Bail Slip That the accused namely Mani, Vijaya (Accused 3 & 4/Appellants 3 & 4) were directed to be released on bail by order of this Court dated 10.03.2005 and made in Crl.M.P.No.1561/05 in Crl.A.No.1059/04. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 13.09.2006 CORAM THE HONOURABLE MR. JUSTICE R.BALASUBRAMANIAN AND THE HONOURABLE MR. JUSTICE V.DHANAPALAN CRL. APPEAL NO. 1059 OF 2004 1. Sundar 2. Kannadasan 3. Mani 4. Vijaya .. Appellants/Accused - Vs - State rep. by Inspector of Police Vellore Taluk Circle Vrinchipuram Police Station Vellore District. .. Respondent/Complainant Criminal Appeal filed under Section 374 of Cr.P.C against the conviction and sentence passed by the the learned Principal Sessions Judge, Vellore, in S.C. No.No.286/03 dated 26.7.04 as stated therein. For Appellants : Mr. V.Gopinath, SC, for Mr. R.John Sathyan For Respondent : Mr. N.R.Elango, APP JUDGMENT (JUDGMENT OF THE COURT WAS DELIVERED BY R.BALASUBRAMANIAN, J.) The appellants in this appeal are A-1 to A-4 in S.C. No.286/03 on the file of the Court of Sessions, Vellore. The charges framed against the appellants are – Section 120-B IPC (A-1 to A-4); Section 341 IPC (A-3 and A-4); Section 302 IPC (A-1 and A-2); Section 307 IPC (A-2); Section 302 read with 114 IPC (A-3 and A-4) and Section 307 read with 114 IPC (A-4). At the end of the trial, all the accused were found guilty of all the charges and for the offence of murder and with the aid of Section 114 IPC, each one of the convicted person was sentenced to undergo imprisonment for life together with a fine of Rs.1,000/= carrying a default sentence. The https://hcservices.ecourts.gov.in/hcservices/ charge under Section 307 IPC failed and instead the conviction was under Section 324 IPC for which a sentence of one year rigorous imprisonment was awarded with a fine of Rs.1,000/= as against the persons charged originally. We are not referring to the other minor punishments. Hence, the present appeal by the appellants. Heard Mr.V.Gopinath, learned senior counsel appearing for the appellants and Mr.N.R.Elango, learned Addl. Public Prosecutor appearing for the State. 2. The prosecution case is that, pursuant to a criminal conspiracy hatched two or three days prior to the occurrence, namely, 29.5.03, all the accused fatally attacked Natarajan at about 8.15 p.m. on 29.5.03 and in the course of the same transaction and an attempt was made on the life of P.W.1 and, hence, punishable as referred to earlier. The prosecution examined P.W.s 1 to 11 besides marking Exs.P-1 to P-18 and M.O.s 1 to 8. The defence examined the doctor in Government service as D.W.1 and through whom Exs.D-1 and D-2 came to be marked. 3. Umapathy is the husband of A-4. A-1 and A-2 are the sons of A-4 and Umapathy. Umapathy is shown to have died about 17 years prior to the occurrence. A-3 is stated to be the paramour of A-4. A-4 is the sister of P.W.1 and the deceased. P.W.1 is an ex-serviceman. Now let us go into the evidence of P.W.1, who would state that he and the deceased condemned A-4 for her illicit affair with A-3 and yet A-4 could not be corrected. She was also not under the control of P.W.1 and the deceased. Ten days prior to the occurrence, A-4 made a demand on P.W.1 and the deceased for partitioning their father's property. It was 10.00 a.m. and A-2 and A-3 were there. However, P.W.1 and the deceased did not respond to the demand for partition. At that time, A-1 and A-2 by abusing P.W.1 and the deceased filthily, told their mother (A-4) as to why she is asking for partition since one day or other they would kill them (P.W.1 and the deceased). P.W.1 kept quiet. At about 8.15 p.m. on 29.5.03 (occurrence day), when P.W.1 and the deceased were going towards the shop and near the water channel at Kannikoil, A-3 and A-4 intercepted and restrained them. A-4 tightly held P.W.1, while A-3, after assaulting Natarajan, since deceased, with a stick, held him tightly. A-1, with a knife in his hand, stabbed on the left cheek of Natarajan and when Natarajan attempted to prevent the second attack, it landed on his right thumb resulting in it being severed; A-2 attempted to cut on the head of P.W.1, which P.W.1 successfully prevented, but, however, it resulted in an injury on his right hand. The pen knife, which A-2 had, fell down. A-2, removing the knife from his waist, cut on the left ear and leg of P.W.1 and on P.W.1 trying to move away, he fell down. M.O.s 1 to 3 are the weapons used by the accused. P.W.1 had sustained abrasions. While A-4 was holding Natarajan, she commented that he must be cut and that is how A-1 and A-2 had cut on the left ear of Natarajan. P.W.1 shouted about the incident, which made P.W.3 and others come to the crime scene and on seeing them, the accused made good their escape with the weapons in their hands. P.W.1 and his younger brother, Natarajan (since deceased) were taken to the Government Hospital, Vellore, where, despite treatment, Natarajan died at about 10.45 p.m. P.W.1 did not get himself admitted as an in-patient and, therefore, coming out of the hospital, he sent word to his relatives. There he was examined by the police and he gave the complaint. Ex.P-1 is the said complaint. https://hcservices.ecourts.gov.in/hcservices/ 4. P.W.8 is the Sub-Inspector of Police in the investigating police station, who on receipt of information from the hospital at about 12.00 in the night on 25.9.03, reached the hospital and by examining P.W.1 recorded his statement. He read it over to P.W.1 and then took his signature in it. Ex.P-1 is the said complaint. He came back to the police station at 01.30 hours and registered the said complaint in crime No.223/03 under Sections 341, 307 and 302 IPC. Ex.P-11 is the printed first information report prepared by him, which he sent to the court as well as to higher officials. P.W.11 is the investigating officer, who by collecting the case records at 2.30 a.m. on 30.5.03 from P.W.8, proceeded to the scene of occurrence. There, in the presence of P.W.5 and another, he prepared the observation mahazar, Ex.P-5 and drew the rough sketch, Ex.P-17. At 6.00 a.m. on 30.5.03, in the Government Hospital, Vellore, he conducted inquest over the dead body of Natarajan in the presence of panchayatadars and witnesses and prepared Ex.P-8, the inquest report. During inquest he examined P.W.s 1, 4 and others by recording their statements. From the crime scene he recovered bloodstained earth and sample earth under Ex.P-6 attested by the same witnesses. At 4.00 p.m. on that day, on prior information, he arrested A-1 near the river bed in the presence of P.W.6 and another and examined him. A-1 gave a voluntary confession statement, the admissible portion of which is Ex.P-7, pursuant to which at 6.00 p.m. on the same day, M.O.s 1, 6 and 8 came to be recovered under Ex.P-8 attested by the same witnesses. Then he sent the requisition for post- mortem through P.W.9. 5. P.W.9 is the police constable, who carried the requisition to the hospital and identified the dead body. After post-mortem, he removed M.O.7 from the dead body and handed over the same to the investigating officer, which was recovered under Form-95/Ex.P-12. P.W.3 is the doctor, who did post-mortem on the dead body on receipt of Ex.P-3, the requisition at 12.05 p.m. on 30.5.03. During post-mortem he found various symptoms as noted by him in Ex.P-4, the post-mortem report. The symptoms noted by him are as hereunder :- "External Injuries : 1) Sutured wound over left knee joint 8 cm length in front of lateral side portion at upper border. On exploration, 20 ml blood clots found with congested tissues underneath. 2) Sutured wound near left eye and lateral aspect 3 cm length. On exploration pericranial haematoma present over left frontal region with congestion of tissues. 3) Black coloured abrasion over left cubital fossa 4 cm x 1 cm. On exploration congestion of tissues underneath. 4) Incised wound over right thumb 2 cm x ½ cm x ½ cm on outer aspect. Internal : 1) Thorax : Position of organs – Normal; Ribs – Normal. 2) Heard : Normal – Weight – 260 gms. Cut section – Right side chambers about 30 ml blood clots found. Left side chambers empty. Lungs : Right Lung – 530 gms ; Left Lung – 500 gms. Cust section – Pale. https://hcservices.ecourts.gov.in/hcservices/ 4) Hyoid bone intact. 5) Stomach : Undigested food particles about 200 ml. C/s pale mucosa. 6) All other viscera – C/s pale. 7) Skull : Fracture of left frontal bone with displacement – 3 cm length with subdural haematoma of about 200 ml with 3 cm thickness found over left frontal lobe. Membranes – congested. Brain – Wt. - 1400 gms. Cut section congested." The doctor opined that death would have occurred 12 to 16 hours prior to autopsy as a result of intra-cranial haemorrhage due to skull bone fracture. Weapons like M.O.s 1, 2 and 3 could have caused the injuries found by him on the dead body. 6. P.W.11 continued his investigation further by examining witnesses and recording their statements. He recovered M.O.7 produced by P.W.9, the constable, who was present during post-mortem. He sent A-1 for judicial remand and the case properties were sent to the court. At 12.30 p.m. on 1.6.03 he arrested A-2 in the presence of P.W.7 and another and examined him. A-2 gave a voluntary confession statement at that time, the admissible portion of which is Ex.P-9. Pursuant to Ex.P-9, M.O.s 2 and 3 came to be recovered under Ex.P-10 attested by the same witnesses. P.W.10 is the Magisterial Clerk, who speaks about the receipt of the case properties along with Ex.P-13, the requisition given by the investigating officer. He sent the case properties to the laboratory as an enclosure to court's letter, Ex.P-14. Exs.P-15 and P-16 are the chemical examiner's report and serologist's report. P.W.6 witnessed the arrest of A-1, his examination; his confession statement and the recovery as already spoken to by P.W.11. P.W.7 witnessed the arrest of A-2, his examination; his confession statement leading to the recovery as already spoken to by P.W.11. P.W.5 witnessed the preparation of Ex.P-5, the observation mahazar and recovery of M.O.s 4 and 5 under Ex.P-6. P.W.4 is the wife of the deceased. Apart from giving the family details and the demand for partition made by A-4, as already spoken to by P.W.1, she would state that on the occurrence day around 8.15 p.m., P.W.1 and her husband went to the shop and she heard P.W.1 shouting that he had been cut. Immediately P.W.4 rushed to the scene followed by others and on reaching the scene she found A-2 and A-1 leaving in a TVS-50 motorcycle with the knife and A-3 and A-4 were there with the stick. A-4 started running by suggesting to A-3 that he must also escape. She found her husband lying with an injury on the head and P.W.1 having injuries on his left cheek, left leg and left hand thumb. Both the injured were taken in an autorickshaw to the Government Hospital, Vellore, where her husband died at 10.15 p.m. P.W.2 is the medical officer in the Government Hospital, Vellore, before whom at 12.10 p.m. on 30.5.03 P.W.1 appeared along with one Murugan. When examined, P.W.1 told him that he received the injuries on 29.5.03 near Kanaru water channel at the hands of two known persons present in the midst of a mob of six or seven persons. On him, he found the following symptoms, which is found noted in Ex.P-2, the accident register :- "1) Bleeding cut injury left middle finger 6 cm x skin deep. https://hcservices.ecourts.gov.in/hcservices/ 2) Bleeding raw surface palmar side of ring finger-fossa of tissue terminal phalanx left." P.W.11 after completing the investigation, filed the final report in court against the accused on 15.6.03 for the offences referred to earlier. 7. When the accused were questioned under Section 313 Cr.P.C. on the basis of the incriminating circumstances appearing against them, they denied each and every circumstance put up against them as false and contrary to facts. On their side, D.W.1, the Assistant Surgeon at the Government Hospital, Vellore, was examined. We extract hereunder his evidence :- "When I was on duty in the Government Hospital, Vellore on 29.5.03, at about 10.15 p.m., a person by name Natarajan, aged about 40 was brought by another person by name Gopal (we indicate that they are the deceased and P.W.1); they stated that they were attacked; I could not get any further details either from the person, who brought the injured or from the injured persons themselves; the person who accompanied the injured was under the influence of alcohol; the condition of injured Natarajan was precarious and he was unconscious; there were vomit materials on his person; I noticed a cut injury on his left knee just behind the thigh measuring 4" x 1"; the muscle and the veins were found cut; his pulse and blood pressure could not be read; glucose was administered through intravenous and injections were also given to him and admitted in the intensive care unit; the medical sheet had been recovered by the police; I have brought the accident register with me; Ex.D-1 is the true copy of the same; on the same day, Gopal also had taken treatment and it is he who brought Natarajan; Gopal also said that he had also received injury; Gopal said that he is an ex-serviceman and he had consumed Rum; Gopal was in a position to talk, but his breath was smelling of alcohol; on him I found 1" x 2" reddish contusion on his left forehead and 1" x ½" cut injury on his left hand; he was also admitted as in- patient and Ex.D-2 is the accident register issued by me for him and Gopal (P.W.1) did not tell me by whom and at what time he came to be attacked." Exs.D-1 and D-2 came to be marked through D.W.1 and we extract the contents as hereunder :- EXHIBIT D-1 ACCIDENT REGISTER Sl. No.2999397 Hospital No. -- Date & Time : 29.5.2003 at 10.15 p.m. Name – Nataraj Age – 40 Male Occupation --- Address – Kudisai Village https://hcservices.ecourts.gov.in/hcservices/ Identification Marks : 1) A scar left hand. 2) Wound scar left face. Brought by : S.Gopal (Military person) Whether Police informed or not ? ----- Statement-necessary/not necessary ------ Nature of injury and treatment (State simple, grievous or opinion reserved) Alleged to have been assaulted. (Other details not known. Nearby (another attender under intake of alcohol). Extract G.C.Poor/unconscious/vomiting more present. Unequal of pupils. Severe 4" x 1" depth cut injury back of left knee/injuries/muscles cut. Artery cut. Duistal (N.C.) not felt. EXHIBIT D-2 ACCIDENT REGISTER Sl. No.2999396 Hospital No. -- Date & Time : 29.5.2003 at 10.15 p.m. Name – S.Gopal – S/o Subramani Age – 49 Male Occupation --- Address – Kudisai Village Identification Marks : 1) A Black mole left chest. 2) Wound scar right chest. Brought by : ------ Whether Police informed or not ? ----- Statement-necessary/not necessary ------ Nature of injury and treatment (State simple, grievous or opinion reserved) Military personnel was taken at about 100 ml rum on 29.5.03. Patient conscious/oriented/breath smells of alcohol. 1. 1" x 2" contusion-red left forehead. 2) 1" cut injury red left face. N.C. / talk irrelevantly. 8. Mr.V.Gopinath, learned senior counsel heavily relying upon the evidence of D.W.1 and the contents of Exs.D-1 and D-2 would submit that P.W.1 did not know who had assaulted him and who assaulted Natarajan, since deceased and that is why he did not disclose the details to D.W.1. The evidence of D.W.1 establish beyond doubt that P.W.1 did not give these details. Therefore, it is clear that P.W.1 did not know the assailants for not only the assault on him but also to the fatal assault on Natarajan. Then by taking us through the contents of Exs.P-1 and P-2, it is contended by the learned senior counsel that while in Ex.P-1, P.W.1 had given graphic details as to how all the four accused put up for trial participated in the crime, in Ex.P-2 he had stated that he received the injury at the hands of two known persons present in a midst of six or seven persons. If Ex.P-2 is taken as the statement made by P.W.1 to the doctor, then it means nearly eight or nine persons are involved in the https://hcservices.ecourts.gov.in/hcservices/ crime, whereas in Ex.P-1, the involvement of the four accused alone is mentioned. Therefore, looking from the contents of Exs.P-1 and P-2 also, it is argued by the learned senior counsel that P.W.1 is not a reliable witness since he is not consistent in his version. Mere lodging of the complaint forthright would not by itself add credibility to the prosecution case if there are other suspicious circumstances. 9. In meeting these points, Mr.N.R.Elango, learned Addl. Public Prosecutor would contend that from the evidence of D.W.1 and the contents of Exs.D-1 and D-2 it cannot be said that P.W.1 had given a statement, which partakes the character of "admission" and P.W.1 being the maker of the same is bound by it. From a reading of the evidence of D.W.1 and Exs.D-1 and D-2 it cannot be said in any certain manner that P.W.1 did not know the assailants. But on the other hand, they only show that P.W.1 was keeping silent. The complaint, Ex.P-1 was recorded at the hospital just after midnight on 29.5.03; it was registered at the police station within 1-1/2 hours thereafter and the complaint itself had reached the court at 4.00 a.m. and in the complaint the involvement of all the four accused is found clearly mentioned. Therefore, if this is taken into account, then any shortcomings in the prosecution case as could be spelt out from the evidence of D.W.1, the contents of Exs.D-1 and D-2 and the contents of Ex.P-2 would not affect the prosecution case. 10. Having regard to the submission made by the learned senior counsel for the appellants and the learned Addl. Public Prosecutor for the State, we scanned the materials with utmost care and caution. The sheet anchor of the argument of the learned senior counsel for the appellant is that Ex.P-1 is a concocted version and for this purpose he relies very heavily upon the evidence of D.W.1 and the contents of Exs.D-1, D-2 and P- 2. We have already noted what the arguments of the learned Addl. Public Prosecutor on the above points. In the case on hand, we find from the evidence of D.W.1 when he was cross-examined by the State that whenever a person comes for treatment for injury sustained by him, it is normally asked as to the time and how and in what manner the injuries were caused. D.W.1 is an Assistant Surgeon at Government Hospital, Vellore. Therefore, in this case, we have the substantive evidence of D.W.1, who states that it is the normal practice to ask for the details referred to above when an injured comes before the doctor for treatment. In this context, we may usefully refer to a judgment of the Supreme Court in Mohanlal Gangaram Gehani – Vs – State of Maharashtra reported in AIR 1982 SC 839. In this judgment, the Supreme Court, on going through the register called as the accident register, held as hereunder :- "We have examined the original document ourselves and we find that the entire part of the register where the statement has been recorded by P.W.11 is described as Registrar's note which comprehends everything including the nature of injuries of the injured, any statement made by him or similar other matters. We are, therefore, unable to agree with the High Court that there was no particular column under which the name of the assailant could be mentioned." https://hcservices.ecourts.gov.in/hcservices/ P.W.11 is the doctor in that case before whom the injured was first taken. Ex.P-22 is the injury register. There is a correction of name from 'Tiny' to 'Tony'. The Supreme Court went on to hold that the name of the assailant noted in Ex.P-22 is the statement made by the injured and it could be used as an admission against him. The Supreme Court went on to hold that P.W.11, the doctor, who examined the injured, is totally a disinterested person and, therefore, the evidence of the doctor deserves acceptance. 11. In the context of the judgment of the Supreme Court referred to above, let us examine the argument advanced by the learned senior counsel for the appellants on the genuineness of Ex.P-1. In fact, D.W.1 in his evidence in chief had stated that from the persons who brought the injured Natarajan (the person is also injured) and from the injured person also, D.W.1 could not get the necessary details as to how the injuries have come to be inflicted. In fact, D.W.1 has stated in his evidence that except stating that they have been assaulted, no other detail was forthcoming. At the end of his evidence in chief, D.W.1 has very categorical and firm that P.W.1 did not tell him at what point and at whose hands he came to be attacked. D.W.1 was in possession of the accident register book when he gave evidence in court and he had proved Exs.D-1 and D-2 as the accident register copies issued by him. D.W.1 was cross-examined by the State and he answered as hereunder :- "Whenever a person comes for treatment it is always asked as to how; at whose hands and at what time the injuries have come to be received; in the case on hand, I asked for the above details and since the details were not forthcoming, they are not written in Exs.D-1 and D-2." The accident register produced before court appears to be in a regular form. Therefore, going by the judgment of the Supreme Court in AIR 1982 SC 839, and the evidence of D.W.1, we are not inclined to eliminate the impact of the entries in Exs.D-1 and D-2 in the prosecution case. In other words, D.W.1 had been examined only to prove the contents of Exs.D-1 and D-2 and he had been cross-examined. The evidence of D.W.1 is substantive in nature and his evidence shows that he did not fill up the contents of Exs.D-1 and D-2 after examining the person, who came before him for treatment. If we have the evidence of D.W.1 and the contents of Exs.D-1 and D-2 in our mind, then it is not possible to brush aside the argument advanced by the learned senior counsel for the appellants that in this case, P.W.1 did not only know the assailants on his person, but also the assailants on Natarajan, since deceased, and, therefore, he could not give the necessary details. Learned Addl. Public Prosecutor, by taking us through Ex.D-2, where it is noted that P.W.1 was talking irrelevantly, would submit that P.W.1 may have been in an inebriated condition and therefore the omission to give the details as referred to above by P.W.1 would not affect the prosecution case, gets diluted forthwith from the oral evidence of P.W.1 himself. When P.W.1 was cross-examined in the above context, he had answered as hereunder :- https://hcservices.ecourts.gov.in/hcservices/ "I did not admit my younger brother in the hospital; however, those who accompanied him admitted him; I identified my younger brother to the doctor; as I was asked as to how my younger brother got the injury, I answered that he was cut; the doctor asked me who caused the cut injuries and at what time and in which place; I deny that I told the doctor that I did not know those details; first my younger brother was given treatment and then I was treated; I was treated one hour after my brother was treated; I told the doctor that I