Dhanabal & Ors. v. State by Inspector of Police Deevatti Patti Police Station Salem District

Bail slipThe Appellants/ Accused namely 1) Dhanabal 2) Kunju @ Venkattanwere directed to be realised on bail in Crl.MP.No.1 of 2006 in Crl. Appeal No.747 of 2006 on the file of the High Court Madras.IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 27.10.2009CORAM:THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESANCrl.A.No.747/20061.Dhanabal2.Kunju @ VenkattanAppellants VsState by Inspector of Police Deevatti Patti Police Station Salem District Respondent Prayer:- This Criminal Appeal is filed against the judgement of the learned Additional District and Sessions Judge cum Special Judge forEC Act Cases, Salem, convicting them under Section 304(1) of IPC and sentencing them to undergo four year Rigorous Imprisonment each and to pay a fine of Rs.500/- each in default to undergo RigorousImprisonment for two months each in SC.No.355/2005 dated 29.8.2006.For Appellant :Mr.R.RajanFor Respondent :Mr.Hasan Mohammed Jinnah, APP ORDER This Criminal Appeal is filed by A1 and A2 in SC.NO.355/2005 on the file of the learned Additional District and Sessions Judge CumSpecial Judge for EC Act Cases, Salem against the judgement dated29.8.2006, convicting each of them under Section 304(1) of IPC and sentencing each of them to undergo four years Rigorous Imprisonmentand to pay a fine of Rs.500/- in default to undergo RigorousImprisonment for two months.

The case of the Prosecution is as follows:-1st Appellant/A1 is the son of the 2nd appellant/A2. The absconding accused against whom, the case was split up is the another son of the2nd Appellant. PWs.1 and 2 are the brothers of the deceasedLakshmanan. PW.3 is the Village Administrative Officer of https://hcservices.ecourts.gov.in/hcservices/ Daviskottai Village. On 7.7.1997, PW.3, his Assistant and the RevenueInspector of Kadayampatti Village had gone to Vannankuttai on getting information that A1, A2 and the absconding accused were cutting the trees standing in the Government Poramboke land and prevented them from further cutting the trees. PW.3 had called PW.2 Govindaraj, who was engaged in the agricultural operations and enquired about the act of the accused in cutting the trees. On seeing the same, the absconding accused Venugopal rushed towards him to attack PW.2.However, PW.2 ran away from the said place chased by the absconding accused and on seeing it, PW.1 and the deceased Lakshmanan tried to rescue their brother. At that time, the absconding accused attackedPW.1 with a knife on his right head and cut him on his back side of the head. A2 assaulted with a wooden log on the back and left hand of the deceased. A1 assaulted the deceased with a wooden log on his head and on his left hand and on the left side of his head. Onhearing their cry, the other family members rushed to the spot andon seeing them, all the accused ran away from the place of occurrence.

PW.1 and the deceased sustained bleeding injuries and were taken to a private hospital by name Bethalla Hospital in Vadakkupattiand therefrom, they were taken to Omalur Government Hospital. PW.1was admitted as an inpatient and as the condition of the deceased was serious, he was taken to Salem Rajaji Government Hospital, where he was pronounced dead at about 2.30 p.m.

On receiving intimation from the Omalur GovernmentHospital, PW.8 Sub Inspector of Police attached to the DeevattipattiPolice Station proceeded to the said Hospital and recorded the statement of PW.1 and returned back to the Police Station and submitted the same to the Inspector of Police. Ex.P9 is the said intimation received from the Hospital. PW.10 Inspector of Police on receiving the said statement registered a case in Cr.339/1997 and prepared Ex.P15 First Information Report. Thereafter he proceeded to the place of occurrence at 5.30 p.m. and in the presence of the witness PW.4 and one veerappa Mudaliar prepared observation mahazarunder Ex.P2 and a rough sketch under Ex.P16. On 8.7.1997 at 9.00 a.m.to 11.00 a.m. he conducted inquest on the body of the deceasedLakshmanan in the presence of the witnesses and Ex.P17 is the inquest report. Then he sent the body for postmortem through PW.7 PoliceConstable.

PW.9 The Doctor Vallinayagam attached to the SalemGovernment Hospital conducted autopsy on 8.7.1997 at 11.45 a.m. and he has found the following injuries on the body of the deceased asper Ex.P11:-1.An oblique lacerated injury present on right side of forehead 3.5 cms x 0.5 cm x bone deep. 2. Fracture dislocation of left humerus in its middle1/3rd. https://hcservices.ecourts.gov.in/hcservices/

3. Contusion right cheek, 3 cms x 2 cms x 1 cm. 4. Contusion right temporal region of scalp, 8cms x 5 cmsx 0.5 cm Dard red. 5. Fissured fracture of right temporal bone present 8 cmsin length.

Subdural and subarchnoid hemorrhage present over bothcerebran hemispheres.

Fracture middle cranial fossa present 3 cms in length. The above injuries are antemortem in nature. The visura from the body of the deceased has been taken and sent for chemical examination and Ex.P13 is the chemical analysis report. After receipt of the said report, PW.9 opined that the deceased haddied of head injuries sustained by him. 6. In the mean while, on 11.7.1997 both the accused surrendered before the learned Judicial Magistrate, Bhavani and after getting the order from the learned Magistrate both the accused were taken to the police custody by PW.10. On 22.8.1997 at 7.00 p.m. on the confession statement given by A1 and A2, weapons Mos.1 to 3 viz. Koduval and wooden log were seized from the house of A1 under Ex.P5and P6 mahazars. Mos.4 to 7 Clothes were recovered from the body of the deceased. Thereafter, PW.10 had examined some more witnesses and after completing the investigation laid charge sheet against both the accused on 27.8.1997 for the offence under Sections 302 read with 34and 324 read with 34 of IPC. 7. In order to substantiate the charges levelled against the accused, the prosecution examined as many as 10 witnesses and also marked 17 documents and 7 MOs. PW.1 was the first informant and the younger brother of the deceased and PW.1 to 3 are the eye witnesses. It is also to be noted that PW.1 was the injured witness.

The trial court, after hearing the arguments advanced oneither side and looking into the materials available, found the evidence of the eye witnesses to be credible and cogent and took the view that the Prosecution has proved the case beyond reasonable doubt and found the accused/appellants guilty under Section 304(1) of IPCand awarded punishments as stated above, which is challenged in this Criminal Appeal.

This court heard the learned counsel on either side and also perused the materials placed on record.

Mr.R.Rajan, the learned counsel for the Appellants has submitted that the evidences of the Prosecution witnesses PWs.1 to 3are contradictory to each other with regard to the overt-actattributed to each of the accused and the medical evidence is also not consistent with the oral testimony of the witnesses and no credibility can be placed on their evidence in view of the https://hcservices.ecourts.gov.in/hcservices/ contradictions and discrepancies in the testimony. The learned counsel would submit that the earlier report given by PW.1 to OmalurPolice Station was suppressed and Ex.P1 is not the first information report as alleged by the Prosecution and it cannot be relied upon, when PW.1 has denied knowledge about its contents. He would submit that PW.1 has deposed that the weapons were thrown by the accused persons in the place of occurrence itself before they left the scene of occurrence, whereas the investigating officer had recovered the weapons on the confession allegedly given by the appellants in their house and in such circumstances, recovery of the weapons has not been proved by the Prosecution. The learned counsel would further contend that the genesis and origin of the occurrence has been suppressed and true facts have not been presented before the court.

The learned counsel for the Appellants would mainly contend that according to PW.1, he had gone to the Omalur PoliceStation and reported the incident and only thereafter, they have proceeded to the Omalur Government Hospital and therefore, an adverse inference ought to have been drawn against the Prosecution for withholding the FIR lodged by PW.1.

On the other hand, Mr.Hasan Mohammed Jinnah, the learnedAdditional Public Prosecutor for the Respondent has submitted that only PW.1 has stated so and a perusal of the entire evidence, it appears that he has made the said statement in a state of confusion, as he was also heavily injured and the defence witnesses having been not clarified the said point from the police officers especially PW.8who recorded the statement of PW.1, no adverse infe13. The learned Additional Public Prosecutor placed reliance on the decisions of the Honourable Supreme Court rendered in the cases of Pothakamuri Srinivasulu Alias Mooga Subbaiah Vs. State of AP[2002-SCC-Cri-1337], Ramesh Baburao Devaskar and others Vs. State of Maharashtra [2007-13-SCC-501] and Vikram and others Vs. State of Maharashtra [2008-1-SCC-Cri-362] in support of his aforesaid contention.

At the outset, every information cannot be said to be aFIR, simply because it is first in point of time. In the case reported in 2007-13-SCC-501 cited supra, the Honourable SupremeCourt has held that an information received by the officer in charge of a Police Station for commission of an cognizable offence must be reduced into writing so as to enable him to start investigation and lodging of a FIR is necessary for setting the criminal law in motion. It further held that the FIR should not be too sketchy so as to make initiation of investigation on the basis thereof impossible.

In the present case, PW.1 has answered to the question put to him in the cross examination by the defence in the affirmative and in the plurality that they have informed the police https://hcservices.ecourts.gov.in/hcservices/ about the incident and they were asked to come to the Hospital. Except the above said affirmative statement, PW.1 has not given anyother details as to who actually went inside the Police Station and to which officer they informed about the incident. In the absence of any evidence in that regard, no inference could be drawn that the complaint with all details had been lodged with the said police. Insuch a state of affairs, it cannot be said that the First InformationReport has been suppressed by the Police.

There cannot be any dispute regarding the presence ofPW.1 in the place of occurrence, as he has got injured in the said incident. The testimony of the injured is of great value in the murder case and the injuries confirmed the presence of PW.1 on the spot. The genesis of the occurrence started with PW.2 with whom therevenue officials had enquired about the unauthorised act of the accused in cutting the trees and therefore, the presence of PW.2 is also cannot be doubted. PW.3 is the Village Administrative Officer, who had come to the place of occurrence on getting information along with the revenue inspector and they have actually resisted the said cutting of trees. This factum is not disputed by the accused and no material has been elicited in the cross examination denying the presence of PW.3 on the spot. The presence of Pws.1 to 3 in the place of occurrence appears to be natural and there are good reasons for them to be present at the time of occurrence. The testimony ofPWs.1 to 3 does not suffer from any inherent infirmity or intrinsic contradictions and their testimony cannot be discarded merely becausePWs.1 and 2 are related to the deceased.

In a recent judgement of Honourable Supreme Courtrendered in the case of Indra Pal Singh Vs. State of UP [2009-SC-958], it is held that the evidence of eye witnesses when found to be consistent and trustworthy corroborated by medical evidence cannot be discarded on the ground of insignificant contradictions in their testimony nor can it be rejected being testimony of the interested witnesses. There may be some minor discrepancies in the evidence ofPW.3 in relation to the role played by each of the accused in attacking the deceased and PW.1, but on the said ground his evidence cannot be rejected.

The Honourable Supreme Court has consistently held that discrepancies which do not go to the root of the matter and shake the basic version of the witness cannot be given much importance, more so, when all the important 'probabilities factor' echoes in favour of the version narrated by the witnesses. Their Lordships in the case of Bhoginbhai Hirjibhai Vs. State of Gujarat [AIR-1983-SC-753] has enumerated the following points:-i.by and large, a witness cannot be accepted to possess aphotographic memory and to recall the details of an incident. It is not as if a video tape is placed on the mental screen; https://hcservices.ecourts.gov.in/hcservices/ ii.ordinarily, a witness is overtaken by events. Thewitnesses would not have anticipated the occurrence having an element of surprise. The mental faculties, therefore, cannot be expected to be attuned to absorb the details.iii. The powers of observation differ from person to person. What one may notice, another may not. Anobject or movement might emboss its image on oneperson's mind, whereas it might go unnoticed on the part of the another; iv.by and large people cannot accurately recall aconversation and reproduce the very words used by themor heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect awitness to be a human tape recorder;v.in regard to the exact time of the incident or the duration of an occurrence, usually people make their estimate by guesswork on the spur of the moment at the time of interrogation. One cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time sense of an individual, which varies from person to person; vi.ordinarily, a witness cannot be expected to recall accurately the sequence of the events which take place in rapid succession or in a short time span. A witnessis liable to get confused or mixed up when interrogated later on; vii.a witness though wholly truthful is liable to be overawed by the court atmosphere and the piercing cross examination made by a counsel and out of nervousness, mixes up facts, gets confused regarding the sequence of events, or fill up details from imagination on the spur of the moment. "

It is relevant to point out that the discrepancies in matters of detail always occur even in the evidence of truthful witness because of natural differences in faculties of individuals. The credibility of the Prosecution witnesses should be subjected to judicial evaluation of totality and not isolated scrutiny. Theevidence of PW.1 to 3 is in accordance with the medical evidence and is also corroborated by recovery of weapons of attack in pursuance of disclosure statement of both the accused and in such circumstances, there is no reason to disbelieve their evidence. https://hcservices.ecourts.gov.in/hcservices/

The learned counsel for the Appellants commented upon the conduct of PW.3 Village Administrative Officer in not taking any steps to prevent the assault and also not reported the matter to the Police immediately after the occurrence. PW.3 in his cross examination has stated that since he thought that it was an ordinary quarrel between two groups, who are related to each other, he did not think of giving a complaint to the police and he had come to know about the death of the deceased only later. Every person who witnesses an incident of assault reacts in his own way. Some may shout for help and some become speechless and some may run away to keep themselves as far removed from the spot as possible and yet others may rush to the spot to the rescue of the victim. There is no such rule of natural reaction to discard the evidence of PW.3 on the ground that he did not react in a particular manner. Therefore, the contentions raised by the learned counsel for the Appellants does not merit acceptance.

The Trial Court has accepted the testimony of the eyewitnesses as true and worthy of credence and held that it was the matter in between the two groups involved in quarrel and the mistakes in the statement of the witnesses in narration of the minor facts are natural. The court below has taken into consideration the above facts and come to the conclusion that commission of the act by accused would come under Exception 4 to Section 300 of IPC and convicted the accused for the offence punishable under Section 304(1)and not under Section 302 of IPC. The judgement of the court below isa well reasoned one and I do not find any valid ground to dislodge the said conclusion arrived at by the court below and to interfere with the sentence imposed on the accused by the court below.

In the result, the criminal appeal fails and the same is dismissed. The conviction and sentence imposed on the accused are confirmed and the bail granted in favour of the Appellants is cancelled. The court below shall take steps to secure their presence and commit them to prison to undergo the remaining period of sentence. Srcm Sd/Asst. Registrar/true copy/Sub Asst. RegistrarTo:1.The Additional District and Sessions Judge cum Special Judge for ECAct Cases, Salem, The Principal Sessions Judge, Salem, https://hcservices.ecourts.gov.in/hcservices/

2. The Public Prosecutor, High Court, Madras 3. The Judicial Magistrate Omalur, Salem District.4.-do- The Chief Judicial Magistrate Salem.5. The Superintendent Central Prison Coimbatore.6. The District Collector, Salem,7. The Director General of Police, Myalpure Chennai.48. The Inspector of Police, Deevattipatti Police Station SalemDistrict..+ 1 CC to Mr. R. Rajan Advocate SR.No.56749 Order in Crl.A.No.747/2006AKR(CO)VC(9.11.2009)