IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 17.11.2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.RAJESWARAN CRIMINAL APPEAL NO.997 OF 2007 Sivalingam .. Appellant/Accused Vs. State represented by the Inspector of Police, Vellore Taluk Police Station, (Crime No.329 of 2005) .. Respondent/Complainant This criminal appeal has been preferred under Section 374(2) Cr.P.C. against the judgment of the learned Principal Sessions Judge, Vellore made in S.C.No.102 of 2007, dated 17.7.2007. For Appellant : Mr.V.Sairam For Respondent : Mr.P.Kumaresan, APP JUDGMENT (The judgment of the court was delivered by M.CHOCKALINGAM, J.) Challenge is made to the judgment of the Principal Sessions Division, Vellore made in S.C.No.102 of 2007, whereby the sole accused/appellant stood charged under Section 302 IPC, tried, found guilty as per the charges and awarded life imprisonment. 2.The short facts necessary for the disposal of this appeal can be stated thus: a)P.W.1 is the husband of the deceased Sakunthala. The sister's daughter of the deceased, by name Manjula, was given in marriage to the accused. They had often quarrel, in which the deceased used to https://hcservices.ecourts.gov.in/hcservices/ interfere and pacify them. 10 days prior to the occurrence, the accused left the house, taking all his goods and utensils, but the said Manjula continued to reside with P.W.1 and his wife. One week prior to the occurrence, the accused came over there and had a quarrel and when the deceased intervened, the accused made a challenge that he would finish her off and so saying, he left the place. b)On 02.08.2005 at about 3.00 p.m., P.W.1 was working in Thirumalai Engineering Works. At that time, he saw the accused crossing the shop fast. Entertaining doubt that he might quarrel with his wife, he followed him. The accused attacked the deceased with M.O.1, stick on her left side ear. P.W.1 shouted at it. The accused immediately took the hidden knife and stabbed the deceased on different parts of her body. This was witnessed not only by P.W.1, but also by the other witnesses, namely P.Ws.6 and 7. Immediately, P.W.1 rushed to the spot, went nearby and took her in an auto of P.W.3 to the C.M.C. Hospital, where she was declared dead by the Doctor, who examined her. c)P.W.1 proceeded to Vellore North Police Station and gave Ex.P.1, the complaint to P.W.10, the Sub Inspector of Police, on the strength of which, P.W.10 registered a case in crime No.429 of 2005 under Sections 294(B) and 302 IPC. Ex.P.7, the FIR was despatched to the Court. d)Tamizharasan, the Inspector of Police, on receipt of the copy of the FIR took up the investigation, proceeded to the spot and made an inspection in the presence of the witnesses. He prepared Ex.P.8 the observation mahazar and Ex.P.9, the rough sketch. He also recovered the bloodstained earth, sample earth, knife and a stick under a cover of mahazar. He went to the hospital and conducted inquest on the dead body of the deceased in the presence of the witnesses and panchayatdars and prepared Ex.P.12, the inquest report. Then, the dead body was sent for the purpose of autopsy. e)P.W.5, the Doctor attached to the Government Medical College Hospital, Vellore, on receipt of the requisition, has conducted autopsy on the dead body of the deceased and has issued Ex.P.6, the post-mortem certificate, wherein she has opined that the deceased would appear to have died of shock and haemorrhage due to the injuries sustained 18 to 24 hours prior to autopsy. f)Pending investigation, the Investigating Officer has arrested the accused at 12.00 noon on 3.8.2005 and he came forward to give confessional statement, which was recorded in the presence of the witnesses. The accused was sent for judicial remand. The Investigating Officer has examined the witnesses and recorded their statements. All the material objects were sent for chemical analysis by the Forensic Science Department. Then, the case was sent to the Vellore Taluk Police Station and was registered in Crime No.329 of 2005. Ex.P.15, the FIR was sent to the Court. P.W.11, the Inspector of Police, took up the further investigation. Ex.P.20, the Chemical Analyst report, Ex.P.21, the Forensic Science report and Ex.P.22, the https://hcservices.ecourts.gov.in/hcservices/ Serologist's report were received. On completion of the investigation, he filed the final report. 3.The case was committed to the court of Sessions and necessary charges were framed. In order to substantiate the charges levelled against the accused, the prosecution examined 11 witnesses and also relied on 23 exhibits and 9 M.Os. On completion of the evidence on the side of the prosecution, the accused was questioned under Section 313 Cr.P.C. as to the incriminating circumstances found in the evidence of prosecution witnesses, which he flatly denied as false. No defence witness was examined. The trial court, after hearing the arguments advanced on either side, took the view that the prosecution has proved the case beyond reasonable doubt, found him guilty as per the charges and awarded punishment as referred to above. Hence this appeal has arisen at the instance of the appellant. 4.Advancing arguments on behalf of the appellant, the learned counsel has made the following submissions: a)According to the prosecution, the occurrence has taken place on 2.8.2005 at about 3.00 p.m. The prosecution has marched three witnesses as eyewitnesses, who are P.Ws.1,6 and 7, out of whom, P.Ws.6 and 7 have turned hostile and thus, their evidence was not useful to the prosecution case. P.W.1, admittedly, is the husband of the deceased and apart from that, the wife of the accused is the sister's daughter of the deceased and thus, they are closely related. During the relevant time, P.W.1, the deceased, the accused and his wife Manjula were living together. There was a quarrel between the accused and his wife, in which the deceased used to interfere and pacify them. Thus, they were on good terms at the relevant time and no motive could be attributed to the accused. The evidence of P.W.1 should be subjected to careful scrutiny test and if done, the lower court should have rejected his testimony. b)From the evidence of P.W.1, it would be clear that when he was in the workshop, he found the accused running with knife and therefore, he followed him and at the time of occurrence, the accused first took the casuarina stick and attacked the deceased and by the said attack, bleeding injury was actually found on the left ear of the deceased and thereafter, the accused took the knife and attacked her and gave 5 stabs on her. Therefore, from the evidence of P.W.1, it is highly doubtful whether P.W.1 could have been the eyewitness to the occurrence for the reason that the evidence of P.W.1 was that when he saw the accused, he was running with knife and if it was correct, there was no need for the accused to attack the deceased with the stick. Hence if the accused was having knife, he should not have attacked the deceased with stick by holding it in his both hands. It is further to be added that the evidence of P.W.1 was consistent that the accused attacked the deceased with stick and there was bleeding injury on the left ear. But, according to P.W.5, the Doctor, who conducted post-mortem, no corresponding injury was found at all and further, according to P.W.5, 7 injuries were actually found and they were noted in the post-mortem certificate, but just five injuries were accounted for and P.W.1 was unable to https://hcservices.ecourts.gov.in/hcservices/ account for the injuries sustained and under these circumstances, it would be quite clear that the medical opinion also did not corroborate with the evidence of P.W.1 and hence P.W.1 could not have seen the occurrence at all. His evidence is not only discrepant, but also self inconsistent and it would not support the prosecution case from any corner and hence it would be highly unsafe to sustain conviction on the evidence of P.W.1 and therefore, it has got to be rejected and the appellant is entitled for acquittal in the hands of this court. 5.The court heard the learned Additional Public Prosecutor on the above contentions and has paid its anxious attention over the same. 6.It is not in controversy that Sakunthala, the wife of P.W.1, was done to death in an incident that took place at about 3.00 p.m. on 2.8.2005. Immediately, from the place of occurrence, it was P.W.1 who took her in an auto of P.W.3 to C.M.C. Hospital, where she was declared dead. Following the inquest conducted by the Investigating Officer and the preparation of the inquest report, the dead body was subjected to post-mortem by P.W.5, the Doctor, who has given his categorical opinion as a witness before the court and also through his post-mortem certificate that the deceased would appear to have died of shock and haemorrhage due to the injuries sustained. This fact was never questioned by the appellant before the trial court. Hence it has got to be factually recorded so. 7.In order to substantiate the fact that it was the accused who stabbed the deceased to death, the prosecution marched three witnesses, namely P.Ws.1,6 and 7. P.Ws.6 and 7 unfortunately have turned hostile. Hence no comment could be made against the prosecution that it did not examine any independent witness. The only evidence that was available for the prosecution was P.W.1. It is also true that P.W.1 is the husband of the deceased. It is a settled proposition of law that merely because the witness to the occurrence happened to be the close relative of the deceased, his evidence cannot be discarded, but it should be subjected to careful scrutiny test. Having exercised the said test, the court is satisfied that it has inspired the confidence of the court. 8.According to P.W.1, during the relevant time, just 10 days prior to the occurrence, all were living together and the accused and his wife had often quarrel and it was the deceased who used to interfere and pacify the situation. One week prior to the occurrence, there was a quarrel between them and the deceased interfered. At that time, it was the accused who challenged that I would finish you off and so saying, he left the place. According to P.W.1, on the date of occurrence at about 3.00 p.m., he was in the workshop and on seeing the accused proceeding fast towards his house, he entertained doubt that he might quarrel with his wife and immediately, he followed the accused and near the place of occurrence, the accused took the casuarina stick from the ground and attacked the deceased. Immediately, P.W.1 shouted at it. On hearing the same, the accused took the hidden knife and attacked the deceased on different parts of her body. Immediately, P.W.1 took the deceased in an auto of P.W.3 to https://hcservices.ecourts.gov.in/hcservices/ the C.M.C. Hospital, where she was declared dead. At this juncture, it is pertinent to point out that the police station is situated 4 kms. away from the place of occurrence. First, P.W.1 took the deceased from the place of occurrence to the hospital, where she was declared dead and thereafter, he went to the police station and thus, all have taken place within a short span of time. Further, the FIR has reached the concerned Judicial Magistrate at 7.00 p.m. on the very day, i.e. within a few hours. 9.Now, the contentions put forth by the learned counsel for the appellant remain to be considered. According to him, the evidence of P.W.1 should not be believed, since it did not corroborate with the evidence of P.W.5, the Doctor. From the evidence of P.W.1, it would be quite clear that on seeing the accused running towards his house, he followed the accused and at the place of occurrence, the accused took the casuarina stick from the ground and attacked her. It is true, according to P.W.1 and as per Ex.P.1, the complaint, the accused attacked the deceased on her left side ear and there was bleeding injury. This can be taken as an exaggeration made by P.W.1 as to the injuries caused. It would be quite clear that when he took the stick and attacked the deceased, actually no injury has been sustained. Immediately, P.W.1 shouted and on hearing the sound of P.W.1, the accused took the knife and attacked her. According to P.W.1, the accused attacked the deceased five times with the knife. But, according to P.W.5, the Doctor who conducted post-mortem, 7 injuries were found on the dead body of the deceased and thus, 7 attacks have been made by the knife. Under these circumstances, the court is of the considered opinion that there are some discrepancies noticed, but, because of which the court is unable to see any reasonable doubt to discard the testimony of P.W.1. According to P.W.1, both stick and also the knife were thrown by the accused in the place of occurrence and he fled away from the place of occurrence. The Investigating Officer has also recovered them from the place of occurrence. Further, the accused was also arrested on 3.8.2005 and was sent to judicial remand. 10.From the evidence available, it could be seen that though the prosecution rested its case exclusively on the evidence of P.W.1, in the considered opinion of the court, his evidence has got to be accepted, since it has inspired the confidence of the court. P.W.1 has clearly pointed out that one week prior to the occurrence, the accused left the place challenging that he would finish her off and thus, it was looming in his mind and thereafter, on the date of occurrence, he has committed the offence. The Indian law requires only evidence on quality and not on quantity. It is true, the prosecution has rested its case on the evidence of P.W.1. So long as it inspired the confidence of the court and it was the accused who stabbed the deceased to death, this court has no option than to record a finding that he is guilty of murder. Hence the lower court was perfectly correct in coming to a conclusion both factually and legally. https://hcservices.ecourts.gov.in/hcservices/ 11.In the result, this criminal appeal fails and the same is dismissed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar vvk To 1.The Principal Sessions Judge, Vellore. 2.The Inspector of Police, Vellore Taluk Police Station. 3.The Additional Public Prosecutor, High Court, Madras. 4.The Superintendent, Central Prison, Vellore. 1 CC To Mr.V.Sairam, Advocate, SR NO.63924 CRL.A.NO.997 OF 2007 nsm(co) pmk/1.12.2008. https://hcservices.ecourts.gov.in/hcservices/