B A I L S L I P The Appellant/Accused-1, viz., Ganesan age 52 years S/o.Sadasivam, and Accused-7, Viz., Duraiarasan, age 32 years, S/o.Mani were directed to be released on bail as per the order of this Court dated 2.2.2005 in Crl.MP.No.12520 & 12523/04 in Crl.RC.No.2054 and 2055 of 2004. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 23.7.2009 CORAM THE HON'BLE MR.JUSTICE M.JEYAPAUL Crl.R.C.Nos.2054 and 2055 of 2004 Ganesan ..Petitioner in Crl.R.C.No.2054/2004 First Accused Duraiarasan ..Petitioner in Crl.R.C.No.2055/2004 7th Accused vs. State by Inspector of Police, Nagore Police Station, Nagapattinam District. Cr.No.328 of 2002 ..Respondent in both the petitions Complainant in do. Criminal Revision Cases are filed under sections 397 and 401 Cr.P.C to set aside the order of conviction passed by the Additional/Assistant Sessions Judge, Nagapattinam in S.C.No.124 of 2003 dated 12.4.2004 and partly modified by the Principal District and Sessions Judge, Nagapattinam in C.A.No.51 of 2004 dated 3.11.2004. For petitioners: Dr.A.E.Chelliah, Senior Counsel for Mr.P.Kalidas For respondent : Mr.N.Kumanan, Govt. Advocate (Crl. Side) https://hcservices.ecourts.gov.in/hcservices/ COMMON ORDER The petitioner in Crl.R.C.No.2054 of 2005 is ranked as A1 and the petitioner in Crl.R.C.No.2055 of 2004 is ranked as A7. The Trial Court convicted the first accused for offences under sections 148, 341, 307 of the Indian Penal Code and sentenced him to undergo two years simple imprisonment, one year simple imprisonment and three years rigorous imprisonment respectively. The Trial Court convicted the 7t accused for offences under sections 147, 341 and 323 of the Indian Penal Code and sentenced him to undergo one year simple imprisonment each and also convicted him under section 307 read with section 149 of the Indian Penal Code and sentenced him to undergo two years rigorous imprisonment. The appellate court modified the conviction recorded and sentence imposed and convicted the first accused for offence under section 307 of the Indian Penal Code and sentenced him to undergo three years rigorous imprisonment and also convicted him for offence under section 324 of the Indian Penal Code and sentenced him to undergo one year rigorous imprisonment and convicted the 7th accused for offence under section 323 of the Indian Penal Code alone and sentenced him to undergo three months simple imprisonment. 2. On the side of the prosecution, 18 witnesses were examined, nine documents were marked and four material objects were marked. Neither oral nor documentary evidence was let in on the side of the defence. 3. The case of the prosecution is that coconut trees belonging to Panchayat Board were auctioned and Radhakrishnan, PW13 was declared as the highest bidder. As PW13 attempted to pluck coconut from the trees he had taken on auction, the first accused objected to it. When the matter was reported to the Panchayat President Subramanian, PW9, he convened the panchayat. Saravanan, PW3 and Subramanian, PW4 were sent to bring the first accused to the panchayat. Thereafter, Panneerselvam, PW1 and Murugesan, PW2 were sent to the house of the first accused to bring him to the panchayat. It is the further case of the prosecution that the first accused attacked PW4 with billhook on his head with an intention to cause his death. He also attacked Saravanan, PW3 with billhook and attempted to cause his death. The 7t accused, on his part, launched attack on PW1 Panneerselvam and caused simple injury. 4. PW1 lodged the complaint, Ex.P1 with the Sub Inspector of Police Balakrishnan, PW14, who registered a case in crime No.328 of 2002 under sections 147, 148, 341, 323, 324 and 307 of the Indian Penal Code and prepared printed FIR, Ex.P4 and despatched the same to the Judicial Magistrate concerned. He also submitted a copy thereof to the Inspector of Police. Chandrasekaran, the Inspector of Police, PW18, who took up the case for investigation, rushed to the https://hcservices.ecourts.gov.in/hcservices/ scene of occurrence, prepared observation mahazar, recovered material objects found over there and also sent the injured to the hospital for treatment. PW18, having completed the investigation, filed final report before the learned Judicial Magistrate. 5. Though the Trial Court was pleased to convict the first accused for offences under sections 148, 341 and 307 of the Indian Penal Code and the 7th accused for offences under sections 147, 341, 323 and 307 read with section 149 of the Indian Penal Code, the appellate court chose to modify the conviction and convicted the first accused for offence under sections 307 and 324 of the Indian Penal Code and sentenced him to undergo three years and one year rigorous imprisonment respectively and convicted the 7th accused for offence under section 323 of the Indian Penal Code alone and sentenced him to undergo three months simple imprisonment. 6. Learned Senior Counsel appearing for the petitioners would vehemently submit that PW14 had allegedly gone to the scene of occurrence at 3.45 am and inspected the scene of occurrence and examined the witnesses over there. But, the investigating officer, PW18 would depose that he proceeded to the scene of occurrence at 6.30 am and having prepared the rough sketch, recovered billhook, stick and stone from the scene of occurrence. It is his submission that if those material objects were lying over the place of occurrence, PW14 would have definitely recovered those material objects. PW1, 3 and 4 have stated before the Doctor who treated them that about ten persons came with stick and aruval and attacked them. But, in fact, eight persons alone were implicated in this case. Copy of the accident register would disclose that one Manoharan brought PW3 and 4 to the hospital for treatment. PW5 on his part would say that it was he who took PW3 and 4 to the hospital for treatment. PW6 would depose that there was no person in the name of Manoharan in his village. He would also submit that Ex.P5 and P7 copy of the accident register do not disclose the fact that P.Ws.1, 3 and 4 were brought for treatment on the basis of the medical memo issued by PW18. PW18 has categorically deposed that PW1 accompanied him. But, PW1, during the course of examination before the Trial Court, has come out with a version that he did not know when actually the Inspector of Police, PW18 arrived at the scene of occurrence. PW1 could not come out with the name of the person who actually drafted the first information report. PW10 and PW11 are found to be relatives of PW8. There is also a delay of five hours in despatching the first information report. Such an inordinate delay was not explained by the prosecution, he would submit. The testimony of the injured witnesses cannot be taken as a gospel truth. In view of the above material contradictions, he submits that the first and seventh accused also are entitled to acquittal. 7. Per contra, the learned Government Advocate (Criminal Side) appearing for the State would submit that the injured witnesses https://hcservices.ecourts.gov.in/hcservices/ P.Ws.1, 3 and 4 have categorically spoken to the attack launched by A1 and A7. The copy of the accident register and X-ray report issued by the Doctors, PW15 and PW17 would corroborate the injured witnesses. It is his further submission that in villages, almost all the persons would be related in one way or the other. Therefore, he submits that there is no warrant for interference with the verdict of the appellate court. 8. PW4 has categorically spoken to the murderous attack launched by A1 on his head with billhook, M.O.2. The injury sustained by him was corroborated by the medical evidence in the form of extract of the accident register, Ex.P5. PW15 has spoken to the grievous injury found on the left side of the head of PW4. PW3 has deposed that he was attacked by A1 with billhook, M.O.2. Dr.Karthikeyan, PW15, who issued copy of the accident register, Ex.P6, has spoken to the fact that PW3 sustained simple injury on the backside of his head. 9. PW1, who also sustained injury has also deposed before the court that A7 attacked him with stick and stone and caused simple injury. Dr.Rajakumarasamy, PW16, who issued the copy of the accident register, Ex.P7, has spoken about the simple injury sustained by PW1 on his leg. P.Ws.1, 3 and 4 have corroborated each other the attack launched by A1 and A7 respectively on them. The medical evidence referred to above also supports the injured ocular witnesses in this case. 10. It is true that PW14 has come out with a version that he descended on the scene of occurrence at 3.45 am itself. In fact, he had inspected the scene of occurrence, but, he had not recovered any material object. It is not his case that no material object was found over there. The court cannot forget the fact that the occurrence took place during night. Further, PW14 might have been under the impression that the seizure of the material objects is the duty of the investigating agency. Therefore, the non-seizure of the material objects, in the above facts and circumstances, by PW14, who was not the investigating officer in this case, does not go to the root of the matter. PW18 would state that he was accompanied by PW1. PW1, on his part would depose that he did not accompany PW18 and was not aware as to when PW18 arrived at the scene of occurrence. This is only a petty contradiction which cannot be given much credence when there is injured ocular witnesses to speak to the occurrence. 11. The copy of the accident register would disclose that PW3 and PW4 informed the Doctor that ten persons with stick and aruval caused injuries. Firstly, the occurrence had taken place during night time. More than half a dozen persons have participated in the occurrence It is quite natural for a witness who received murderous attack to come out with an average estimate of the persons who launched attack at the scene of occurrence. Therefore, there is nothing wrong in PW3 https://hcservices.ecourts.gov.in/hcservices/ and PW4's informing the Doctor who treated them that about ten persons participated in the occurrence. Even otherwise, such a mistake committed by PW3 and PW4 with respect to number of persons participated in the occurrence is found to be quite natural. 12. PW3 and PW4 have, of course, informed the Doctor that one Manoharan brought them for treatment. PW6 has stated that there was no such person in the name of Manoharan in the village. PW18 would state that he issued medical memo to PW3 and PW4 for taking treatment in the hospital. The point for determination is whether the accused launched murderous attack and caused injury. The aforesaid minor discrepancy does not tilt the case of the prosecution in favour of the accused. In fact, PW5 says that it is he who took PW3 and PW4 to hospital for treatment. Probably his name might have been wrongly written as Manoharan in the accident register as there is no person in the name of Manoharan in the occurrence village. The fact is that the occurrence had taken place during night and the injured had rushed to the hospital. The delay of about five hours in despatching the first information report does not create a dent in the case of the prosecution. It is true that PW1 was not in a position to identify the person who actually drafted the first information report. The question is who actually is the author of the first information report. Therefore, it is immaterial as to who drafted it at the instance of PW1. 13. As rightly pointed out by the learned Government Advocate (Criminal Side), majority of the persons in the village would be related to each other. No wonder PW10 and PW11 are related to PW8. There is no rule that the evidence of a relative of a witness should be completely disbelieved. 14. It has been laid down in NARAYAN KANU DATAVALE AND OTHERS v STATE OF MAHARASHTRA (1997 CRI.L.J. 1788) by the Bench of the Bombay High Court as follows:- " The short question in this appeal is as to whether the testimony of the three eye-witnesses namely Tukaram, Janardhan and Laxmi who are the brother, son and the mother of the deceased respectively, inspires confidence or not? Our answer to the same is in the negative. While giving the said answer, we are conscious of the fact that Tukaram and Laxmi are injured witnesses according to the prosecution and normally, this Court is loath to reject the testimony of an injured witness. However, there is no immutable https://hcservices.ecourts.gov.in/hcservices/ rule of appreciation of evidence that the evidence of injured witnesses should be mechanically accepted as gospel truth for injuries may only at the best ensure presence of a witness but, are no guarantee of his credibility and truthfulness. It is an elementary norm of appreciation of evidence that before the testimony of even an injured witness can be accepted, it has to pass the test of truthfulness and should be in consonance with probabilities. We are reinformed in our view, by the decision of the Allahabad High Court, reported in 1984 All LJ 1316 (Vijay Shankar Misra v. State) wherein in paragraph 22 their Lordships have observed thus:- "It is no doubt correct that if a witness is injured, then his presence on the spot at the time and place of occurrence is prima facie established but for basing conviction solely on the evidence of an injured witness, is necessary that the injured witness must be held to be a wholly reliable witness. Wherein in a case there is the sole evidence of the injured witness against the accused and if it is shown that there is material infirmity and falsity in some part of his evidence, then it will not be at all safe to convict the accused solely on the evidence of the injured witness relying upon the eye-witness's account given by him without independent corroboration by material evidence." 15. That was a case where the evidence of the injured witnesses did not inspire confidence. The court has cautioned that the injured witnesses cannot be mechanically accepted. The credibility and truthfulness of such a witness will have to be, of course, decided beforeever accepting their evidence. But, the rudimentary principles of law that the court should show reluctance to reject the testimony of the injured witnesses has been reiterated in the aforesaid judgment. In the instant case, the truthfulness and the credibility of P.Ws.1, 3 and 4 which also received corroboration from medical testimony could not be challenged inspite of the rigorous cross- examination. The courts below have rightly placed full reliance upon such injured witnesses in this case. 16. Of course, it is not safe to base conviction on the interested testimony of a witness. The court must search for corroboration from independent sources beforeever accepting the interested testimony of a witness. The injured witnesses cannot be https://hcservices.ecourts.gov.in/hcservices/ termed as partisan interested witnesses. The injured witnesses are, of course, interested in prosecuting the real culprit who caused injury to them and attempted to murder them. The evidence of a witness cannot be simply rejected on the sole premise that he is a close relative of the victim. If the evidence of the close relative of the victim is projected, the court will have to adopt a careful approach while analysing his evidence before accepting the same. In this case, the evidence of PW10 and PW11 who are related to PW8 are not so material inasmuch as the attack launched by A1 and A7 is clearly spoken to by the injured witnesses P.Ws.1, 3, 4 and 6. 17. The learned Senior Counsel appearing for the petitioners cited a decision of this court in THYAGARAJAN v. STATE REP BY INSPECTOR OF POLICE, THANJAVUR RURAL (1995 (2) MWN (Crl.) 37). 18. That was a case where there was a direct conflict between the ocular and medical evidence about the consciousness of the victim and the confession given by him. A lot of material infirmities was found during the course of investigation. Therefore, in that case, this court chose to disbelieve the version of the prosecution and recorded acquittal of the accused in a case of murder. 19. Every infirmity in the process of investigation and the flaw committed by the investigating agency will not shake the foundation of the prosecution. The material infirmities and the substantial flaws which go to the root of the case alone will cut at the root of the prosecution. In this case, as already pointed out by this court, there is no material contradiction in the evidence of the witnesses spoken to about the attack launched by A1 and A7. The lapse on the part of the investigating agency also is not so material to tilt the case of the prosecution in favour of the accused. No conflict is also found in the evidence of ocular and medical witnesses in this case. 20. The court finds that the appellate court has analysed the materials on record in the proper perspective and has recorded conviction of the first accused under section 307 and 324 of the Indian Penal Code and sentenced him to undergo three years rigorous imprisonment and one year rigorous imprisonment respectively and convicted the seventh accused under section 323 of the Indian Penal Code and sentenced him to undergo three months simple imprisonment. No impropriety or illegality is found in the well considered verdict of the appellate court. Therefore, both the revision cases fail and they stand dismissed. Both the petitioners are directed to surrender before the Trial Court within *thirty days from the date of https://hcservices.ecourts.gov.in/hcservices/ receipt of the order failing which the Trial Judge shall issue non bailable warrant as against the petitioners to secure them to undergo the unexpired portion of sentence. ssk. Sd/ Asst.Registrar 27.7.2009 *Amended as per order dated 4.8.2009 and made in Crl.RC.Nos.2054 & 2055/04 Sd/- Asst Registrar 5.8.2009 /true copy/ Sub Asst.Registrar To 1. The District and Sessions Judge, Nagapattinam. 2. The Additional /Assistant Sessions Judge, Nagapattinam. 3. Do Through The Principal District and Sessions Judge, Nagapattinam 4. The District Collector, To be substituted Nagapattinam. to the order already despatched on 27.7.2009 5. The Director General of Police, Mylapore, Chennai 4. 6. The Inspector of Police, Nagore Police Station, Nagapattinam District. 7. The Public Prosecutor, High Court, Madras. + 2 ccs to Mr. P. Kalidass, Advocate SR No.33572, 33573 ORDER IN Crl.R.C.No.2054 and 2055 of 2004 CU(CO)SR/27.7.2009 https://hcservices.ecourts.gov.in/hcservices/