CRL A/282/1998 of Vs on 19 December 2002

:JUDGMENT

V.S. SIRPURKAR, J.

This appeal is directed against the verdict of conviction andsentences awarded by the Principal Sessions Judge, Vellore against all thefive appellants. They have been convicted for the offences under Secs.148,302 and 427 as also 324 I.P.C.

2. The prosecution story as revealed is that Shankar(deceased) along with his wife Malliga (P.W.1) were residing in the fieldbelonging to Janakiraman (P.W.5) as they were cultivating that field sinceJanikaraman was residing at Chennai. Accused 1 and 2 are the close relativesof Janakiraman while, accused 3 to 5 are the close relatives of accused 1 and2. Accused persons felt a grudge against the deceased that it was their rightto cultivate the lands of Janakiraman because of their kinship.

3. On 30-3-1996 at about 10.30 p.m., the accused persons, after forming an unlawful assembly with an object of eliminating Shankar,actually came to the field of Janakiraman where Shankar resided in a house andat that time all of them were armed with deadly weapons. They assaultedShankar suggesting that unless he was removed, he was not going to vacate thefield. All the accused persons pounced on him and assaulted him with deadlyweapons with which they were all laced. As a result of this, Shankar died onthe spot. At the time when the dastardly attack took place, Shankar’s wifeMalliga (P.W.1), Maha (P.W.2), Venkatesan (P.W.3) and Ragothaman (P.W. 4) andothers were present. It is also the case of the prosecution that during thisassault, some of the witnesses also got injured as even they were not sparedsince they tried to intervene and rescue Shankar. The incident took place atabout 10.30 p.m. within the juris diction of Kalavai Police Station.

4. Malliga (P.W.1) along with some other persons went and sought medical help from Dr. Sengottayyan (P.W.8) first and then reported thematter to the Kalavai police station. On the basis of this, policeimmediately sprung into action. The express First Information Report wasprepared and sent to the Judicial Magistrate, Arcot while the otherinvestigation was conducted by Kuppan (P.W.14), sub Inspector of Police,Kalavai Police Station. The investigating officer executed the spot mahazar,drew the rough sketch and also seized the material objects, some of which werelying on the spot. The accused persons had not remained content aftercommitting the murder of Shankar and injuring the other witnesses but had alsocaused extensive damage to the autorickshaw and the household articles. Infact the autorickshaw was found to be thrown in the nearby well. It has comein the prosecution case also that the appellants were seen by Ragothaman(P.W.4) at about 7.00 p.m. together duly armed. After the investigation,charge-sheet was filed against the accused persons.

5. The names of the accused persons reached via the First Information Report in barely one and a half hours from the incident even alongwith the details of the weapons which they had used. Eventually, the accusedpersons were arrested and after the matter committed to the sessions, theywere tried for the aforementioned offences. Charges were duly framed.

6. All the accused persons abjured their guilt and their

defence seems to be that the deceased Shankar and his wife were bootleggers.They used to brew arrack or get arrack from outside and sell the same in thevillage. It is suggested that the other witnesses who were present at thetime were none else but the persons dealing in arrack and that all thesepersons were assaulted by unknown villagers who had a wrath against thesearrack-sellers and in the process Shankar lost his life and the witnesses gotinjured. It is also tried to be suggested that it is out of enmity thatMalliga (P.W.1) gave the names of the accused persons and that they have beenfalsely implicated.

7. Before the Sessions Court, the prosecution relied on the evidence of the eye-witnesses as also on the circumstantial evidence like therecovery of blood-stained weapons, etc. At the stage of trial, Maha (P.W.2)

turned hostile. The learned Sessions Judge, on the basis of appreciation ofevidence, came to the conclusion that the prosecution had proved the chargesas against the five appellants for the offences under Sec.302 read withSec.149; 324 read with 149 ( substantive charge of Sec.324 was held to beproved against some of the accused). They have also been convicted for theoffence under Sec.427 on the ground of mischief by causing damage to theautorickshaw. They have also been convicted for the offence under Sec.148 onthe ground that they were the members of the unlawful assembly and were armedwith deadly weapons and that the members of the unlawful assembly committedthe offences. It is against this verdict that the appellants have come up inappeal.

8. Learned counsel for the defence, Mr. Ashok Kumar, very

painstakingly took us through the whole evidence and more particularly that ofthe evidence of Malliga (P.W.1), Venkatesan (P.W.3), the evidence of themedical officers and the investigating officer as also that of the panchas inwhose presence the accused had allegedly accepted to show the places where theweapons used in the crime were hidden and produced the same. Learned counselhas tried to suggest that the investigation in this case is tainted and thatit is not a honest investigation. Learned counsel directed his ire againstthe First Information Report and pointed out that the First Information Reportitself was a suspicious document and possibly could not have been recorded atthe time when it is claimed to have been recorded. According to the learnedcounsel, the names of the accused persons were well thought about perhaps bythe investigating agency with the co-operation of the witnesses and then awell cooked first information report was concocted which was full of graphicdescription of the names of the accused, weapons handled by them and the roleplayed by each of them. Learned counsel says that the first informationreport was sent to the Judicial Magistrate, Arcot only on 2-4-1996 whichitself would suggest that the first information report was deliberately heldback at least till the fifth accused was arrested on 2-4-1996. Carrying thesame thread, the learned counsel suggests that once this position is obtainedthen the evidence of Malliga (P.W.1), who was an interested witness and havinga shady past, cannot be relied upon by the court and that the learned SessionsJudge had erred in accepting her testimony. Learned counsel further pointsout that in so far as the evidence of Venkatesan (P.W.3) is concerned, hisevidence has been rejected even by the trial court because he had admitted inthe cross-examination that he had seen the accused for the first time in thecourt. Learned counsel suggests that it was impossible for this witness tohave stated the names and it was obvious that he had given a parrot likestatement before the police perhaps at the behest of the wife of the deceased,P.W.1 Malliga. In so far as the circumstantial evidence of discovery isconcerned, learned counsel says that all that evidence is highly farcical.According to the learned counsel, the discoveries were stage-managed and atany rate could not be said to be established so as to be acted upon. Learnedcounsel further suggested that on the other hand, the evidence suggested bythe prosecution accepted more probable because of the nefarious activities ofthe deceased, his wife and his friends who were all bootleggers or dealing inillicit arrack, the villagers had come there in large numbers and had pouncedupon the deceased and in that the deceased was done to death. Learned counselsuggests that the charge against the accused for the unlawful assembly waslimited only to the five accused. It did not mention any other persons.

Therefore, the story of the prosecution was that the unlawful assemblyconsisted only all these five persons which was highly improbable in the wakeof the admissions given by some of the witnesses that they saw about seven toeight or ten persons. Learned counsel, therefore, suggests that the wholestory was a make-belief affair and the accused persons were liable to beacquitted.

9. As against this, the Public Prosecutor supported the judgment and suggested that Malliga (P.W.1) was a truthful witness and hadnothing to hide and she would be more interested in seeing that the realculprits would not go unpunished. Learned Public Prosecutor also argued thatmerely because Malliga (P.W.1) was the wife of the deceased, she could not bebranded as the interested witness and at the most her evidence was liable tobe examined with caution in mind, which was done by the trial court. Hepoints out that the first information report was genuine and the theory thatthe express report of the first information report was sent vide Ex.P-17 onlyon 2-4-1996 was highly incorrect. According to him, the first informationreport was received by the Magistrate who had put his signature only on31-3-1996, i.e. the next day of the incident. He also supported the evidenceregarding the discoveries and contended that the prosecution had fully provedthe case and the accused were rightly convicted.

10. On this conflicting background, it will be better for us to see the evidence of the alleged eye-witnesses, they being Malliga (P.W.1),Maha (P.W.2) and Venkatesan (P.W.3).

11. Malliga (P.W.1) is the wife of the deceased and there can be no dispute that she was a resident of the same village where the accusedpersons were also living. In fact, accused persons have their fields in thevicinity of the village where the witness was living along with her deceasedhusband. She has fully described that she was sitting along with the deceasedand the others like Maha (P.W.2), Venkatesan (P.W.3), Kumar and some others onthe spot and at that time, the accused persons came fully armed. The witnesshad specifically described the arms in the hands of each of the accusedsuggesting that A-1 was having the knife; A-2 was having the rice-pounder; A-3was having the cycle-chain; while A-4 and A-5 were armed with sticks. Thewitness further deposed that all these accused persons had started assaultingher husband by first uttering the words to the effect that unless the deceasedwas eliminated he would not vacate the lands. She then goes on to depose thatwhen she tried to save the deceased, she was also assaulted by the fourthaccused. The witness has specifically stated that they pushed her husbandfrom the cot where he was sitting and inflicted cut injuries on the rearportion of the neck. This act she ascribes to the first accused. She alsoasserted that the second accused assaulted Shankar on the back of the headwith the rice-pounder and that the third accused assaulted on the chest andbody of Shankar repeatedly with the cycle-chain. She also asserted thataccused 4 and 5 beat Shankar on head and body with sticks and that as a resultof that Shankar fell in front of the house. She claims that even the guestswere not spared and that Kumar and Maha (P.W.2) were assaulted by the accusedpersons. She then refers to the accused persons pushing the autorickshaw inthe well nearby and damaging the same.

12. She claims that when she approached, her husband was

12. She claims that when she approached, her husband was injured and found to be dead and, therefore, she proceeded firstly to theprivate doctor for getting herself treated as she herself was injured alongwith other witnesses and then went to the police to gave a complaint. Thereis very little or no cross-examination on this main subject in her evidence.The cross-examination revolves around some factors which are not important inreality. As regards the evidence of this witness, it will have to be saidthat her presence on the spot was most natural as she was in her housealong-side her husband. Though it can be said that she would be an interestedwitness, being the wife of the deceased, it cannot be forgotten that she wouldnot want the real assailants to go scot-free. What is tried to be argued isthat she had and was likely to have grudge against accused 1 to 5 as theyattempted to deprive of her livelihood by ousting her from the field.However, there is greatest assurance to the evidence of this witness as shehas disclosed the names of the accused in the First Information Report withinbarely one and a half hours of the incident. A whole scene can be imaginedthat in her presence some accused persons, duly armed, assaulted her husband,herself and the persons present in her house; the husband breathed last; theother witnesses have to took to their heels in order to save themselves andshe is also injured. Under these circumstances, if P.W.1 Malliga chose to goto the police barely within one and a half hours, it cannot be said that shehas given all the names out of her own wild imagination and more particularlyactuated by malice. The injuries on her person were firstly proved by the Dr.Sengottayyan (P.W.8), who was a private medical practitioner in the village,to whom she had gone for treatment. That would also be natural. After that,injuries on her person are also deposed by the other doctor, Dr. P.Rajeswari (P.W.9) who has also issued a wound certificate to this witness,vide Ex.P-5. The doctor has clearly deposed that she was brought by thepolice along with one Kumar who had also suffered injuries for whom the doctorhad given the medical certificate vide Ex.P-4. The existence of the injurieson the person of this witness would lend all the more support to hertestimony.

13. Again it cannot be forgotten that at the relevant time, there was light available which is clear from the evidence of theinvestigating officer as also the spot mahazar witness Ramachandran (P.W.6).In fact, this witness had made a claim that at the time when the spot mahazarwas drawn at about 5.30 a.m., the bulb was still burning. Thus, P.W.1 Malligahad the light available for identifying the accused persons. On the backdropthat the accused persons were all known to her, it would not be difficult forthis witness to identify the accused persons even along with their weapons.It cannot be forgotten that Malliga (P.W.1) herself has been beaten. There isslight discrepancy in her evidence regarding the role played by the accused 4and 5 but, considering the mental state of the witness at the time of theincident, it has to be said that she was able to identify the accused personswho were named immediately.

14. Mr. Ashokkumar very earnestly pointed out that Malliga (P.W.1) was a courtbird and a bootlegger. Much effort was done in thecross-examination also to suggest that she had suffered convictions in theprohibition offences and that her husband also had suffered the convictions.

On this basis, the learned defence counsel suggests that Malliga (P.W.1) has ashady past and such self-proclaimed criminal should not be believedparticularly when her evidence is almost the sole basis for the conviction.

15. It cannot be disputed that the witness was convicted and

so was her husband for the prohibition offences but that does not by itselftake out the rigour of her evidence. What is to be seen is as to whether inspite of her shady past, she was telling the truth in respect of the assault.In this behalf, she is well corroborated by the evidence of Venkatesan(P.W.3), who specifically deposed regarding the assault at the relevant timeand on the same place as deposed by Malliga (P.W.1). The fact of assault,therefore, has to be accepted and in respect of the other minor details likethe availability of light; the number of accused persons, etc., the evidenceof Malliga (P.W.1 ) stands completely corroborated by the evidence ofVenkatesan (P.W.3 ). The Sessions Judge has not chosen to rely on theevidence of Venkatesan (P.W.3) wholly because of his admission during thecrossexamination that he was seeing the accused for the first time and had notknown them earlier. Though we have our own reservations regarding this aspectof non-identification of the accused persons, we are of the clear opinion thatat least in so far as the other aspects of the incident are concerned, thewitness was telling the truth. Even granting that he did not identify theaccused persons, the fact that number of persons came; they were all armed tothe teeth; they assaulted Shankar and in that incident he himself, Kumar andMaha were injured can be safely accepted on the basis of his evidence also.It is undoubtedly true that he has admitted that he had not seen the accusedpersons earlier. Learned Public Prosecutor, however, tried to contend thateven if he had identify the accused persons for the first time in the court,that would be completely admissible evidence of identification. There is noquestion of the admissibility of the evidence. The question is of the‘reliability’ of such a claim. In our opinion, the Sessions Judge has rightlychosen not to believe this witness for the purposes of identification of theaccused.

16. It was also criticised by the defence that the identification parade could have been held and not holding the identificationparade even in a case of a witness who did not know the names of the accusedwas a major defect in the identification. If, indeed, the names of theaccused were not known to the witness, it would have been better to hold theidentification parade but, the non-holding of the identification parade wouldnot demolish their evidence to which we have referred to earlier. Therecannot be a dispute that this witness was present at the relevant time. Hehas established the presence of Malliga (P.W.1) and he has also described theway the assault was made on deceased Shankar, which evidence renderscorroboration to the evidence of Malliga (P.W.1). To that extent, we wouldaccept the evidence of Venkatesan (P.W.3).

15. A very serious criticism was made on account of the claim of Malliga (P.W.1) that she saw all the accused persons along with the fatherof the fifth accused in the custody of the police on the very next day, i.e.on 31-3-1996. We must say that the evidence is not very clear on that issueand it has only to be inferred that this happened on the next day. However,

it is clear that the witness was committing error in respect of the day onwhich he saw the accused persons in the custody. Admittedly, the accusedpersons were taken in custody only later on in the first week of the nextmonth after they had surrendered on 2-4-1996. Therefore, this claim of thewitness could at the most be said to be an aberration and indeed, it isunthinkable that the accused persons who were taken into custody were let offby the police so as to enable them to surrender later on. Learned counsel forthe defence, however, tried to use that circumstance in his favour by sayingthat the accused persons were indeed taken into custody and then on that basisthe First Information Report was prepared at the instance of the investigatingofficer. When we see the cross-examination of the investigating officer, thefirst claim made is to that effect. Learned counsel very seriously assailedthe First Information Report for the obvious reasons that this FirstInformation Report if could be put in doubt that would completely remove theinsulation of the evidence of Malliga (P.W.1). Therefore, we are consideringthe aspect of the First Information Report being concocted in greater details.

16. The main assault on the genuineness of the FirstInformation Report was on the basis of the fact that the copy of the expressFirst Information Report did not reach the Magistrate till 2-4-1996. For thispurpose, we were taken through the original records by Mr. Ashok Kumar whopainstakingly points out that strangely enough the statements of the witnessesMallika (P.W.1) and Venkatesan (P.W.3) recorded under Sec.163 have beenregistered earlier in the register maintained for that purpose in the court ofJudicial Magistrate, Arcot while the express First Information Report, whichwas supposed to have reached immediately or at least on the next day, isregistered later on at serial No.582. From this learned counsel points outthat this could only happen if in reality no First Information Report wasactually given by Mallika (P.W.1) and it was only a concocted documentparticularly after the arrest of the accused persons on 2-4-1996. It has tobe seen in this behalf that the accused persons were arrested only on 2-4-1996when they had surrendered before the Judicial Magistrate, Arcot. The argumentis clearly unacceptable. In the first place, merely because the express FirstInformation Report is registered subsequently it does not mean that it did notreach earlier. It could be that the concerned clerk failed to note thedocuments chronologically. We ourselves saw the documents sent by theinvestigating officer. All those documents bear the date of 31-3-1996 whichis signed in the green-ink by the Magistrate. The whole record in fact wasreceived by the Magistrate has been initialled by him by putting the dates.It is unfortunate that the Public Prosecutor did not get that clarified.However, there is nothing to suggest that the said First Information Reportwas actually not signed. In this behalf, the evidence of the investigatingofficer is clear enough to suggest that the investigating officer had sent theexpress First Information Report. The claim of Kuppan (P.W.14) that heregistered the offence and sent the express First Information Report to theJudicial Magistrate, Arcot has not been seriously challenged in thecross-examination. In this behalf it is to be seen that Kuppan (P.W.14) alsosaid that after he sent the express First Information Report after obtainingthe thumb impression of P.W.1 Mallikka on that he sent P.W.1 Mallika and Kumarfor treatment to the doctor. When we see the evidence of Dr. Rajeswari(P.W.9), it is clear that P.W.1 Mallika and Kumar were produced before her for

treatment on 31-3-1996 only. Now it is obvious that the First InformationReport could not have been sent on 2-4-1996 because it was already sent evenbefore P.W.1 Mallika and Kumar were sent. They have actually been examined byP.W.9 Dr. Rajeswari on 31-3-1996 and there is no dispute about that. Thesending of the First Information Report thus cannot be by any stretch ofimagination be extended up to 2-4-1996.

17. In this behalf again it is liable to be seen that the investigating officer has received the information barely within two hours ofthe First Information Report having been registered and this officer hasreached the spot at 5.30 a.m. on 31-3-1996. It is then that he firstexecuted the inquest report (Ex.P-27) and also recorded the statements of theeye-witnesses, including Mallika (P.W.1) and Venkatesan (P.W.3). This wasstated by Mallika (P.W.1) as also by Venkatesan (P.W.3). It is, therefore,difficult to imagine that the names were decided for the first time only onthe arrest of the accused persons because indeed that would not have beenpossible because the accused persons must have surrendered during the courthours, i.e. after the day break. It is difficult to imagine that theinvestigating officer thought for the first time about the names and thenprepared the First Information Report. Once the cloud on the FirstInformation Report goes away then, the whole story becomes crystal clear thatMallika (P.W.1) had deposed about the names of the accused persons, the roleplayed by them, etc. were stated barely within one and a half hours of theincident. That gives the greatest credence to the evidence of Mallika(P.W.1). It is difficult to discard the First Information Report as aconcocted document. We are not prepared to grant that much of intelligence toMallika (P.W.1). The evidence of Mallika (P,.W.1), therefore, standscompletely corroborated firstly by the First Information Report and then bythe evidence of Venkatesan (P.W.3) at least in respect of the manner in whichthe assault took place, the number of persons who took part in the assault,the weapons with which the assault was made, etc. The evidence of Dr.Lalitha (P.W.10) and the post mortem report which describes the injuriessuffered by the deceased Shankar completely support the ocular testimony ofMallika (P.W.1). There are bound to be minor discrepancies in the evidencelike the parts of the body selected by some accused persons for assaulting thedeceased Shankar but, that will be of the minor nature and the core ofevidence of Mallika (P.W.1) and Venkatesan (P.W.3) remains unshaken.

18. Learned counsel further tried to bring in some inconsistencies in the prosecution evidence. It was pointed out that therewas no clothes on the dead body of Shankar when in fact, according to Mallika(P.W.1), he was wearing underwear at the time of the incident. We are notimpressed by this argument at all. That the deceased Shankar was manhandledis a fact and that a lungi was found near the spot is also appears to be afact. It is true that Ragothaman (P.W.4) and Ramachandran (P.W.6) havedescribed the dead body of Shankar was stark naked while the investigatingofficer (P.W.17) had deposed that Shankar was clad in lungi. Whether herhusband was wearing lungi or not at the time of assault would not be easy forMallika (P.W.1) to tell. Her assertion may be in the nature of a aberration.It could be that Shankar was clad in lungi and the lungi got unfurled becauseof the assault. That could be the reasonable explanation.

19. Another contention was that though the cot was drenched with blood, it was not seized by the investigating officer and that showed thetainted investigation. It is true that if the cot was stained with blood, itwould have been better for the investigating officer to seize the same.However, the question was not whether the deceased was murdered on a cot ornot – the question was whether he was actually murdered by the accusedpersons. Non-seizure of the cot would not, in our opinion, bring the wholeprosecution into suspicion.

20. It was contended by the learned counsel that Mallika’s (P.W.1) version that the first injury was inflicted on the neck of thedeceased was obviously false as Dr. Lalitha (P.W.10) deposed that there wereno injuries on either side of the neck. In that sense, the learned counselsays that the evidence of Mallika (P.W.1) is not corroborated by the medicalevidence. One fails to understand as to how an omission was put to thewitness Mallika (P.W.1) in respect of the portion which she had not deposed inher examination-in-chief. She had merely stated in her examination-in-chiefthat Shankar, while he was sitting on the cot, was cut on the neck. It wasonly in the crossexamination, the learned counsel took out that the first cutwas inflicted on Shankar on the neck and that she had so stated in Ex.P-1. Itis not understood as to how all this was allowed to be put in thecross-examination much less in the nature of an omission. The omission has tobe in respect of the examination-in-chief where the witness had not statedanything specifically about the neck. All that she had stated was that thefirst accused inflicted cut injuries on the rear portion of the neck.Considering the opportunity of the witness to watch and her obvious inabilityto describe the precise parts of the body, we do not think that there isanything much to be attached to this so-called inconsistency. The contention,therefore, is rejected.

21. Much was said about the evidence of Venkatesan (P.W.3)

also. It was suggested that he had fled away from the scene after seeing theaccused persons wielding the knives and other weapons. We find that thesessions Judge has not relied on the evidence of Venkatesan (P.W.3). We onlysay that the evidence of this witness can be used for the limited purpose,which we have done.

22. It was also tried to be suggested that the prosecution had presented different versions, which were conflicting, in respect of theassault inasmuch as the evidence of Mallika (P.W.1) was contradicted by theevidence of Venkatesan (P.W.3). We have closely seen the said deposition andwe do not find think that there is any conflicting version presented by theprosecution.

23. The argument was also directed towards the reliability of the information leading to the recovery of the weapons at the instance of theaccused persons. We have closely seen Exs.P-20, P-21, P-22 and P-23. Muchargument was directed against the evidence of Kannadurai (P.W.15),Balakrishnan (P.W.16) and Durai Muthusamy (P.W.17). It was tried to besuggested that there were inherent inconsistencies in the evidence. We havealso seen the evidence of Ramachandran (P.W.6) in respect of the recovery of broken rice-pounder (M.O.2), cyclechain (M.O.3) and blood-stained stick(M.O.6). We agree with the sessions judge that none of these witnesses couldbe shaken in the crossexamination and the discovery stood proved. At anyrate, the most important piece of the evidence is that the discovered articleswere stained with human blood. We would expect some explanation on thataccount but, there was none. Some discrepancy regarding the accused having ornot having signed the exhibits was also suggested. However, in our opinion,the sessions judge has correctly read the evidence and has chosen to acceptthat the accused persons discovered the weapons. We do not see any reason todiffer with the said finding.

24. In short, we completely agree with the judgment of the

trial court when the trial court recorded the convictions for the offencesunder Secs.148, 324 read with 149 and simpliciter convictions of accused 4 and5 under Sec.324 as also under Sec.427. The last-mentioned conviction was onaccount of the action on the part of the accused persons damaging theautorickshaw. We were not addressed on this question at all. The judgment ofthe trial court is hereby confirmed. The appeal has no merits and has to bedismissed. It is accordingly dismissed.

Index:YesWebsite:Yes

Jai

To:

1. The Public Prosecutor, High Court, Chennai

2. The Asst. Director of Prosecution, Vellore

3. The District Collector, Vellore

4. The Superintendent of Police, Vellore

5. The Judicial Magistrate, Arcot

6. The Director General of Police, Chennai

7. The Superintendent of Police, Central Prison,