IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:09/09/2004 CORAM THE HON'BLE MR.JUSTICE R.BALASUBRAMANIAN and THE HON'BLE MR.JUSTICE N.KANNADASAN C.A.NO.1167 OF 2001 1.Kannaiyan 2.Anbarasan 3.Balamurali @ Balamurugan 4.Venkatesan ..Appellants -Vs- State represented by Inspector of Police Thalaignayar Crime No.22/2000 ..Respondent Prayer: Criminal appeal against the judgment, conviction and sentence of life imprisonment dated 22.11.2001 passed against A1 to A4 for an offence under section 302 read with section 34 I.P.C and sentence of one year rigorous imprisonment to A4 under section 324 I.P.C by the learned Principal Sessions Judge, Nagapattinam. !For Appellants : Mr.V.Gopinath, SC for : Mr.A.Kalaivanan ^For Respondent : Mr.E.Raja, APP :JUDGMENT (Judgment of the court was delivered by Justice R.Balasubramanian) A1 to A4 in S.C.No.111/2001 on the file of the Court of Sessions, Nagapattinam are the appellants in this appeal. All of them were charged for an offence under section 302 read with section 34 I.P.C. In addition to the above, A4 was also charged for an offence under section 307 I.P.C for making an attempt on the life of P.W.1. The learned Sessions Judge convicted all the accused under the first charge referred to above and sentenced them to undergo imprisonment for life together with a fine of Rs.1,000/- each, carrying a default sentence. However, A4 was acquitted of the offence under section 307 I.P.C and instead, he stands convicted for an offence under section 324 I.P.C and sentenced to a fine of Rs.1,000/-, carrying a default sentence. It is that conviction which is in challenge in this appeal. Heard Mr. V.Gopinath learned senior counsel appearing for the appellants and Mr.E.Raja learned Additional Public Prosecutor appearing for the State. 2. The occurrence is shown to have taken place at about 3.00 p.m on 08.01.2000, during which, one Mathivanan, who is stated to have been attacked by A1 to A4, succumbed later on to the injuries on 22.01.20 00 and in the course of the same transaction, P.W.1 is also shown to have been attacked by A4. To sustain their case, the prosecution examined P.Ws.1 to 3 as eye witnesses to the occurrence, besides medical and other official witnesses. The case of the prosecution as spoken to by P.W.1 is as follows: "A1 is her father-in-law. A2 is A1's brother-in-law. A3 and A4 are the sons of A1. She is the wife of the deceased. There was a property dispute between the accused on the one hand and her husband. A panchayat was convened in regard thereto on the day of the occurrence, which was attended to by her husband. He was returning home. En-route, he was way-laid by all the accused and they attacked him, which she witnessed. They attacked her husband with sticks and suluki. A1 and A2 attacked her husband on his head and hands with suluki. A2 also attacked her husband on his head and hands. A3 and A4 attacked her husband on his head with a wooden log. She ran towards her husband and she was also beaten. A4 attacked her on her head and hands with suluki. Her husband fell down and all the accused ran away. P.W.2, a local villager, took her and her husband to the Government Head Quarters Hospital at Nagapattinam, where they were admitted as in-patients for treatment. On the third day, her husband was transferred for better treatment to the Government Head Quarters Hospital at Thanjavur and thirteen days after the date of occurrence, her husband died." 3. P.W.1 identified the weapons of offence used by the accused. P.W.7 is the Casualty Medical Officer in the Government Head Quarters Hospital at Nagapattinam. At about 4.30 p.m on 08.01.2000, injured Mathivanan/since deceased was brought before him by P.W.2 and the injured told him that at about 3.00 p.m on that day, five persons attacked him. P.W.7 noticed the injured smelling arrack. He found on him various injuries as noted in Ex.P.6/accident register and they are as follows: "1) Diffusion left fore arm. 2) Contusion 12 cm x 2 cm left proximal part fore arm (L) 3) Punctured injury + cm x + lower part of left arm lateral aspect 4) Contusion 8 cm x 6 cm right arm 5) Incised injury 4 cm x , cm left side of the occipital 6) Punctured injury + x , right arm lower part lateral aspect X-Ray left fore arm, Right arm - Lat" He also examined P.W.1, who was brought before him by P.W.2, at about 4.40 p.m on the same day and she informed him that she was attacked by five known persons with a stick at about 3.00 p.m on 08.01.2000. On examining her, he found on her the following symptoms: "1.Incised injuries 5 cm x 1 cm above occiput 2.Contusion 8 cm x 4 cm left fore arm 3. Diffused left fore arm" Ex.P.7 is the accident register and Ex.P.8 is the wound certificate. The Doctor is of the opinion that the injuries noticed by him on injured Mathivanan/since deceased and P.W.1 could have been caused in the manner and at the time alleged. In Ex.P.8, injury No.3 found on P.W.1 is described as grievous. (At this stage, this court is informed by the learned senior counsel that as the X-Ray taken for this injury had not been marked and therefore, the learned trial Judge was inclined to convict A4 only for the offence under section 324 I.P.C and that finding had become final). 4. P.W.10 was the Head Constable in the Investigating Police Station during the relevant time. At about 4.45 p.m on 08.01.2000, he received information from the Nagapattinam Government Hospital police outpost about this incident; he reached the hospital at 6.00 p.m and collected Exs.P.11 and P.12 namely, the hospital intimation regarding injured Mathivanan and P.W.1. He examined Mathivanan; recorded his statement and took his left thumb impression in it. Ex.P.13 is the said statement. He came back to the police station and registered it in Crime No.22/2000 for offences under sections 323 and 324 I.P.C. Ex.P.14 is the printed first information report prepared by him. He sent the material records to the court as well as to the higher officials. On the same day at 6.00 p.m., he examined A1 in the hospital itself (he was there as an in-patient) and recorded his statement. He registered that complaint in his police station Crime No.21/2000 for offences under sections 294-B and 323 I.P.C. He examined P.Ws.2, 3, 4 and others and recorded their statements. He went to the scene of occurrence and in the presence of P.W.4 and another, prepared Ex.P.1, the observation mahazar. Then he prepared Ex.P.15, the rough sketch. As injured Mathivanan was not in a position to speak on 09.01.2000, he could not record his statement again. He arrested A1, A2 and A4 on 21.01.2000 and sent them for judicial remand. He received an information from the hospital that injured Mathivanan died on 21.01.2000 and therefore handed over the case diary to the Investigating Officer. Ex.P.10 is the death intimation. 5. P.W.12 is the Investigating Officer in this case. On receipt of Ex.P.10, the death intimation, from the police constable given by the Government Head Quarters Hospital at Thanjavur, he went to the police station at 10.30 a.m on 22.01.2000 and altered the section of offence into one under section 302 I.P.C. He prepared Ex.P.17, the altered printed first information report and sent the same to the court as well as to the higher officials. Then he reached the mortuary in the hospital at Thanjavur and prepared Ex.P.18, the observation mahazar, in the presence of P.Ws.2 and 3. He examined P.Ws. 1, 2, 3 and others and recorded their statements. From 11.30 a.m on that day, he conducted inquest over the dead body in the presence of panchayatdars and witnesses and prepared Ex.P.19, the inquest report. He examined further witnesses and recorded their statements. On prior information, he arrested A1, A2 and A3 on 27.01.000 in the presence of P.Ws.5 and 6 and examined them. A1, at that time, gave a confession statement, the admissible portion of which is marked as Ex.P.20 in this case. Pursuant to Ex.P.20, M.Os.1 to 4 came to be recovered under Ex.P.1 attested by witnesses. He reached the police station with the material objects and the accused and sent them for judicial remand. He went to the scene of occurrence on 27.01.2000 and prepared Exs.P.22 and P.23, the observation mahazar and rough sketch respectively. He examined further witnesses and recorded their statements. 6. P.W.2 would depose that "he saw all the accused chasing Mathivanan/since deceased and he also followed them. Near the house of Mathivanan, all the accused attacked him with suluki and wooden log. A1 was armed with suluki and he is not aware as to the nature of weapon in the hands of the other accused. P.W.1 was there and she was beaten by A4. Mathivanan/since deceased fell down and all the accused ran away. He took both the injured to the Government Hospital at Nagapattinam and admitted them as in-patients. He also accompanied Mathivanan when he was transferred from the Government Hospital at Nagapattinam to the Government Hospital at Thanjavur. Mathivanan died thirteen days after the incident." P.W.3 is the younger brother of the deceased and he would also claim to have seen the entire occurrence. He would also state that P.W.2 took both the injured to the Government Hospital at Nagapattinam for treatment and that his brother died fifteen days after the occurrence. P.W.4 witnessed the preparation of Ex.P.1 , the observation mahazar. P.Ws.5 and 6, who were examined to speak about the arrest of the accused and recording their statements under section 27 of the Indian Evidence Act, turned hostile. As suggested by P.W.7, injured Mathivanan was transferred to the Government Head Quarters Hospital at Thanjavur. P.W.11, during the relevant time, was the Medical Officer in the Government Medical College Hospital at Thanjavur. On 10.01.2000 at about 2.00 p.m., injured Mathivanan, who was transferred from the Government Hospital at Nagapattinam, was brought before him for further treatment. He examined him immediately and found the injured unconscious. As the injured had head injuries, steps were taken to take X-Rays. Mathivanan was admitted as an in-patient. Ex.P.16 is the accident register given by him. P.W.9 is another Medical Officer in the Government Hospital at Thanjavur. He would state that he received the information namely, Mathivanan was struggling for his life in the neuro ward at about 00.40 hours on 22.01 .2000 and he immediately went to attend him. He would also state that despite his best efforts, Mathivanan did not survive and he died. He sent Ex.P.10/death intimation to the police. P.W.12 continued the investigation further, by examining P.Ws.7, 8, 9 and 11 and recorded their statements. He sent the case properties to the court with Ex.P.24/requisition to subject the same for chemical examination. As an enclosure to Ex.P.25/court's letter, the material objects were sent to the laboratory and Ex.P.26 is the chemical examiner's report. P. W.12 was succeeded by P.W.13 and he, after verifying the investigation already done by the earlier Investigating Officer, filed the final report before court on 07.08.2000 against the accused for offences under sections 302 read with section 34 I.P.C., 326 I.P.C and 327 I.P.C. When the accused were questioned under section 313 of the Code of Criminal Procedure on the basis of the incriminating materials made available against them, they denied each and every circumstance put up against them as false and contrary to facts. No witnesses were examined on their side. But however, the accused marked Ex.D.1 through P.W.7 in his cross examination and marked Ex.D.2 through P.W.10 during his cross examination. 7. The question that falls for decision is whether the conviction of the accused for the offences referred to above is supported by any legal material? Mr.V.Gopinath, the learned senior counsel appearing for the appellants, would submit the following points: a) The place of occurrence is shifted to the advantage of the prosecution. b) P.Ws.2 and 3 could not have witnessed the occurrence at all and therefore their evidence should be disbelieved. c) P.W.2 had admitted that A1 had sustained injuries in the same transaction in which Mathivanan/since deceased came to sustain the injuries. This means, there was a quarrel between the two groups. If that is so, then the case of each individual must be considered on their own individual acts. d) When there is a quarrel, there is no question of sharing the common intention by one accused with the other accused and it stands eliminated. e) The prosecution had failed to place before the court any medical evidence to show what is the treatment given to Mathivanan/since deceased between the date of the incident and the date of his death. This vitiates the entire prosecution case and in any event, in the absence of medical evidence, even the individual, assuming he caused the fatal attack, cannot be found guilty for an offence under section 302 I.P.C but only for a lesser offence. For this purpose, the learned senior counsel relied upon a Division Bench judgment of this court in the case reported in 2001-1 L.W.Crl.Pg.354 (Nammalwar Vs. State, etc.) f) There is discrepancy in the evidence of the witnesses as to the weapons used by each of the accused vis-a-vis the deceased as well as P.W.1 and the benefit of the same should be given to the accused. We heard the learned Additional Public Prosecutor on all these points. The learned Additional Public Prosecutor, relying upon the judgment reported in 1999 Volume I S.C.C. Pg.120, would submit that when there is medical evidence to show that the death was caused by septicemia, which was due to head injury and the said injury was sufficient in the ordinary course of nature to cause death, the conviction under section 302 I.P.C would be proper. 8. We applied our mind to the various materials on record. On account of the injuries sustained on 08.01.000, the injured (Mathivanan) died on 22.01.2000. However, when he was alive, he was examined by P.W.10, the Head Constable, and his statement was recorded, in which, his left thumb impression was obtained. Since he died after giving that statement, that statement becomes admissible in evidence as a dying declaration. We perused Ex.P.13 and the oral evidence of P.W.10. Though P.W.10 had not taken the precaution of having Ex.P.13 attested by the Medical Officer on duty at that time namely, at the time of recording, in our opinion, that lapse by itself, on the totality of the circumstances surrounding the recording of Ex.P.13, would not enable this court to doubt the very recording of Ex.P.13. It may be noticed here that, on Ex.P.13, a crime was registered only for offences under sections 323 and 324 I.P.C. Though it is expected of a police officer to send the material records namely, the complaint and the first information report, to the court at the earliest point of time to avoid any criticism on the truth of it, yet we find that Exs.P.13 and P.14 had reached the court only at 1.00 p.m on 12.01.2000. It is no doubt true that there is a lapse on the part of the Investigating Police Station in not sending these material records in time to the court. But however, having regard to the nature of the offence that stood registered on that day and the death of the injured itself taking place only on 22.01.2000, we are not inclined to attach much importance to the delay caused in sending Exs.P.13 and P.14 to the court. In other words, in our considered opinion, the delay in sending Exs.P.1 3 and P.!4 to the court is not going to discredit the case of the prosecution, if it is otherwise trustworthy. Therefore we are inclined to accept the contents of Ex.P.13 as a true version. 9. In the background of our reflection of mind on Ex.P.13, we proceeded to analyse the arguments advanced by the learned senior counsel appearing for the appellants. It is no doubt true that in Ex.P.13 it is stated that the attack took place in the house of the victim. But the uniform evidence of P.Ws.1, 2 and 3 is that, as the victim was on his way back home, he was way-laid and attacked. P.W.1 would admit in her evidence that the place of attack is hardly 50 feet away from her house. Therefore, the evidence of P.W.1 as referred to above and the contents of Ex.P.13 namely, the injured had returned to his house, cannot be necessarily taken to mean that the occurrence had taken place only inside the house and not anywhere else. The expression used by the injured in Ex.P.13 that after panchayat, he had come back to his house, does not rule out the position that he was on his way back to his house and the place of occurrence is shown to be so near to his house. From a perusal of Ex.P.15/rough sketch, it is seen that from the place of attack, the house of the victim is on the southern side and in between, there are no other houses. Therefore, we do not find much of a difference regarding the place of occurrence as set out in Ex.P.13 and the oral evidence of P.Ws.1, 2, and 3 and accordingly, we reject the argument of the learned senior counsel for the appellants that there is a serious doubt as to where exactly the occurrence took place. Now let us find out whether P.Ws.2 and 3 could be eye witnesses at all to the occurrence? We have already concluded that Ex.P.13 is a true version. In Ex.P.13, the name of P.W.3 is not mentioned as an eye witness at all. We are fully aware that a mere omission to mention the name of any person as an eye witness in the earliest information lodged by itself would not mean that persons other than whose names are mentioned in the complaint could not be examined as eye witnesses. It all depends upon the facts of each case and the observing capacity of the individual, who lodges the information. But the facts in this case are slightly disturbing us i.e., absence of the name of P.W.3 in Ex.P.13 as an eye witness could be viewed seriously or not? P.W.3 is none else than the younger brother of the deceased in this case and brother-in-law of P.W.1. One can understand if there is lack of power to observe a stranger eye witnesses in the scene of occurrence. But at the same time, it must be remembered that the presence of a thick relative like a brother can never be lost sight of by the injured in this case. We find that P.W.3 had not even chosen to go to the hospital along with his elder brother ( deceased) and sister-in-law (P.W.1), when they were taken by P.W.2 to the hospital. Therefore the inaction on the part of P.W.3 in not accompanying his injured brother and sister-in-law to the hospital, coupled with the omission of his name in Ex.P.13 as an eye witness present at the scene of occurrence, does not totally rule out the possibility of P.W.3 not being present at the scene of occurrence. His evidence before court is also not convincing as to whether he could have witnessed the occurrence at all. He would state in his evidence that the occurrence went on for almost an hour and about 100 to 150 people gathered at the scene. P.W.1, in contrast, would state that the entire occurrence was over in ten minutes. In her evidence, she does not mention about the presence of a large body of people at the scene of occurrence. P.W.2 is totally silent on both the aspects. Going by the overall materials noted above, we have a lingering doubt as to whether P.W.3 was present at the scene and witnessed the incident itself. Therefore, we are inclined to give that benefit of doubt in favour of the accused. So, we hold that P.W.3 could not have been present at the scene of occurrence at all and we have to necessarily eliminate his evidence from consideration. 10. Then, we examined the case of the prosecution that P.W.2 is also an eye witness to the occurrence. The fact remains established that P.W.2 took the injured/P.W.1 and Mathivanan/since deceased to the hospital. Exs.P.6 and P.7, the accident registers issued by P.W.7 for the deceased and P.W.1 respectively do show that P.W.2 brought both of them to the hospital. P.W.7 in his oral evidence would also state that P.W.2 brought P.W.1 and the deceased before him. Therefore there cannot be any doubt that P.W.2 accompanied Mathivanan/since deceased and P.W.1 to the hospital. But still, the question is whether he witnessed the occurrence or he came to the scene of occurrence later and then took the injured to the hospital? P.W.2 appears to be related to P.W.1, the deceased and P.W.3. In Ex.P.13, it is not clearly mentioned that P.W.2 is an eye witness to the occurrence. What all is said in Ex.P.13 is that, this incident is known to P.W.2 and Anbazhagan (not examined). In our considered opinion, during the transit time namely, from the place of occurrence to the Government Hospital at Nagapattinam, there is every possibility of both the injured telling P.W.2 about the occurrence and therefore, when in Ex.P.13 it is stated that the occurrence is known to P.W.2 and another, it can be read to mean that he knew it from the injured. In other words, the wording in Ex.P.13 would be that P.W.2 and the other had witnessed the occurrence. We are strengthened to say this, since if really P.W.2 had witnessed the occurrence, then P.W.1 would not have failed to mention in her evidence that P.W.2 witnessed the occurrence. But on the other hand, from a perusal of her entire evidence, we find that she no-where mentions the presence of P.W.2 anywhere near the scene. In other words, there is total omission in her evidence about the presence of P.W.2 at the scene, either nearer or at a far off place, from where, he could have seen the occurrence. We have already discarded the evidence of P.W.3 on the ground that he could not be an eye witness. Even assuming for a moment without admitting that he can also be treated as such, even then, we find that P.W.3 also does not speak about the presence of P.W.2 at the scene of occurrence (We have applied our mind to the evidence of P.W.3 only for the limited purpose of finding out whether P.W.2 could have been present at the scene or not). Therefore, we have no hesitation at all to conclude once again that it would not be safe to act upon the oral evidence of P.W.2 as an eye witness to the occurrence, since his presence is open to a serious doubt. 11. This leaves the court with the oral evidence of P.W.1 and the dying declaration/Ex.P.13. P.W.1 is an injured witness. P.W.1 suffering an injury in the incident is found mentioned in Ex.P.13. Therefore there cannot be any doubt that the transaction in which Mathivanan came to sustain the injuries, to which he succumbed later on, his wife (P.W.1) also had sustained injuries. Therefore even at this stage we conclude that P.W.1's presence at the scene cannot be disputed at all. It is a well settled position in law that a man, making a statement in anticipation of his death, may not lie and normally the statement made by him is accepted by the court in it's letter and spirit. It is also a well settled position in law that witnesses may lie but not documents. Therefore it is our duty to find out whether the evidence of P.W.1 is in accordance with the terms of Ex.P.13? In Ex.P.1 3, the injured/Mathivanan/since deceased had attributed three overt acts to different accused as far as he is concerned. According to Ex.P.13, A1, with M.O.1/suluki,