IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 17.03.2008 CORAM : THE HONOURABLE MR.JUSTICE P.D.DINAKARAN AND THE HONOURABLE MR.JUSTICE R.REGUPATHI Criminal Appeal No.739 of 2007 Mohan @ Mohan Reddy .. Appellant/Accused -vs- The State by the Inspector of Police, R.K.Pet Police Station, Tiruttani Taluk, Tiruvallur Dist. (Cr. No.29 of 2001). .. Respondent/Complainant Appeal against the judgment of the learned Additional District Judge, Fast Track Court No.V, Tiruvallur made in S.C.No.119 of 2004 dated 4.11.2004. For Appellant : Mr.P.Krishnan For Respondent : Mr.N.R.Elango Addl. Public Prosecutor. J U D G M E N T (Delivered by P.D.DINAKARAN, J.) The sole accused in Sessions Case No.117 of 2001 on the file of Additional District Judge, Fast Track Court No.V, Tiruvallur, challenges his conviction and sentence in this appeal. 2. The appellant was charged, convicted and sentenced in the said case as given below:- https://hcservices.ecourts.gov.in/hcservices/ Charge Conviction Sentence Offence under Section 449 IPC, for having trespassed into the house of P.W.2 in order to commit murder Found guilty 3 years R.I. with fine of Rs.1,000/-, in default to undergo 3 months S.I. Offence under Section 302 IPC (2 counts), for having murdered Ponniammal, wife of the accused and Kondiah, husband of P.W.2 by stabbing on various parts of their body Found guilty Life imprisonment with fine of Rs.1,000/-, in default to undergo 3 months S.I., under two counts Offence under Section 307 IPC for having attempted to cause the death of Rajammal, P.W.2 Found guilty 7 years R.I. with fine of Rs.1,000/- in default to undergo 3 months S.I. 3. For the sake of convenience, the deceased Ponniammal will be referred to as D-1 and the deceased Kondiah will be referred as D-2 and the appellant will be referred to as the accused. 4. The case of the prosecution was built up on the basis of the statement lodged by P.W.2 to P.W.1, the Village Administrative Officer, on 17.1.2001 at about 3.30 a.m., which was marked as Ex.P.1 in the case. Based on the complaint (Ex.P.1), a First Information Report (Ex.P8) was registered by the Sub Inspector of Police (P.W.17) at about 5.00 a.m. on 17.1.2001. 5.1. The case of the prosecution as could be discerned from the evidence, both oral and documentary, is stated thus: The deceased Ponniammal (D-1) is the wife of the accused. The deceased Kondiah (D-2) and P.W.2 are the husband and wife and D-1 Ponniammal is the brother's daughter of D-2. P.W.3 is the grand son of D-2 and P.W.2. P.Ws.4 to 10 are also closely related to the deceased. All were residents of U.R.R. Kandigai/K.J.Kandigai, Pallippattu Taluk. About twelve years prior to the occurrence, D-1 fell in love with the accused who was at Tiruppathi and married him and gave birth to two sons. 5.2. On 12.1.2001, D-1 came from Tiruppathi to her parental house and as it was found locked, she went to the house of P.W.2 and stayed there. On 15.1.2001, D-1 went to K.J.Kandigai to the house of P.Ws.9 and 10 and returned with her second child and when P.W.2 questioned her about her coming with the child, D-1 told that her husband left the child in the residence of P.Ws.9 and 10 and went back to Tiruppathi. P.W.2 asked D-1 why the accused did not accompany her, for which she replied that since she had come back to her parental home after quarrelling with him at Tirupathi due to his suspicion about her https://hcservices.ecourts.gov.in/hcservices/ fidelity, he came to K.J.Kandigai to take back her to Tirupathi, for which she refused and hence, he left the child and went back to Tirupathi. 5.3. While so, on the night of 16.1.2001, while P.W.2 took her bed in the room at the eastern side along with P.W.3, her grand son, who was suffering from chicken pox, D-1 took her bed in the hall and D-2 took his bed in another room at the western side. At about 11.45 p.m., on being waken up by P.W.3, her grand son, P.W.2 heard the distressing cries of D-1 from the hall and as soon as she went there, she saw the accused sitting on the body of D-1 and stabbing her indiscriminately with a soori knife. When she intervened and requested the accused not to cut D-1, the accused turned to her and stabbed her on right thigh, due to which P.W.2 raised alarm and fell down unconsious. On hearing the cries of P.W.2, D-2 came out from his room only to receive a stab injury on his neck from the accused. Thereafter, the accused went away from the spot taking his son along with him. The occurrence was also witnessed by P.W.3, grand son. P.W.2, after regaining herself, went to the house of P.Ws.4 and 5 and informed them about the incident and P.W.4, in turn, informed the same to other villagers and thereafter, to P.W.14. On receipt of the information from P.W.4 and others at about 2.00 a.m., P.W.14 came to the scene of occurrence and after seeing the dead bodies of D-1 and D-2 as well as the injuries found on P.W.2, he sent a message to P.W.1, the Village Administrative Officer, who on receipt of the message, came to the house of P.W.2 and recorded her statement, which is marked as Ex.P.1 in the case and obtained her left thumb impression in the statement. He prepared a complaint, Ex.P.2 and thereafter, went to R.K.Pet police station along with P.W.2 and handed over Exs.P.1 and P.2 to P.W.17, Sub-Inspector of Police at about 5.00 a.m.. 5.4. P.W.17, on the basis of Exs.P.1 and P.2, registered a case in Crime No.29 of 2001 for offences under Sections 302, 324, 307 IPC and prepared Ex.P.8, printed F.I.R. He sent the original printed F.I.R., Ex.P.8 along with Ex.P.2, complaint, to court and copies to superior officers. P.W.2 was sent to hospital along with a memo. 5.5. P.W.2, appeared before P.W.9, Assistant Civil Surgeon, Tiruttani Government Hospital, at about 12.00 noon on 17.1.2001 and when questioned by the doctor as to the cause of injuries, P.W.2 informed him that the assault was by one known person at 12.30 a.m. on the night of 16/17.1.2001. The doctor examined her and noticed the following injuries:- 1. Laceration 2 inches over the medial aspect of right thigh. 2. Contusion over the left parietal region. P.W.9 issued Ex.P.9, accident register copy and opined that the injuries are simple in nature. https://hcservices.ecourts.gov.in/hcservices/ 5.6. P.W.20, Inspector of Police, on receipt of a copy of the printed F.I.R., proceeded to the scene of occurrence. He observed the spot and prepared Ex.P.3, observation mahazar and rough sketch, Ex.P.14. He conducted inquest over the dead body of D-1 between 6.30 a.m. and 7.30 a.m. and examined witnesses and recorded their statements. Thereafter, inquest over the dead body of D-2 was conducted between 7.30 a.m. and 8.30 a.m., during which witnesses were examined and their statements were recorded. The inquest reports are Exs.P.15 and P.16 respectively. He caused the scene of occurrence to be photographed by photographer, P.W.13 and thereafter, sent the dead bodies to the hospital through P.W.15, police constable, with a requisition to conduct post-mortem. 5.7. P.W.16, Assistant Surgeon attached to Government Hospital, Tiruttani, on receipt of the dead bodies and the requisition to conduct autopsy at about 5.00 p.m. on 17.1.2001, commenced the post-mortem on the dead body of Ponniammal (D-1) at about 2.30 p.m. on 18.1.2001 and found the following external injuries:- 1. Stab injury over her right side nose around 3 ½ x 2 x 4 cm. Size. 2. Stab injury over her right side neck around 3 x 2 x 4r cm. in size. 3. Stab wound over right shoulder anterior aspect around 6 x 3 x 8 cm. Size. 4. Stab wound over back of right shoulder around 8 x 3 x 3 cm. In size. 5. Stab wound over right axilla around 3 x 3 x 4 cm. In size. 6. Stab wound over her right side lateral chest wall at the level of 10th and 11th rib around 3 x 3 x 9 cm. In size directed downwards and medially. 7. Stab wound over the midline neck around 3 x 2 x 4 cm. In size. 8. Stab wound over her left shoulder around 4 x 3 x 5 cm. In size. 9. Stab wound over her left elbow around 3 x 2 x 3 in size. 10. Stab wound over her left hand around 3 x 1 x 1/2 in size. 11. Abrasion over her left forearm 2 x 1 cm. In size. 12. Stab wound right arm 6 x 3 x 8 cm. In size. 13. Four stab wounds over her anterior thigh measures about 3 x 2 x 5 cm. Each. 14. A stab wound around her right back of thigh around 3 x 2 x 2 cm. In size. The doctor issued Ex.P.6, post-mortem certificate with his opinion that D-1 died on account of multiple stab injuries with injury to vital organs and of haemorrhagic shock. Thereafter, the doctor commenced the post-mortem on the dead body of Kondiah (D-2) at about 3.00 p.m. and found the following external injuries:- 1. A stab wound over his right axilla directed towards above https://hcservices.ecourts.gov.in/hcservices/ and medially measuring around 9 x 2 x 3 cm. In size. 2. A stab wound over his midline neck just above medial end of left clavicle around 3 x 2 x 5 cm. In size. 3. A stab wound over his back of left forearm around 5 x 2 x 3 cm. In size. 4. Abrasion over his left elbow 3 x 2 cm. In size. 5. Abrasion over his right knee 3 x 2 cm. In size. 6. A stab wound over his right leg upper 1/3rd around 4 x 3 x 3 cm. In size. The doctor issued Ex.P.7, post-mortem certificate opining that D-2 died of stab injuries to major vessels with haemorrhagic shock. 5.8. In the meantime, at about 3.00 p.m., P.W.20, continuing with his investigation, went in search of the accused along with witnesses, P.Ws.11 and 12 and on being pointed out by the witnesses, arrested the accused at the bus stop near Peerkuppam and questioned him in the presence of witnesses. The accused gave a voluntary confession statement admitting the offence, which was recorded. The admissible portion of the said statement is Ex.P.4, pursuant to which, M.O.1, soori knife with iron handle, was recovered at about 5.00 p.m., on being produced by the accused from the bushes behind the house of P.W.10. The accused was sent to Court for judicial remand. Thereafter, P.W.20 obtained the material objects, M.Os.2 to 6 produced by the constable who was present at the time of post-mortem under Form 95 and sent the same along with M.O.1, soori knife, to Court for forwarding the same to laboratory for chemical analysis with Ex.P.10, letter and the Court, in turn, sent the same to the laboratory with a covering letter Ex.P.11. Thereafter, he examined P.W.19, the Court Clerk, and P.W.18, the doctor, who examined P.W.2 and recorded their statements. As P.W.20 was transferred, P.W.21 took up the investigation and verified the investigation conducted by his predecessor and after completing the investigation, laid the final report before the Court against the accused for offences under Sections 302, 324, 307 IPC. 5.9. The case was committed to Court of Sessions and charges were framed and since the accused denied his complicity in the offence, the case was taken up for trial. In order to substantiate the charges levelled against the appellant/accused, the prosecution produced 21 witnesses and relied on 16 exhibits and marked 7 material objects, as referred to above. On completion of the evidence, the accused was questioned under Section 313 Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses and the accused denied them as false. Neither any witness was examined nor any documentary evidence was produced on his side. 6. After hearing both sides and on scrutiny of the entire materials available, the trial Court found the appellant/accused guilty as per the charges levelled and awarded the punishments referred to above. Aggrieved, the appellant/accused has brought forth this appeal. https://hcservices.ecourts.gov.in/hcservices/ 7.1. The main arguments advanced by the learned counsel for the appellant/accused are that: (i) P.Ws.2 and 3, the two eye witnesses, are closely related to the deceased and hence, they are interested witnesses; (ii)P.W.2 could not have witnessed the offence committed by the accused on D-2 since after she received the stab injury, she became unconscious; (iii)Since P.W.2 has stated that she became unconscious for half-an-hour after receiving the stab injury, the evidence of other witnesses that immediately after the occurrence P.W.2 came and informed them cannot be believed; and (iv)there is a contradiction between the evidence of witnesses with regard to the time of arrest of the accused. 7.2. Per contra, Mr.N.R.Elango, learned Additional Public Prosecutor strongly opposing the above submissions, contended that, (i) even though P.Ws.2 and 3 are close relatives of the deceased, they are natural witnesses since D-1 was staying in the house of P.W.2 on the day of occurrence and more so, when D-2 is the husband of P.W.2 and she also suffered injuries in the course of same transaction and hence, their evidence as to the occurrence cannot be discarded; (ii) even assuming that after receiving the stab injury, P.W.2 became unconscious, it is the clear evidence of P.W.3, that he saw the accused stabbing his aunt (D-1), grand mother (P.W.2) and thereafter, his grand father (D-2). Though P.W.3 was a minor at the time of occurrence, the trial Court after scrutinising carefully upon his capability to give evidence, in Court, has rightly accepted his evidence that he saw the occurrence; (iii) apart from the eye witnesses, the case is further strengthened by the evidence of the other witnesses, who speak about the motive part of the occurrence and the quarrel between the accused and D-1 prior to the date of occurrence. The medical evidence is also corroborated with the evidence of P.Ws.2 and 3; (iv) when there is a direct evidence of P.Ws.2 and 3 regarding the occurrence, the contradiction with regard to the time of arrest lacks significane, since the evidence of the investigating officer on this aspect cannot be disbelieved, more so, when he was not at all cross-examined on this point; and (v) hence, the prosecution has proved its case beyond all reasonable doubts and the conviction and sentence imposed on the appellant are to be confirmed. 8. We have given our anxious consideration to the submissions of both sides and perused the entire materials placed before us. https://hcservices.ecourts.gov.in/hcservices/ 9. The point for consideration is as to whether the prosecution has established its case beyond all reasonable doubts. 10. Before we proceed to consider the issue in question, let us first analyse whether the death of the two deceased persons was due to homicidal violence. The doctor, P.W.16, was examined on this aspect and he has stated in his evidence that D-1 died due to the multiple stab injuries and due to the injury to vital organs as well as haemorragic shock and that D-2 died due to the stab injuries to major vessels with haemorrhagic shock. He has issued Exs.P.6 and P.7, post-mortem certificates, describing the injuries found on the dead body. He has further stated that the injuries on D-1 and D-2 would have been caused with a sharp-edged weapon. Hence, we do not have any difficulty in holding that the death of the two deceased persons was due to homicidal violence. 11.1. It is the case of the prosecution that the occurrence was witnessed by P.Ws.2 and 3, of whom, P.W.2 is an injured witness. P.W.2 in her evidence stated that on the date of occurrence, D-1 came to her house along with her second son, after quarrelling with the accused and when questioned about the accused, she has replied that since she refused to go along with the accused to Tirupathi, the accused alone went back to Tirupathi leaving his son and on that night, at about 11.45 p.m., on being waken up by her grand son, P.W.3, who was lying beside her as he was suffering from chicken pox, she heard the distressing cries of D-1 and when she came out of the room, she saw the accused stabbing D-1 indiscriminately with a knife and that when she intervened, the accused also inflicted a stab injury on her right thigh. She has further stated that the accused also inflicted a stab injury on her husband, D-2 when he came out of the room on hearing her distressing cries. 11.2. P.W.3, grand son of P.W.2, in his evidence, stated that he saw the accused stabbing his aunt (D-1), his grand mother (P.W.2) and his grand father (D-2). True, it is, that P.W.3 was a minor at the time of occurrence and that he was suffering from chicken pox at that time. But, this cannot preclude the Court from drawing an inference that he witnessed the occurrence. It is obvious that when a person suffering from chicken pox, during night hours, he would have been awakended due to itchiness on all over his body. That apart, while he was in witness box, he was questioned as to his capability to give evidence in Court and after being satisfied that he is capable to give evidence, his evidence was recorded. In his evidence, he has stated that he was beside his grand mother; that his grand father (D-2) was sleeping in another room and his aunt (D-1) was sleeping in the hall and that at about 11.45 p.m., he heard the cries of his aunt (D-1) and he came out of the room and saw the accused sitting on D-1 and stabbing her. He has stated that he waked up his grand mother and that the accused stabbed her also with the knife. He has further stated that as his grand father was having calloused sole on his feet, before he came out of the room https://hcservices.ecourts.gov.in/hcservices/ after wearing slippers, the accused stabbed him also and thereafter, he hid himself in a room and the accused went away taking his second son. 11.3. It is the further evidence of both P.Ws.2 and 3 that thereafter P.W.2 went to P.W.4's house and informed him, who, in turn, brought P.W.14 and other villagers to the scene of occurrence. P.W.14 after reaching the scene of occurrence sent a message to P.W.1, who, on enquiry with P.W.2, reduced her statement into writing, on the basis of which, P.W.18, Sub-Inspector of Police, registered a case and investigation was taken up thereafter. 12.1. The main contention that P.Ws.2 and 3 are partisan witnesses, since they are close relatives of the deceased and hence, their evidence cannot be believed. The law on the point is well settled. Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. 12.2. In Dalip Singh v. State of Punjab, (AIR 1953 SC 364), the Apex Court laid down as hereunder:- "26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to which to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts." 12.3. Again in Masalti v. State of U.P., AIR 1965 SC 202, the Apex Court observed that: "But it would, we think, be unreaonsable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. .... The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct." https://hcservices.ecourts.gov.in/hcservices/ 12.4. Further, in Pulicheria Nagaraju v. State of A.P. (2006) 11 SCC 444, it has been observed: ".. that evidence of a witness cannot be discarded merely on the ground that he is either partisan or interested or closely related to the deceased, if it is otherwise found to be trustworthy and credible. It only requires scrutiny with more care and caution, so that neither the guilty escape nor the innocent wrongly convicted. If on such careful scrutiny, the evidence is found to be reliable and probable, it can be acted upon. If it is found to be improbable or suspicious, it ought to be rejected. Where the witness has a motive to falsely implicate the accused, his testimony should have corroboration in regard to material particulars before it is accepted." 12.5. In the case on hand, no doubt, P.Ws.2 and 3 are closely related to the deceased. However, whenever a false implication is taken as defence, the Court should be obliged to adopt a careful approach and analyse their evidence to find out whether their evidence are cogent and credible. On going through the evidence of of P.W.2, who is nonetheless the wife of D-2, we find that she also sustained injuries during the course of same transaction and therefore, she would only be interested in seeing that the real assailant is brought into book and would not implicate the accused falsely. The evidence of P.Ws.2 and 3 about the occurrence is also fortified by the evidence of P.Ws.4 to 6 and 14, residents of the same village as well as P.W.1, the Village Administrative Officer, to whom P.W.2 gave a statement, Ex.P.1, resulting in the registration of the case. The evidence of P.W.2 as to the overt act attributed to the accused is also corroborated with the injuries found noted by the doctor, P.W.16, who conducted post-mortem on the dead bodies and the doctor, P.W.18, who examined P.W.2. Though P.Ws.2 and 3 were cross-examined in detail, nothing concrete was elicited in favour of the accused for this Court to discard their evidence. Their evidence are cogent, natural and trustworthy and hence, we find no reason to reject their evidence. 13.1. Apart from the above evidence of the eye witnesses, P.Ws.2 and 3, as regards the occurrence, the motive for the accused to attack the deceased has also been brought forth by the prosecution through other witnesses. As already stated earlier, D-1 told P.W.2 that the accused was suspecting her fidelity, due to which there were quarrels between them and hence, she came back to stay with her parents. That apart, P.W.7, a resident of the same village and also related to the deceased and P.W.2, has stated in his evidence that three days prior to the date of occurrence, the accused came to his house in search of his wife, D-1 and as she was not there, he took the accused to his in-laws house at K.J.Kandigai, where they were informed that D-1 had gone to cinema and thus, they went to theatre and brought