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Judgment
M. Karpagavinayagam, J.—The gravamen of the charge is that the appellants/A-1 and A-2 with the knife, attacked one Kutty alias Prabhakaran in the Canteen situated behind Senthil Wines and caused his death. During the course of same transaction, A-2 Parthiban @ Nadar Medu Parthiban, with the aruval, attacked P.W. 2 and caused injuries.
On the basis of these allegations, both were tried and A-1 was convicted for the offences under Sections 302 read with 34 IPC and 506 (Part II) IPC and sentenced to undergo life imprisonment and two years rigorous imprisonment respectively and A-2 was convicted for the offences under Sections 302 read with 34, 324 and 506 (Part-II) IPC and sentenced to undergo life imprisonment, three years rigorous imprisonment and two years rigorous imprisonment respectively. The sentences imposed on the accused were ordered to run concurrently. Challenging the above conviction and sentence, these appeals in Crl.A.Nos. 1233 of 2001 and 507 of 2002 have been filed by A-1 and A-2 respectively.
The short facts could be summarised as follows:
(a) Deceased Kutty @ Prabhakaran, the son of P.W. 1 Balasubramaniam, P.W. 6 Sasi@ Sasikumar, P.W. 7 Senthil @ Cellphone Senthil, A-1-Yamaha Kannan @ Kannan, the appellant in Crl. A. No. 1233 of 2001 and A-2 -Parthiban @ Nadar Medu Parthiban, the appellant in Crl. A. No. 507 of 2002, were all friends.
(b) All of them used to indulge in ''katta panchayat'' in settling the scores arising among the students of K.S.R. College, Tiruchengode. In course of time, A-1 and A-2 felt that the deceased became disloyal to them. In one case, A-1 was arrested and sent to jail.
(c) Having felt that the registration of the case in which A-1 Kannan was arrested and sent to Jail, was at the instance of the deceased, A-2 Parthiban picked up quarrel with the deceased. During that quarrel, A-2 beat the deceased. P.W. 9 shanmugam, who happened to be there, separated and pacified them. A-2 Parthiban, at that time, challenged the deceased saying that after A-l Kannan coming out from jail, they would see to it that he is done away with. This incident had taken place few days prior to the date of occurrence.
(d) The fateful occurrence took place on 15.3.2001. P.W. 1 Balasubramaniam, the father of the deceased, mother of the deceased and the deceased Kutti @ Prabhakaran were in the house at 11.00 a.m. P.W. 6 Sasi and P.W. 7 Senthil, the Mends of the deceased, came there and talked to P.W. 1 Balasubramaniam and his wife for some time and then took the deceased Prabhakaran outside to get some repairing work done for the motor bike. The deceased, P.W. 6 and P.W. 7 went round to several places and ultimately, they came to Senthil Wines canteen at about 2.45 p.m. to consume liquor.
(e) In the meantime, at about 2.00 p.m., A-1 and A-2 came to the house of the deceased in search of the deceased. When they enquired about the whereabouts of the deceased, P.W. 8 Arun @ Arun Kumar, the cousin brother of the deceased informed them that the deceased had gone along with P.Ws.6 and 7.
(f) At about 3.00 p.m., the deceased and P.Ws.6 and 7 were taking tiffin and consuming liquor in canteen. Inside the canteen, P.W. 2 Jayachandran, who was working as a Security Officer in the Telephones Department, P.W. 5 Ramkumar and others were present and taking tiffin. At that point of time, A-1 and A-2 came inside the canteen. On noticing A-1 and A-2 coming inside the canteen, P.W. 7 Senthil informed the deceased that both A-1 and A-2 were coming towards them.
(g) At that time, some ten or fifteen persons were in the Canteen consuming liquor. Then, both the accused came near to the deceased Kutty @ Prabhakaran and shouted at him that, . So saying, A-1 took out a knife from his waist and stabbed on the left chest, back and other parts of the body of the body of the deceased. When the other people who had gathered there intervened, A-2 Parthiban took out an ''aruval'', which was kept inside his shirt and threatened and told them not to come near. At that time, P.W. 2 Jayachandran, the Security Officer, tried to prevent the attack. A-2 attacked P.W. 2 with aruval and caused injury on his right hand and also attacked the deceased. The crowd that gathered there cried aloud. Both A-1 and A-2 came out of the canteen, carrying weapons with them and ran away. The deceased died at the spot.
(h) Then, one Ganesan who was working in the said canteen, rushed to the house of the deceased and informed P.W. 1 Balasubramaniam, the father of the deceased about what had happened. Thereafter, P.W. 1 contacted P.Ws.6 and 7 over their cell phones and asked them as to what had happened. He was informed by them about the incident that took place inside the canteen and the death of the deceased due to the injuries caused by A-1 and A-2.
(i) P.W. 1 Balasubramaniam rushed to the scene and saw the body of the deceased. Thereafter, P.W. 1 at about 4.15 p.m., rushed to the Police Station and gave Ex. P-1 complaint. A case was registered by P.W. 22 Sub-Inspector of Police for the offences under Sections 302 and 324 IPC.
(j) Then, P.W. 23 Inspector of Police took up investigation and came to scene of occurrence and Observed all formalities. Then he held inquest. After the inquest the dead body was handed over to P.W. 16 Doctor for conducting post-mortem.
(k) P.W. 16 Doctor conducted postmortem and found injuries on various part of the body of the deceased He issued Ex. P-15 post-mortem certificate giving opinion that the death was due to multiple injuries, haemorrhage and shock.
(l) P.W. 23 Inspector of Police took steps to arrest the accused. But they were not available. Then, he came to know that on 19.3.2001, both the accused surrendered before the Court. On the application filed by him for Police custody, the Court ordered Police custody on 28.3.2001. Accordingly, both the accused were taken for police custody and on the confession of A-1, M.0.1 knife and M.0.2 aruval (bill-hook) were recovered and on the confession of A-2, M.0.3 pant, M.0.4 shirt, M.0.5 another pant and M.0.6 another shirt, were recovered. Further, on their confession, M.0.8 cycle token as well as M.0.7 motor cycle were recovered.
(m) P.W. 23 Inspector of Police continued the investigation and sent the material objects for chemical analysis. After completion of the investigation, the charge sheet was filed against both the accused for the offences under Sections 302, 506 (Part-II) and 324 IPC.
During the course of trial, on the side of prosecution, P.Ws.1 to 23 were examined, Exs.P-1 to P-27 were filed and M.Os. 1 to 20 were marked.
When the accused were questioned u/s 313 Cr.P.C. with regard to the incriminating materials available on record, they pleaded innocence. On the side of defence, D.W.1, the father of A-1 was examined and Ex. D-1 letter of the Revenue Divisional Officer addressed to the District Judge and the Superintendent of Police, relating to the complaint filed by one Gunasundari with regard to the request for search of her husband and her son, was marked.
Relying upon the materials placed by the prosecution, the trial Court accepted the case of the prosecution and found both the accused guilty of the offences and convicted and sentenced them, as referred to above. Aggrieved by the said judgment of conviction, these separate appeals have been filed by A-1 and A-2.
Mr. V.K. Muthusamy, learned Senior Counsel appearing for the appellant in Crl.A.No. 1233 of 2001, the first accused and Mr. V. Bhiman, Learned Counsel for the appellant in Crl.A.No. 507 of 2002, the second accused, both would take us through the entire evidence and contend that the prosecution case would bristle with so many infirmities and consequently, the accused are entitled to be acquitted on benefit of doubt.
The gist of the contentions urged by both the counsel is as follows:
(i) There are four eye-witnesses, namely P.Ws. 2, 5, 6, and 7. P.W. 6 Sasi turned hostile. No reliance could be placed upon the evidence of P.W. 7 Senthil, as he did not come forward to inform about the incident that took place in the canteen immediately either to police or to any person in the locality. Further, P.W. 7 Senthil has been examined only four days later. As such, his evidence cannot be believed.
(ii) The evidence of P.W. 2 Jayachandran cannot be acted upon, in view of fact that both the accused were not known earlier to him. In Ex. P-12 accident register, he mentioned that one known person used "katthi" and "aruval" and caused injury on him. This is quite contradictory to the case of the prosecution.
(iii) Though P.W. 1''s evidence would indicate that he was informed by Ganesan, an employee in the canteen and P.W. 6 Sasi about the incidents, the said evidence cannot be said to be admissible evidence, in view of the fact that the said Ganesan has not been examined and P.W. 6 turned hostile.
(iv) Recovery of blood-stained clothes and knife would not be of any conclusive proof to show that the appellants alone had committed the offences.
(v) Evidence of P.W. 5 Ramkumar, another eye-witness, also cannot be believed, because he had not been examined during the course of inquest and he was examined only later. There is no detail as to how P.W. 5 Ramkumar was traced out.
(vi) P.W. 4 subramaniam�s evidence is artificial, who stated that he along with others, saw the accused coming out of the canteen and even though he and others parked the vehicle near the place of occurrence, they did not choose to come to the place of occurrence and tell the police regarding their having seen the accused coming out.
(vii) Evidence of P.W. 7 Senthil also cannot at all be believed, because he had not chosen to inform the father of the deceased, even though he happens to be the friend of the deceased, in whose presence the deceased was done to death.
On these points, it is submitted that both the accused are liable to be acquitted of the charges.
Mr. V.K. Muthusamy, learned Senior Counsel appearing for A-1, relied on the following authorities in support of his submissions:
(i) Pratap Singh and Another Vs. State of Madhya Pradesh,
(ii) Mahendra Vs. The State of Madhya Pradesh,
(iii) Bhaskaran Vs. State of Kerala,
(iv) Palanisamy and Raju Vs. State of Tamil Nadu,
(v) 1996 (2) Crimes 314 (Bombay H.C.) (Raja Sharnappa Zinge & Two Others vs. State of Maharashtra);
(vi) 1997 S.C.C. (Cri) 234 (Ballu vs. State of Haryana);
(vii) 1997 (41) M.L.J. 257 (Madras H.C) (Arumainathan vs. State):
(viii) 2001 S.C.C. (Cri) 1262 (Mahabir Singh vs. State of Haryana) and
(ix) 2002 S.C.C. (Cri) 452 (Kajal Sen vs. State of Assam).
On these aspects, we have heard Mr. E. Raja, learned Additional Public Prosecutor. The following are the decisions relied on by him:
(a) Rameshwar Vs. The State of Rajasthan,
(b) 1991 S.C.C. (Cri) 976 (Malkiat Singh vs. State of Punjab);
(c) Rajan Vs. State of Kerala,
(d) Rattan Singh Vs. State of Himachal Pradesh,
(e) 2000 S.C.C. (Cri) 419 (Sukhar vs. State of U.P);
(f) 2003 S.C.C. (Cri) 201 (Bodhraj vs. State of J & K) and
(g) 2003 (4) Supreme 394 (Malkhansingh Ors. vs. State of Madhya Pradesh).
We have given our anxious consideration to the rival contentions urged by the Learned Counsel for the parties and also gone through the records.
On a perusal of the entire records, we are to hold that we are very much impressed upon the testimony of P.W. 2 Jayachandran, an independent witness, corroborated by unimpeachable other materials. According to P.W. 2, he was working as a Security Officer in the Telephones Department for the past two years. On 15.3.2001, he went to the canteen situated behind Senthil Wines and was consuming liquor. At that time, he found three persons aged about 20 to 22 years, who came and set in the canteen chairs and they were also consuming liquor. He stated that during the course of their conversation, he came to know the names of the deceased as well as of P.Ws.6 and 7. While they were consuming liquor, both the accused gathered and A-1 removed the knife from the waist and gave stabs on the chest, flank, fore-arm, back and stomach of the deceased. He also cut the neck of the deceased. On seeing this, all the persons who gathered there, tried to prevent the attack, but nobody was dare enough to come nearer to them. When P.W. 2 Jayachandran, who was the Security Officer, chose to come near to A-1 for preventing him from making further attack, A-2 took out an "aruval", which was kept behind his back and made an attack on P.W. 2, which was warded off, with the result, he sustained injuries on the fore-arm. Then, A-2 also attacked the deceased, which resulted in the injury on the hands of the deceased. Then, both the accused ran away.
Ganesan, who was working in the canteen, immediately took P.W. 2 Jayachandran to hospital and-P.W. 15. Doctor attended on him. Ex. P-12 is the accident register relating to the injuries sustained by P.W. 2. Ex. P-13 is the police intimation. According to P.W. 15 Doctor, P.W. 2 was brought by one Ganesan and he was informed that he was attacked by a known person with weapon in the Canteen behind, the Senthil Wines shop.
A perusal of Ex. P-12 accident register relating to the injuries sustained by P.W. 2 and Ex. P-13 Police intimation and also the evidence of P.W. 15 Doctor, would clearly show that P.W. 2 was brought by Ganesan and he was admitted in the hospital at about 4.45 p.m., where P.W. 15 Doctor attended on him. He told P.W. 15 Doctor that he sustained injuries near the wine shop, i.e. at the back-side of Senthil Wines. As per Ex. P-12 accident register, P.W. 2 sustained "incised wound 2 cm x 1/2 cm - right middle fore arm wound sutured". Immediately, P.W. 15 Doctor, after giving treatment to P.W. 2 Jayachandran, gave Ex. P-13 Police intimation. These details about the place of occurrence, the time of occurrence and the weapons used, have all been clearly mentioned in Ex. P-12 accident register. So, this is an important piece of evidence which corroborates the evidence of P.W. 2 Jayachandran.
According to P.W. 2 Jayachandran, other witnesses were also there during the occurrence. The evidence of P.W. 5 Ramkumar and the evidence of P.W. 7 Senthil would also indicate that One another man who was present there, tried to intervene and in that process, the was also attacked by A-2. Thus, it is clear that the evidence of P.W. 2 whose injuries were treated by P.W. 15 Doctor as per Ex. P-12 accident register at the earliest point of time, is clearly corroborated by the evidence of the other witnesses namely P.W. 5, P.W. 7, P.W. 15 Doctor and Ex. P-12 accident register and Ex. P-13 Police intimation.
It is contended that P.W. 2''s version before P.W. 15 Doctor is contradictory to the case of the prosecution. This, contention, in our view, is untenable, in view of the fact that P.W. 2 Jayachandran had given the gist of the case in the form of statement to P.W. 15 Doctor that had been reduced into writing. If we read both P.W. 15''s evidence and P.W. 2''s evidence together in the light of Exs. P-12 and P-13, it would be clear that all the details given in Ex. P-12 have been given in the deposition of P.W. 2 Jayachandran. Nothing has been culled out from the evidence of P.W. 2 to show that he was speaking falsehood against the accused. As a matter of fact, P.W. 2 was neither interested in the family of the deceased nor having any enmity against the accused. Further, P.W. 2''s evidence relating to the attack made on the deceased, has been corroborated by the evidence of P.W. 16 Doctor, who conducted post-mortem.
Evidence of the other witnesses, namely P.Ws.5 and 7 is being attacked on the reason that they did not inform the Police immediately after the occurrence and as such, their delayed examination would affect the prosecution case. To substantiate this plea, Mr. V.K. Muthusamy, learned Senior Counsel appearing for A-1 relied on the decision reported in 1996 (2) Crimes 314 (cited supra), wherein the Bombay High Court held that inordinate delay in the interrogation of witness during investigation u/s 161 Cr. P.C. is a sufficient ground to exclude his testimony in considering the involvement of the accused in the crime.
On the other hand, learned Additional Public Prosecutor Mr. E. Raja would cite a decision of the Supreme Court reported in 2003 S.C.C. (Cri) 201 (cited supra) to show that there can be no rule of universal application that if there is any delay in .examination of a particular witness, the prosecution version becomes suspect. It is also stated in the said decision that it would depend upon several factors. If the explanation offered for the delayed examination is acceptable and the trial Court accepts the same as plausible, there is no reason to interfere with the conclusion.
It is true that P.Ws.6 and 7 were present along with the deceased while the deceased was being attacked. Since P.W. 6 Sasi turned hostile, the prosecution cannot use his evidence. P.W. 7 Senthil alone is available to speak about the occurrence. The occurrence took place on 15.3.2001. But, P.W. 7 was examined only four days later. According to P W.7 Senthil, all the persons were threatened by A-2 with ''aruval'' and that was the reason why he came out and go J into the bus and went to his village. Only after four days, the Police come to him and obtained statement. Since some explanation has been offered by .P.W. 7 Senthil, we are unable to reject his evidence in relation to the occurrence, which has been clearly established by the evidence of P.W. 2 Jayachandran as discussed above.
Further, the presence of P.W. 7 Senthil in the place of occurrence has been fortified by the evidence of P.W. 1 Balasubramaniam, the father of the deceased. According to P.W. 1, on 15.3.2001 at about 11 a.m., P.Ws.6 and 7 came in a bike and took the deceased outside for doing some repair work of the vehicle. This evidence relating to taking of the deceased from the house of P.W. 1, has been mentioned in Ex. P-1 complaint itself by P.W. 1. Under those circumstances, we cannot reject the evidence of P.W. 7 Senthil, especially when his name is mentioned in Ex. P-1 complaint by P.W. 1 Balasubramaniam as one of the persons who accompanied the deceased.
Similar argument was advanced in relation to the presence of P.W. 5 Ramkumar. P.W. 5 Ramkumar also was present at the time of occurrence. According to him, he was also consuming liquor in the canteen. He also saw the deceased when P.W. 2 Jayachandran was attacked. It is also true that P.W. 5 Ramkumar was also not immediately examined and was examined only belatedly. But it cannot be forgotten that P.W. 5 was traced out on the basis of the statement given by P.W. 4 Subramaniam. According to P.W. 4 Subramaniam, he obtained the vehicle from P.W. 3 Shajahan and parked the vehicle in front of the canteen for, the purpose of coming inside the canteen to consume liquor. As soon as there was commotion, P.W. 4 Subramaniam and another Siraj, on coming inside the canteen, wanted to avoid the commotion by attempting to leave the place. At that time, they saw both the accused coming with the weapons in blood-stained clothes. According to him, at that time, P.W. 5 Ramkumar was also coming out of the Canteen.
Though the Police was not able to get the particulars of the owner of the vehicle that was parked opposite to the canteen, they were able to get the vehicle report from the office of the Regional Transport Officer and found that P.W. 3 Shajahan was the owner of the vehicle. On examining P.W. 3, they came to know that P.W. 4 Subramaniam got the vehicle from him and subsequently, he did not turn up. That was how P.W. 4 Subramaniam was traced out by P.W. 23 Inspector of Police. On the basis of the statement given by P.W. 4 Subramaniam, P.W. 5 Ramkumar was also traced out.
Admittedly, both the groups indulged in so many illegal activities. As a matter of fact, some of the witnesses would say that both the groups were rowdies. P.W. 5 Ramkumar also was one of the associates of the deceased. Therefore, there is no difficulty in holding that P.W. 5, out of fear, did not come to the Police Station to give a complaint. Under those circumstances, the evidence of P.Ws.4 and 5 would indicate that the accused attacked the deceased and came out of the canteen at the relevant time.
One important argument advanced by Learned Counsel for the appellants is that the evidence of P.W. 1 Balasubramaniam relating to the information given by Ganesan and also the telephonic conversation between P.W. 1 Balasubramaniam and P.W. 6 Sasi, cannot be said to be admissible either u/s 157 or u/s 6 of the Evidence Act.
According to P.W. 1 Balasubramaniam, immediately after the occurrence was over, Ganesan, who was working in the canteen, came to the house of P.W. 1 and informed him about the incident. He told that the deceased was accompanied by P.Ws.6 and 7 and at that time, two persons attacked, with the re-suit, the deceased died in the canteen itself. Immediately, P.W. 1 contacted P.W. 6 over telephone and got the information about the involvement of A-1 and A-2.
The question is as to whether this aspect of the evidence relating to the statement given by Ganesan, the employee of the canteen and P.W. 6 Sasi (who accompanied the deceased) to P.W. 1 is admissible or not.
Let us now look into the "illustration (a)" to Section 6 of the Evidence Act as enunciated in "SARKAR" on Evidence, 15th Edition, (1999), which reads as follows:
Illustration (a): "A" is accused of the murder of "B" by beating him. Whatever was said or done by A or B or the by-standers at the beating, or so shortly before or after it as to form part of the transaction, is a relevant fact.
Thus, on going through this illustration, it is clear that the statement made by A or B or the by-standers about the occurrence so shortly after it, as to form part of the transaction, could be said to be admissible u/s 6 of the Evidence Act.
When a similar situation had been dealt with by the Supreme Court in Rattan Singh Vs. State of Himachal Pradesh, ), it was considered as to whether the statement of the deceased prior to the attack made to some other witnesses, was admissible or not. It was argued before the Supreme Court that it was admissible u/s 32 of the Evidence Act, as it would amount to dying declaration. However, the Supreme Court, though would accept their contention that it may come u/s 32 of the Evidence Act, went to the extent of saying that the statement of the deceased prior to the attack on one of the witnesses, would be admissible u/s 6 of the Evidence Act as "res-gestae". In our view, the said observation would apply on all fours to the present facts of the case.
In the said Supreme Court case reported in Rattan Singh Vs. State of Himachal Pradesh, , Kanta Devi was not examined, since she was the deceased. In the present facts of the case, the statement given by the said Ganesan who was working in the canteen, to P.W. 1, can be acted upon, in the absence of the examination of Ganesan, since immediately after the occurrence, i.e. shortly after the occurrence, as soon as the attack was made on the deceased and after the deceased died, the said Ganesan rushed to the house of P. W. 1 (father of the deceased) and informed him. Immediately thereafter, P.W. 1 phoned-up to P.W. 6 and asked about the incident and P.W. 6 in turn told him that in the presence of P.Ws.6 and 7, the deceased was attacked by A-1 and A-2. This statement, in our view, even though P.W. 6 turned hostile and even though Ganesan has not been examined, cannot be said to be inadmissible, in view of the said "illustration (a)" to Section 6 of the Evidence Act.
As laid down by the Supreme Court in the decision reported in 2000 S.C.C. (Cri.) 419 (cited supra), Section 6 of the Evidence Act is an exception to the general rule, where under the hear-say evidence becomes inadmissible. But for bringing such hear-say evidence within the provisions of Section 6, what is required to be established is that it must be almost contemporaneous with the acts and there should not be an interval which would allow fabrication. The statements sought to be admitted, therefore, as forming part of registered, must have been made contemporaneously with the acts or immediately thereafter.
"Sarkar" on Evidence (15th Edition) (1999), summarises the law relating to the applicability of Section 6 of the Evidence Act and the admissibility of declarations/accompanying acts, thus:
The declarations (oral or written) must relate to the act which is in issue or relevant thereto; they are not admissible merely because they accompany an act. Moreover the declarations must relate to and explain the fact they accompany, and not independent facts previous or subsequent thereto, unless such facts are part of a transaction which is continuous.
The declarations must be substantially contemporaneous with the fact and not merely the narrative of a past.
The declaration and the act may be by the same person, or they may be by different persons, e.g., the declarations of the victim, assailant and bystanders. In conspiracy, riot & c the declarations of all concerned in the common object are admissible.
Though admissible to explain or corroborate, or to understand the significance of the act, declarations are not evidence of the truth of the matters stated.
If we apply the above principles to the present facts of the case, there is no difficulty in concluding that the occurrence had taken place inside the canteen in the presence of so many persons, including Ganesan and immediately after the occurrence was over, the said Ganesan rushed to P.W. 1 and gave the information and on getting the information, P.W. 1 phoned up to P. W.6 and gathered other information.
These things have also been mentioned in Ex. P-1 complaint by P.W. 1. Ex. P-1 was registered at about 4.15 p.m., which is the earliest document. The F.I.R. reached the Magistrate concerned. Of course, P.W. 1 Balasubramaniam is not the eye-witness. But, whatever said by Ganesan and whatever informed by P.W. 6 Sasi over telephone, have been clearly mentioned in Ex. P-1 complaint. Further, the presence of P.Ws.6 and 7 along with the deceased in the canteen at the time of the occurrence, has been categorically mentioned in Ex. P-1.
In view of the fact that in the earliest document, namely Ex. P-1 complaint the names of the witnesses, namely P.Ws.6 and 7, have been mentioned as indicated above, merely because they were, examined belatedly, i.e. four days later, we cannot reject the evidence of P.W. 7, which has been corroborated by the evidence of P.Ws.2 and 5.
In view of the foregoing discussion, we are satisfied that there are sufficient materials to establish that both the accused had committed the murder of the deceased and A-2 also caused injuries on P.W. 2 and thereby, they are liable to be punished for the offences with which they were convicted.
Therefore, there are no merits in the appeals and the same are accordingly dismissed, confirming the conviction and sentence imposed on the appellants/accused by the trial Court.