theappellant before us, that Jayalakshmi died due to some other causeand therefore, slapping the conviction against the accused underSection 302 I.P.C. is erroneous, on fact. Under the above saidcircumstances, we reiterate and conclude that Jayalakshmi died, dueto homicidal violence amounting to murder. For sustaining the injuryby P.W.1 and for sustaining the head injury by the deceased, if it isproved, that A-2 also contributed his act, directly or in furtherance https://hcservices.ecourts.gov.in/hcservices/ of the common intention, the accused/appellant is answerable eitherunder Section 302 or 302 r/w 34 I.P.C. and 324 I.P.C. and there couldbe no escape.15.Ex.P.1 moved the wheels of the investigation. The complaintEx.P.1 is attacked on the ground that it should have been procuredafter the commencement of the investigation, suppressing the earlierstatement given by the injured and therefore, the foundation of thecase itself, shaky and doubtful, thereby seeking the benefit ofdoubt. As spoken by P.W.13, he recorded the statement from P.W.1 on13.9.2002 and on that basis, Ex.P.13 was prepared and submitted tothe Court. It is also the case of P.W.1 that he was examined by thepolice and the police had recorded the statement obtained hissignature. As seen from Ex.P.1, it was recorded on 13.9.2002 at 11.00a.m. At the time of recording the F.I.R. or at the time when thedoctors have informed the police, there was no death. The originalF.I.R. was registered only under Sections 452, 324 and 506(ii) I.P.C.The F.I.R so registered reached the Court on 14.9.2002 at about 1.00p.m. as recorded by the Learned Sessions Judge, in his Judgment atparagraph-4. True, there was some slackness because of the nature ofthe injuries and the offence reported at that time. Therefore, it isnot possible to say, that taking advantage of this delay, a newF.I.R. was prepared or procured, substituted, suppressing the earlierstatement given by the injured. Ex.D1 also fails to come to the aidof the appellant, though the same is having separate serial number,in view of the fact, the original F.I.R. in this case as well asEx.D1 contained the same averments, without any change. In this view,we are unable to accept the contention of the learned senior counselfor the appellant, that original complaint should have beensuppressed and Ex.P.1 should have been secured later and that is whytwo printed F.I.Rs were prepared in different forms. Theinvestigating officer, has explained how this mistake had occurred,which deserves acceptance, in the absence of any contradictions oradditions available in the averments available in both the documents.P.W.1 has categorically stated, that Padalur Sub Inspector came tothe hospital, recorded the statement, identifying Ex.P.1. During thecross examination by A-1, he has stated that he does not know, whatwas written in the document in which the police obtained hissignature. He has further stated, that on the next day, he wasexamined by the police at about 8.00 a.m. Taking advantage of theabove evidence, the learned senior counsel argued that the previousstatement recorded should have been suppressed, which we are unableto agree. After all P.W.1 is a rustic village man, and it is notproper to expect mathematical precision, about the time and thecontents of the document, when he was cross examined. Therefore, theevidence so given by P.W.1, in our considered opinion, failed toerase Ex.P.1, or even failed to create any reasonable doubt. In thisview, we conclude there is no delay in giving the information to thepolice, though there is some delay in the printed F.I.R. reaching the https://hcservices.ecourts.gov.in/hcservices/ Court and that delay could be ignored, because of the nature of theoffence then reported and recorded. Thus, it is proved when thevictims had the opportunity to say, at whose hands they have sufferedthe injuries, they have clearly stated the names of the accused,including the appellant, in which we are unable to entertain anydoubt.16.The main thrust of the learned senior counsel for theappellant, was that P.Ws.1 & 2 would not have identified A-2 at all,at the time of the assault and that is why at the earliestopportunity, when there was no intervention of the police, they havestated specifically to the doctor that they were assaulted by "oneknown person" and "two unknown persons" and this being the position,convicting the accused/appellant, who was described as unknownperson, is legally not sound. It is an admitted fact, that all theaccused belong to the same village and the accused also known toP.Ws.1 & 2. Therefore, it is the submission of the learned seniorcounsel for the appellant that if A-2/ appellant had attacked P.W.1,P.W.2 and Jayalakshmi, they would not have reported to the doctorthat they were assaulted by 'one known person' and 'two unknownpersons' since reported so this would clinchingly prove the absenceof the second accused/appellant, at the time of the incident and onthis ground alone, A-2 is entitled to an acquittal. In this view, itis the further submission of the learned senior counsel thatsubsequent improvement was made in Ex.P1 and therefore, relying onEx.P1, even for corroboration, though it is not substantial evidence,as if the 2nd accused assaulted P.Ws.1 & 2 and the deceased may not beproper. The argument so advanced, though appeared to be attractive,at the first instance, by giving our deep consideration, consideringthe duty of the doctor, in addition to the judicial precedent, aswell as the provisions available in the Madras Medical Code, we areunable to subscribe our view. 17.Ex.P8 is the wound certificate issued by P.W.10 for theinjuries sustained by P.W.1. Ex.P.9 is the wound certificate issuedby P.W.10 for the injuries sustained by P.W.2. In Ex.P.8, it isstated "alleged to have been assaulted by one known person and twounknown persons at 11.45 p.m. on 12.9.2002 (,Uk;g[ fk;gpahy; moj;Jfj;jpahy; btl;odh;) at his Kattukottai, Nattarmangalam" (emphasissupplied). In Ex.P.9, it is stated "alleged to have been assaulted byone known person and two unknown persons (fz;iz fl;o thapy; Jzpitj;J milj;J flg;ghiw. fk;gpahy; moj;jdh;) at her Kattukottai" (emphasissupplied).18.When P.W.1 was cross examined by A-2 & A-3, he hasspecifically stated that he informed the doctor that he was assaultedby two known persons and one unknown person which reads in Tamil, https://hcservices.ecourts.gov.in/hcservices/ "lhf;lhplk; vd;idj; bjhpe;j 2 egUk;. milahsk; bjhpahj xUegUk; jhf;fpdhh;fs; vd;W brhy;ypa[s;nsd;"But P.W.2 during the cross examination by the first accused wouldadmit, that she has reported to the doctor when enquired about theincident, that she was assaulted by one known person and two unknownpersons. The doctor has also given as if P.Ws.1 & 2 have reported tohim that they were attacked by one known person and two unknownpersons. 19.On the basis of the above materials, Mr.AR.L.Sundaresan,the learned Senior Counsel argued that the earliest statements givento the doctor by P.Ws.1 & 2 that they were assaulted by 'two unknownpersons' should be given due importance concluding that thesubsequent evidence given must be an improvement, after theinvestigation has commenced. To appreciate this argument, we have tosee the place of the incident. 20.In the house of P.W.1 as per Ex.P.14, there are two rooms;one on the west and another on the east. In the western room, P.Ws.1& 2 were taking their bed, whereas in the eastern room, Jayalakshmiwas sleeping. It is not the case of the prosecution or it is not inevidence from the mouth of P.Ws.1 & 2 also, that inside their room,the light was burning or they had sufficient light, to identify thepersons exactly. Therefore, there might not have been any possibilityfor P.Ws.1 & 2, at the first instance to properly identify theassailants, though there was a possibility to identify by figure,from the natural light available, since it is also said, the door waskept opened. In this view, they might have stated originally, at thetime of assault, one was known and others unknown. Immediately, afterthe assault, P.Ws.1 & 2 came out, and the second assault took placein front of the house, where a tube light was burning, at the top ofthe building as proved, not under challenge. Therefore, there wasevery possibility for P.Ws.1 & 2, to identify the assailants viz., A-1 & A-2. However, when there was an opportunity to sayempathetically, who are the assailants, they failed to do so andtherefore, we have to see whether that failure will alone give achance for the accused appellants to crack the prosecution case, inorder to come out. In this context, we have to see, what is the dutyof a doctor, whether any information given by the injured wouldamount to statement admissible in evidence or whether that could bethe basis for conviction or acquittal, as the case may be.21.The Madras Medical Code (Vol.I) Section 10 paragraph-622gives guideline or instructions to the doctor, how to fill up thecolumns, in the wound certificate. Para-622 (vi) reads:"Medical officer should ascertain and incorporate in https://hcservices.ecourts.gov.in/hcservices/ the certificate only the alleged cause as to themanner in which the injuries were inflicted, theweapon used and the time."The Medical Officer should ascertain the cause of the injury, weaponused, time, etc. thereby showing no power is vested upon the MedicalOfficer, to ascertain from the injured or the person accompanied theinjured, who is the cause for the assault, whether it is known orunknown even. The doctor is concerned, to ascertain and incorporatein the certificate, how the injuries were inflicted and what is theweapon used, including the time, so as to find out, at later point oftime, whether the injury would have been caused by the weaponproduced on behalf of the prosecution said to have been used by theassailants on the basis of the recovery, if any. In this view, if thedoctor had incorporated about the assailants as 'known' or 'unknown'or even naming the person, that can be ignored, which appears to bethe dictum of the Apex Court also.22.A division Bench of this Court in Basheer v. State 1993(Crl.L.J. 2173), while considering the duty of a Medical Officerwhile preparing the wound certificate or making note in the AccidentRegister has stated that,"Medical Officers should note whether assailants wasknown or unknown person though they are not expectedto note name of the person"It is further observed, that there is no harm if the doctor hasreported, whether the injured sustained injury by a known person orunknown person. This ruling may not be an authority to say that ifthe doctor has noted in the wound certificate that the injured wasassaulted by unknown person, subsequently if a case is filed againsta known person, noting in the A.R. should be taken, as substantiveevidence entitling him to an acquittal. Therefore, in our consideredopinion, the ruling brought to our notice, by the learned seniorcounsel for the appellant, fails to advance the case of the defence,just because of the fact the doctor has entered in the woundcertificate 'as unknown person', the accused is entitled to anacquittal and the genesis of the case should be doubted.23.On the other hand, Mr.N.R.Elango, the learned AdditionalPublic Prosecutor argued that the noting of the doctor in the woundcertificate as 'known or unknown' should have no significance, sincethat noting will not amount to a statement given by the injured. Forthis view, our attention was drawn to a decision of the Apex Court inP. Babu & others v. State of Andhra Pradesh (AIR 1994 SCC 424). Inthe case involved in the above decision also, the same kind ofsituation had arisen. In the injury certificate, the doctor has notedthat the injured was said to have been stabbed by somebody, not https://hcservices.ecourts.gov.in/hcservices/ specifically stating known person or unknown person. On that basis asubmission was made before the Apex Court that as the deceased hadstated at the first instance 'somebody has stabbed him', it should beheld the deceased was not aware as to who stabbed him. The ApexCourt, rejecting the said contention, as seen from para-6 of theJudgment at Page 428, has held thus: "It is a matter of common knowledge that such entry inthe injury certificate does not necessarily amount toa statement. At that stage the doctor was required tofill up that column in a normal manner and it was notthe duty of the doctor to enquire from the injuredpatient about the actual assailants and that theinquiry would be confined as to how he received theinjuries namely the weapons used etc." 24.If we read the above passage, coupled with Madras MedicalCode, the irresistible conclusion that should be drawn legally isthat the noting of the doctor, in the wound certificate or AR cannotbe taken as the substantial evidence to fix the culpability or nonculpability and the certificate has to be relied on, only for thepurpose of ascertaining the nature of the injuries, the weapon usedand the time alone. In the light of the above discussion, in ourconsidered opinion, though P.W.2 has admitted, that she has stated tothe doctor that she was assaulted by 'one known person and twounknown persons', it would not amount to a statement coming withinthe meaning of substantial evidence, and this being the legalposition, as held by the Apex Court, on the basis of the noting madeby the doctor, in Exs.P8 and P9, it is not at all possible to doubt,about the genesis of the case, which is described in the complaint-Ex.P.1, which set the law on motion or leading to the presumptionthat P.Ws.1 and 2 would not have seen the appellant/accused, at thetime of assault.25.It is the well settled principles of law, that rejectingthe ocular evidence, on the ground of contradiction with medicalevidence, as well as on the ground that the eye witness is highlyinterested person is incorrect, as ruled by the Apex Court in Stateof Rajasthan vs. Hanuman (2001 (1) SCC 337), wherein it is also heldas follows:"Evidence of eyewitnesses cannot be discarded merelyon the ground that they are relatives of the deceased.Normally close relations of the deceased are notlikely to falsely implicate a person in the incidentleading to the death of the relation unless there arevery strong and cogent reasons to accept suchcriticism". https://hcservices.ecourts.gov.in/hcservices/

26.Viewing the case from this angle also, the inconsistencyregarding 'known' of 'unknown' may not loom large, since in ourconsidered opinion, the evidence given by P.Ws.1 & 2, which issupported by the oral evidence of P.Ws.5 & 6 are quite convincing,being natural, in view of the further fact, P.Ws.1 & 2 are injuredwitnesses. Admittedly, P.Ws.1 & 2 are the victims in the hands ofthe assailants and they are competent to say, how, in whose handsthey sustained injuries. There may be a chance because of the motive,to implicate the person, who is unwanted, taking advantage of thefact, that the injured sustaining injuries from some other handsalso. In this case, to bring this case, with latter part, we areunable to find any circumstances, though there is a motive that motivemay be the cause for the assault and certainly that motive may not be thecause, for implicating the accused, since the victims have no grievanceagainst the accused, whereas it is vice versa. 27. As far as A-2/appellant is concerned, the motive allegedis, that even without discharging the earlier debt, he demandedRs.10,000/-, refusal, caused grievance, resulting warning by theaccused/appellant, which is well spoken by P.Ws.1 & 2. By goingthrough the cross examination of A-2 and A-3, we are unable to findeven any suggestive denial regarding the warning given by A-2, asspoken by P.W.1. Therefore, as held by the trial Court, it is to beheld that there was motive for assaulting. Even assuming that therewas no motive, if the incident is otherwise proved acceptably, thatitself is sufficient to slap conviction and sentence and in this viewwe have to scan and appraise the oral evidence of P.Ws.1, 2, 5 & 6. 28.P.W.1 has categorically deposed before the trial Court,that the second accused Ramaraj assaulted him with iron rod over hishead, as well assaulted his daughter in law also. His evidence issupported by another injured witness viz., P.W.2, who has stated,that Ramaraj assaulted her husband, over his head as well asassaulted her daughter in law over her head, using iron rod thoughthe iron rod was not identified by her. Thus, P.Ws.1 & 2 haveclinchingly spoken about the specific overt act committed by A-2/appellant, in causing injury to P.W.1 as well as causing head injuryto Jayalakshmi, which led to her death also, as indicated by us.P.Ws.1 & 2 have stated that A-1 & A-2 have assaulted Jayalakshmi,over her head causing injuries. The doctor, P.W.12 had noticed morethan 2 injuries, over the head of Jayalakshmi. True, P.Ws.1 & 2 havenot stated, with certainty which injury was caused by which accused.An argument was advanced that when there was no medical evidence orspecific evidence connecting the second accused that he is the causefor the death, convicting him under Section 302 I.P.C. is legallyerroneous. When two persons jointly attacked a person, that tooduring night hours, it is unfair to expect from any witness to say,which injury was caused by which accused, and if at all, there couldbe a general statement. Both the accused jointly, in furtherance of https://hcservices.ecourts.gov.in/hcservices/ the common intention have trespassed into the house of P.W.1, makingprior preparation, attacked Jayalakshmi, choosing the vital part ofthe body viz., head and this act of A-1 and A-2 should come infurtherance of the common intention, and therefore, the convictionslapped upon the accused appellant under Section 302 I.P.C. could beconfirmed even under Section 302 r/w 34 I.P.C. in which there cannotbe any illegality. In this view of the matter, the absence ofevidence from the mouth of P.Ws.1 & 2, which injury inflicted bywhich accused cannot be a ground, for acquitting the appellant, sinceit is proved that he had also caused head injury. Similarly somecontradiction or omission said to have been committed by P.Ws.1 & 2as elicited from the cross examination of P.W.15 also fails to createany doubt in our mind, to doubt about the veracity of the evidence,given by them.29.P.W.s.5 & 6 have no axe to grind against the accused,including the appellant. Admittedly, they have not seen the actualassault and they came to the spot immediately after the incident,that too, on information given by P.W.1, going to their place,followed by the incident continuously. As rightly submitted by thelearned Additional Public Prosecutor, inviting our attention toSection 6 of the Indian Evidence Act, the evidence given by P.Ws.5 &6 are quite relevant, since the fact disclosed by them comes withinthe meaning of 'form part of the same transaction'. Section 6 of theIndian Evidence Act reads:"Facts which though not in issue, are so connectedwith a fact in issue as to form part of the sametransaction, are relevant, whether they occurred atthe same time and place or at different times andplaces."It is the specific case of the prosecution that immediately after theassault by the accused, in continuity P.W.1 rushed to P.Ws.5 & 6,upon enquiry informed about the assailants viz., the accused. If thatis so, that comes within the meaning of relevancy of facts ascontemplated under Section 6 of the Indian Evidence Act coming withinthe meaning of res gestae i.e. declarations and incidentsaccompanying or explaining the fact in issue or which are deemed toconstitute the fact in issue. When P.Ws.5 & 6 have spoken about theinformation furnished by P.W.1, which is also the case of P.W.1, incontinuation of the incident, which had taken place on 12.9.2002 at11.30 p.m., it is not challenged and in this view, we are of theconsidered opinion that the evidence given by P.Ws.1, 5 & 6 about theinvolvement of the accused should come within the meaning of resgestae.30.P.W.1 would state, that apprehending danger to his life,after the assault, he ran to the adjacent land in order to inform the https://hcservices.ecourts.gov.in/hcservices/ same, that too nude, since he lost the Dothi in the incident. He hasfurther stated, that he informed Alagiri-P.W.5 about the incident,further testified that a Dothi was given to him by P.W.5. Theevidence so given by P.W.1, not at all questioned, though it issuggested to P.W.1, that he was assaulted by some unknown thieves,for that the accused cannot be held responsible. But the factremains, P.W.1 ran to the place of P.Ws.5 & 6 unchallenged. P.W.5 hasalso testified that on 12.9.2002 at about 12.00 midnight, P.W.1 camein nude crying and upon enquiry, he informed, mentioning the names ofthe accused, that they have assaulted. He has further stated, whenthey returned to the scene of crime, the accused were not there. Itis the evidence of P.W.6 also. When there was no interference byanybody even before the matter was informed to the doctor, P.W.1 hadreported to P.Ws.5 & 6 that he and his family members were assaultedby the accused, which includes the appellant also. It is suggested toP.Ws.5 & 6 that the above evidence is given only at the instance ofthe police. The denial of this relevant fact spoken by P.W.1, coupledwith the unacceptable suggestion compels us, to think unhesitatinglythat P.W.1 should have informed to P.Ws.5 & 6 that they were thevictims of the assault, in the hands of the accused. Thus the oralevidence of P.Ws.5 and 6 also corroborates the oral evidence ofP.Ws.1 & 2. Therefore, we are unable to find any semblance of doubt,to ignore the evidence of P.Ws.1, 2 5 & 6. 31.The trial Court, appreciating the oral evidence coupledwith the medical evidence, has reached in our considered opinion, anunerring conclusion, in convicting the accused/appellant, though itappears the acquittal of A-3 may not be proper, which we are notconcerned in this appeal. As we have already adverted to above, theacquittal of A-3 on improper ground, will not come to the aid of A-2to get the same benefits. If the acquittal is accepted to becorrect, which cannot be so in this case, then only the said benefitcould be extended to A2, not otherwise.32.An attempt was made to doubt the prosecution case on thebasis of the recovery of the weapons said to have been used by theaccused viz., M.Os.2 & 3. The Inspector of Police-P.W.15 would state,that on the basis of the confession said to have been given by thefirst accused viz., Ex.P5 M.Os.1 & 2 were recovered under Ex.P6 on20.9.2002. Chemical Analyst's Report would indicate, that one of theiron rods contained human blood, though grouping test wasinconclusive. P.W.1 would state, that the accused have left iron rodsin their house itself, since he had raised alarm after the assault.Therefore, as rightly submitted by the learned senior counsel for theappellant, there is some inconsistency regarding the recovery, thatcannot be denied. The mistake or defective investigation committedby the investigating officer, because of the above inconsistency, inour view, may not have the power of extinguishing the inspiring oralevidence of P.Ws.1, 2, 5 & 6, which implicated the accused appellant, https://hcservices.ecourts.gov.in/hcservices/ for the reasons assigned by us supra. Therefore, even assuming thatthe recovery of the weapons is not proved, that may not loom large,since the evidence would indicate, as opined by the doctor also, notchallenged, Jayalakshmi should have sustained injuries by the assaultwith an iron rod. The fact P.Ws.1 & 2 have deposed that the accusedhave trespassed into the house, assaulted them, stands proved and inthis view, it is to be held the offence under Section 452 I.P.C. alsostands proved as concluded by the trial Court.33.In the light of the above discussion and having regard tothe facts and circumstances, in our deep consideration, theprosecution has established the guilt of the accused beyond allreasonable doubt, which was properly appreciated by the trial Court,which should receive our approval not disapproval, thereby makingthis appeal, unacceptable. 34.In order to bring the act of the accused/appellant otherthan under Section 302 I.P.C., as per the last submission of thelearned senior counsel for the appellant, half heartedly, we areunable to find any reason. If the offence is to be brought down,ignoring 302 I.P.C. then the act committed by the accused appellantshould come within the exceptions where it is stated culpablehomicide is not murder. The acts of the accused/appellant fail tocome within the meaning of provocation or right of private defenceor without premeditation said to have been taken place in a suddenfight in the heat of passion upon a sudden quarrel etc. andtherefore, bringing the accused either under Section 304 Part-I orPart-II I.P.C. is not legally possible, as rightly recorded by thetrial Court. 35.The result, therefore, is the appeal is dismissed as devoidof merits, confirming the conviction and sentence of the learnedDistrict Sessions Judge, Perambalur in S.C.No.60/2003.Sd/Asst.Registrar/true copy/Sub Asst.Registrarkv https://hcservices.ecourts.gov.in/hcservices/ To1. THE DISTRICT & SESSIONS JUDGE,PERAMBALUR.2. THE SUPERINTENDENT,CENTRAL PRISON, TRICHY.3. THE INSPECTOR OF POLICE,PADALUR POLICE STATION.4. THE PUBLIC PROSECUTOR,HIGH COURT, MADRAS.5. THE DIRECTOR GENERAL OFPOLICE, MYLAPORE,MADRAS 600 004.6. THE DISTRICT COLLECTOR,PERAMBALUR.TEJ (CO)km/31.10. C.A.NO.1393 OF 2004