Ganesan v. State by Inspector of Police,Nagore Police Station,Nagapattin

B A I L S L I PThe Appellant/Accused-1, viz., Ganesan age 52 yearsS/o.Sadasivam, and Accused-7, Viz., Duraiarasan, age 32 years,S/o.Mani were directed to be released on bail as per the order of thisCourt dated 2.2.2005 in Crl.MP.No.12520 & 12523/04 in Crl.RC.No.2054and 2055 of 2004.IN THE HIGH COURT OF JUDICATURE AT MADRASDATE: 23.7.2009CORAMTHE HON'BLE MR.JUSTICE M.JEYAPAULCrl.R.C.Nos.2054 and 2055 of 2004Ganesan..Petitioner in Crl.R.C.No.2054/2004First AccusedDuraiarasan..Petitioner in Crl.R.C.No.2055/20047th Accusedvs. State by Inspector of Police,Nagore Police Station,Nagapattinam District. Cr.No.328 of 2002..Respondent in both the petitions Complainant in do.Criminal Revision Cases are filed under sections 397 and 401Cr.P.C to set aside the order of conviction passed by theAdditional/Assistant Sessions Judge, Nagapattinam in S.C.No.124 of2003 dated 12.4.2004 and partly modified by the Principal District andSessions Judge, Nagapattinam in C.A.No.51 of 2004 dated 3.11.2004. For petitioners: Dr.A.E.Chelliah, Senior Counsel for Mr.P.KalidasFor respondent: Mr.N.Kumanan, Govt. Advocate (Crl. Side) https://hcservices.ecourts.gov.in/hcservices/ COMMON ORDERThe petitioner in Crl.R.C.No.2054 of 2005 is ranked as A1 and thepetitioner in Crl.R.C.No.2055 of 2004 is ranked as A7. The Trial Courtconvicted the first accused for offences under sections 148, 341, 307of the Indian Penal Code and sentenced him to undergo two yearssimple imprisonment, one year simple imprisonment and three yearsrigorous imprisonment respectively. The Trial Court convicted the 7taccused for offences under sections 147, 341 and 323 of the IndianPenal Code and sentenced him to undergo one year simple imprisonmenteach and also convicted him under section 307 read with section 149 ofthe Indian Penal Code and sentenced him to undergo two years rigorousimprisonment. The appellate court modified the conviction recorded andsentence imposed and convicted the first accused for offence undersection 307 of the Indian Penal Code and sentenced him to undergothree years rigorous imprisonment and also convicted him for offenceunder section 324 of the Indian Penal Code and sentenced him toundergo one year rigorous imprisonment and convicted the 7th accusedfor offence under section 323 of the Indian Penal Code alone andsentenced him to undergo three months simple imprisonment. 2. On the side of the prosecution, 18 witnesses were examined,nine documents were marked and four material objects were marked.Neither oral nor documentary evidence was let in on the side of thedefence.3. The case of the prosecution is that coconut trees belonging toPanchayat Board were auctioned and Radhakrishnan, PW13 was declared asthe highest bidder. As PW13 attempted to pluck coconut from the treeshe had taken on auction, the first accused objected to it. When thematter was reported to the Panchayat President Subramanian, PW9, heconvened the panchayat. Saravanan, PW3 and Subramanian, PW4 were sentto bring the first accused to the panchayat. Thereafter,Panneerselvam, PW1 and Murugesan, PW2 were sent to the house of thefirst accused to bring him to the panchayat. It is the further caseof the prosecution that the first accused attacked PW4 with billhookon his head with an intention to cause his death. He also attackedSaravanan, PW3 with billhook and attempted to cause his death. The 7thaccused, on his part, launched attack on PW1 Panneerselvam and causedsimple injury. 4. PW1 lodged the complaint, Ex.P1 with the Sub Inspector ofPolice Balakrishnan, PW14, who registered a case in crime No.328 of2002 under sections 147, 148, 341, 323, 324 and 307 of the IndianPenal Code and prepared printed FIR, Ex.P4 and despatched the sameto the Judicial Magistrate concerned. He also submitted a copythereof to the Inspector of Police. Chandrasekaran, the Inspector ofPolice, PW18, who took up the case for investigation, rushed to the https://hcservices.ecourts.gov.in/hcservices/ scene of occurrence, prepared observation mahazar, recovered materialobjects found over there and also sent the injured to the hospital fortreatment. PW18, having completed the investigation, filed finalreport before the learned Judicial Magistrate. 5. Though the Trial Court was pleased to convict the firstaccused for offences under sections 148, 341 and 307 of the IndianPenal Code and the 7th accused for offences under sections 147, 341,323 and 307 read with section 149 of the Indian Penal Code, theappellate court chose to modify the conviction and convicted the firstaccused for offence under sections 307 and 324 of the Indian PenalCode and sentenced him to undergo three years and one year rigorousimprisonment respectively and convicted the 7th accused for offenceunder section 323 of the Indian Penal Code alone and sentenced him toundergo three months simple imprisonment. 6. Learned Senior Counsel appearing for the petitioners wouldvehemently submit that PW14 had allegedly gone to the scene ofoccurrence at 3.45 am and inspected the scene of occurrence andexamined the witnesses over there. But, the investigating officer,PW18 would depose that he proceeded to the scene of occurrence at 6.30am and having prepared the rough sketch, recovered billhook, stick andstone from the scene of occurrence. It is his submission that ifthose material objects were lying over the place of occurrence, PW14would have definitely recovered those material objects. PW1, 3 and 4have stated before the Doctor who treated them that about ten personscame with stick and aruval and attacked them. But, in fact, eightpersons alone were implicated in this case. Copy of the accidentregister would disclose that one Manoharan brought PW3 and 4 to thehospital for treatment. PW5 on his part would say that it was he whotook PW3 and 4 to the hospital for treatment. PW6 would depose thatthere was no person in the name of Manoharan in his village. He wouldalso submit that Ex.P5 and P7 copy of the accident register do notdisclose the fact that P.Ws.1, 3 and 4 were brought for treatment onthe basis of the medical memo issued by PW18. PW18 has categoricallydeposed that PW1 accompanied him. But, PW1, during the course ofexamination before the Trial Court, has come out with a version thathe did not know when actually the Inspector of Police, PW18 arrived atthe scene of occurrence. PW1 could not come out with the name of theperson who actually drafted the first information report. PW10 andPW11 are found to be relatives of PW8. There is also a delay of fivehours in despatching the first information report. Such an inordinatedelay was not explained by the prosecution, he would submit. Thetestimony of the injured witnesses cannot be taken as a gospel truth.In view of the above material contradictions, he submits that thefirst and seventh accused also are entitled to acquittal. 7. Per contra, the learned Government Advocate (Criminal Side)appearing for the State would submit that the injured witnesses https://hcservices.ecourts.gov.in/hcservices/ P.Ws.1, 3 and 4 have categorically spoken to the attack launched by A1and A7. The copy of the accident register and X-ray report issued bythe Doctors, PW15 and PW17 would corroborate the injured witnesses.It is his further submission that in villages, almost all the personswould be related in one way or the other. Therefore, he submits thatthere is no warrant for interference with the verdict of the appellatecourt. 8. PW4 has categorically spoken to the murderous attack launchedby A1 on his head with billhook, M.O.2. The injury sustained by himwas corroborated by the medical evidence in the form of extract of theaccident register, Ex.P5. PW15 has spoken to the grievous injuryfound on the left side of the head of PW4. PW3 has deposed that hewas attacked by A1 with billhook, M.O.2. Dr.Karthikeyan, PW15, whoissued copy of the accident register, Ex.P6, has spoken to the factthat PW3 sustained simple injury on the backside of his head. 9. PW1, who also sustained injury has also deposed before thecourt that A7 attacked him with stick and stone and caused simpleinjury. Dr.Rajakumarasamy, PW16, who issued the copy of the accidentregister, Ex.P7, has spoken about the simple injury sustained by PW1on his leg. P.Ws.1, 3 and 4 have corroborated each other the attacklaunched by A1 and A7 respectively on them. The medical evidencereferred to above also supports the injured ocular witnesses in thiscase. 10. It is true that PW14 has come out with a version that hedescended on the scene of occurrence at 3.45 am itself. In fact, hehad inspected the scene of occurrence, but, he had not recovered anymaterial object. It is not his case that no material object was foundover there. The court cannot forget the fact that the occurrence tookplace during night. Further, PW14 might have been under theimpression that the seizure of the material objects is the duty of theinvestigating agency. Therefore, the non-seizure of the materialobjects, in the above facts and circumstances, by PW14, who was notthe investigating officer in this case, does not go to the root of thematter. PW18 would state that he was accompanied by PW1. PW1, on hispart would depose that he did not accompany PW18 and was not aware asto when PW18 arrived at the scene of occurrence. This is only a pettycontradiction which cannot be given much credence when there isinjured ocular witnesses to speak to the occurrence.11. The copy of the accident register would disclose that PW3 andPW4 informed the Doctor that ten persons with stick and aruval causedinjuries. Firstly, the occurrence had taken place during night time.More than half a dozen persons have participated in the occurrence.It is quite natural for a witness who received murderous attack tocome out with an average estimate of the persons who launched attackat the scene of occurrence. Therefore, there is nothing wrong in PW3 https://hcservices.ecourts.gov.in/hcservices/ and PW4's informing the Doctor who treated them that about ten personsparticipated in the occurrence. Even otherwise, such a mistakecommitted by PW3 and PW4 with respect to number of personsparticipated in the occurrence is found to be quite natural. 12. PW3 and PW4 have, of course, informed the Doctor that oneManoharan brought them for treatment. PW6 has stated that there wasno such person in the name of Manoharan in the village. PW18 wouldstate that he issued medical memo to PW3 and PW4 for taking treatmentin the hospital. The point for determination is whether the accusedlaunched murderous attack and caused injury. The aforesaid minordiscrepancy does not tilt the case of the prosecution in favour of theaccused. In fact, PW5 says that it is he who took PW3 and PW4 tohospital for treatment. Probably his name might have been wronglywritten as Manoharan in the accident register as there is no person inthe name of Manoharan in the occurrence village. The fact is that theoccurrence had taken place during night and the injured had rushed tothe hospital. The delay of about five hours in despatching the firstinformation report does not create a dent in the case of theprosecution. It is true that PW1 was not in a position to identifythe person who actually drafted the first information report. Thequestion is who actually is the author of the first informationreport. Therefore, it is immaterial as to who drafted it at theinstance of PW1. 13. As rightly pointed out by the learned Government Advocate(Criminal Side), majority of the persons in the village would berelated to each other. No wonder PW10 and PW11 are related to PW8.There is no rule that the evidence of a relative of a witness shouldbe completely disbelieved. 14. It has been laid down in NARAYAN KANU DATAVALE AND OTHERS v.STATE OF MAHARASHTRA (1997 CRI.L.J. 1788) by the Bench of the BombayHigh Court as follows:-" The short question in this appeal is as towhether the testimony of the three eye-witnessesnamely Tukaram, Janardhan and Laxmi who are thebrother, son and the mother of the deceasedrespectively, inspires confidence or not? Ouranswer to the same is in the negative. Whilegiving the said answer, we are conscious of thefact that Tukaram and Laxmi are injured witnessesaccording to the prosecution and normally, thisCourt is loath to reject the testimony of aninjured witness. However, there is no immutable https://hcservices.ecourts.gov.in/hcservices/ rule of appreciation of evidence that the evidenceof injured witnesses should be mechanicallyaccepted as gospel truth for injuries may only atthe best ensure presence of a witness but, are noguarantee of his credibility and truthfulness. Itis an elementary norm of appreciation of evidencethat before the testimony of even an injuredwitness can be accepted, it has to pass the test oftruthfulness and should be in consonance withprobabilities. We are reinformed in our view, bythe decision of the Allahabad High Court, reportedin 1984 All LJ 1316 (Vijay Shankar Misra v. State)wherein in paragraph 22 their Lordships haveobserved thus:-"It is no doubt correct that if a witness isinjured, then his presence on the spot at the timeand place of occurrence is prima facie establishedbut for basing conviction solely on the evidence ofan injured witness, is necessary that the injuredwitness must be held to be a wholly reliablewitness. Wherein in a case there is the soleevidence of the injured witness against the accusedand if it is shown that there is material infirmityand falsity in some part of his evidence, then itwill not be at all safe to convict the accusedsolely on the evidence of the injured witnessrelying upon the eye-witness's account given by himwithout independent corroboration by materialevidence."15. That was a case where the evidence of the injured witnessesdid not inspire confidence. The court has cautioned that the injuredwitnesses cannot be mechanically accepted. The credibility andtruthfulness of such a witness will have to be, of course, decidedbeforeever accepting their evidence. But, the rudimentary principlesof law that the court should show reluctance to reject the testimonyof the injured witnesses has been reiterated in the aforesaidjudgment. In the instant case, the truthfulness and the credibilityof P.Ws.1, 3 and 4 which also received corroboration from medicaltestimony could not be challenged inspite of the rigorous cross-examination. The courts below have rightly placed full reliance uponsuch injured witnesses in this case. 16. Of course, it is not safe to base conviction on theinterested testimony of a witness. The court must search forcorroboration from independent sources beforeever accepting theinterested testimony of a witness. The injured witnesses cannot be https://hcservices.ecourts.gov.in/hcservices/ termed as partisan interested witnesses. The injured witnesses are,of course, interested in prosecuting the real culprit who causedinjury to them and attempted to murder them. The evidence of a witnesscannot be simply rejected on the sole premise that he is a closerelative of the victim. If the evidence of the close relative of thevictim is projected, the court will have to adopt a careful approachwhile analysing his evidence before accepting the same. In this case,the evidence of PW10 and PW11 who are related to PW8 are not somaterial inasmuch as the attack launched by A1 and A7 is clearlyspoken to by the injured witnesses P.Ws.1, 3, 4 and 6. 17. The learned Senior Counsel appearing for the petitionerscited a decision of this court in THYAGARAJAN v. STATE REP BYINSPECTOR OF POLICE, THANJAVUR RURAL (1995 (2) MWN (Crl.) 37). 18. That was a case where there was a direct conflict between theocular and medical evidence about the consciousness of the victim andthe confession given by him. A lot of material infirmities was foundduring the course of investigation. Therefore, in that case, thiscourt chose to disbelieve the version of the prosecution and recordedacquittal of the accused in a case of murder. 19. Every infirmity in the process of investigation and the flawcommitted by the investigating agency will not shake the foundation ofthe prosecution. The material infirmities and the substantial flawswhich go to the root of the case alone will cut at the root of theprosecution. In this case, as already pointed out by this court,there is no material contradiction in the evidence of the witnessesspoken to about the attack launched by A1 and A7. The lapse on thepart of the investigating agency also is not so material to tilt thecase of the prosecution in favour of the accused. No conflict is alsofound in the evidence of ocular and medical witnesses in this case. 20. The court finds that the appellate court has analysed thematerials on record in the proper perspective and has recordedconviction of the first accused under section 307 and 324 of theIndian Penal Code and sentenced him to undergo three years rigorousimprisonment and one year rigorous imprisonment respectively andconvicted the seventh accused under section 323 of the Indian PenalCode and sentenced him to undergo three months simple imprisonment.No impropriety or illegality is found in the well considered verdictof the appellate court. Therefore, both the revision cases fail andthey stand dismissed. Both the petitioners are directed to surrenderbefore the Trial Court within *thirty days from the date of https://hcservices.ecourts.gov.in/hcservices/ receipt of the order failing which the Trial Judge shall issue nonbailable warrant as against the petitioners to secure them to undergothe unexpired portion of sentence. ssk. Sd/Asst.Registrar27.7.2009*Amended as per order dated 4.8.2009 and made in Crl.RC.Nos.2054 & 2055/04Sd/-Asst Registrar5.8.2009/true copy/Sub Asst.RegistrarTo1. The District and Sessions Judge, Nagapattinam. 2. The Additional /Assistant Sessions Judge, Nagapattinam. 3. Do Through The Principal District and Sessions Judge, Nagapattinam4. The District Collector, To be substituted Nagapattinam.to the order alreadydespatched on 27.7.20095. The Director General of Police, Mylapore, Chennai 4.6. The Inspector of Police, Nagore Police Station, Nagapattinam District.7. The Public Prosecutor, High Court, Madras.+ 2 ccs to Mr. P. Kalidass, Advocate SR No.33572, 33573 ORDER IN Crl.R.C.No.2054 and 2055 of 2004CU(CO)SR/27.7.2009