Judgement
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1593 OF 2007
Ponnusamy ..........................Appellant
Versus
The State of Tamil Nadu Rep. by its Inspector of Police ...............Respondent
RANJAN GOGOI, J.
This appeal is directed against the judgment and order dated 27.10.2006
passed by the High Court of Madras whereby the conviction of the
accused-appellant under sections 302, 304 (Part II) and 307 of the Indian Penal
Code and the sentences imposed by the learned Trial Court have been affirmed.
The relevant facts
2. The case of the prosecution, in short, is that one Sekhar (deceased No.2)
was running a Saw Mill, taken on lease, in which business he was assisted by his
brothers Radhakrishnan (deceased No.1) and Rajendran (PW 2). The second accused,
Munuswamy, who used to work in the Saw Mill was taken to task by Sekhar for
unauthorized sale of some timber from the Saw Mill. The said incident happened
on 3.10.2003. According to the prosecution, accused Munuswamy left the place
threatening revenge and on 5.10.2003 he came to the house of Sekhar alongwith
Ponnusamy (accused No.1) Mailraj (accused No.3) and Madavan (accused No.4).
3. On 5.10.2003 at about 10.00 A.M. the deceased Sekhar had come out of the
Saw Mill to go to his house for coffee. His house was just opposite the saw
mill. At that time accused Ponnuswamy assaulted Sekhar with his slippers and
instigated the other accused to assault him. It is the prosecution case that, on
such instigation, accused No. 3 assaulted Sekhar on his head with a stick; the
accused No. 4 assaulted the deceased on his forehead with a brick whereas the
first accused stabbed the deceased with a knife. The prosecution has further
alleged that on seeing Sekhar being assaulted, Radhakrishnan (deceased No.2)
came running whereafter, the second accused caught hold of him and the first
accused Ponnusamy stabbed him on his back with the knife. Similar assault on PW
2 and PW 3, who had also come to the spot, was committed by the first accused
Ponnusamy with the knife. According to the prosecution all the injured persons
were profusely bleeding and the accused had fled away from the place.
Thereafter, the injured persons were brought to the Government Hospital at
Thanjayur. On examination, Radhakrishnan was pronounced dead and Sekhar was
admitted in the hospital with injuries alongwith PWs 2 and 3.
Prosecution had also claimed that at about 3 p.m. of the same day, i.e
05.10.2003 a telephonic information with regard to the incident was conveyed by
the police outpost in the Government Hospital at Thanjayur which was received by
PW 16 at the Needamangalam Police Station. The said information, according to
the prosecution, was entered in the general diary of the police station and
brought to the notice of PW 20, Sivagananavelu, Inspector of Police. Thereafter
PW 20 reached the hospital at about 4-4.30 p.m. and recorded the statement of
Sekhar (Exh.P.37) on the basis of which the FIR (Exh.P.38) was lodged. A
requisition was sent to PW 15 (Judicial Magistrate) to record the statements of
Sekhar and PW 2 Rajendran and PW 3 Nagaraj in the Government Hospital at
Thanjayur. Accordingly, the aforesaid statements were recorded which were
subsequently marked as Exh.P.22 and P.23 (dying declaration of deceased Sekhar),
Exh.24 and Exh. 25 (statement of PW 3 Nagaraja) and Exh.26 and Exh. 27
(Statement of PW 2 Rajendran). The prosecution had also claimed that after
registration of the FIR at about 6.30 p.m., PW 20 commenced his investigation by
visiting the place of occurrence at about 7.45 pm in the course of which he
prepared a sketch;
collected samples of blood stained earth and sample earth and had also
recorded the statements of persons acquainted with the offence under the
provisions of section 161 of Code of Criminal Procedure, 1973 including the
statements of Sekhar (deceased No.1), PW 2 Rajendran and PW 3 Nagaraj.
4. According to the prosecution, on 05.10.2003 itself Sekhar (deceased) , PW
2 and PW 3 were examined by PW 11 Dr. Balasubramanian who was then working as a
Casualty Medical Officer in the Government Hospital at Thanjayur. The injuries
sustained by the aforesaid persons were recorded in the Accident Register
maintained by the Hospital. On the same day Radhakrishnan was also brought
before him but by that time he was already dead. Post-mortem of the deceased
Radhakrishnan was performed by PW 14 Dr.
Vijayalakshmi on the next day, i.e, 06.10.2003. It is also the prosecution
case that in the course of investigation the first accused Ponnusamy has made a
statement on the basis of which certain recoveries were made including the
recovery of a knife which was seized by Seizure List (Exh.P.8 and subsequently
exhibited in the trial as material object No.3).
Thereafter, at the conclusion of the investigation charge sheet was filed
against all the four accused persons under section 302, 304 and 307 of the IPC.
The accused persons were tried in the Court of the Learned Sessions Judge,
Nagapattinam and each one of them was found guilty of the offences alleged.
Aggrieved, the accused persons had filed an appeal before the High Court of
Madras. The High Court by its judgment and order dated 27.10.2006 while
maintaining the conviction of the accused-appellant (first accused before the
learned trial court) and the sentences imposed, has set aside the conviction and
sentence imposed upon the other accused. Aggrieved, the present appeal has been
filed by the first accused, Ponnuswamy (hereinafter referred to as ‘the
accused – appellant’ ).
5. We have heard Shri V. Kanagaraj, learned senior counsel for the appellant
and Shri B. Balaji, learned counsel appearing for the State.
6. The learned counsel appearing for the appellant has argued that though PW
1, who is the wife of the deceased Sekhar, was examined as an eye witness to the
incident she was disbelieved, and rightly, by the High Court. According to the
learned counsel the fact that the deceased Sekhar had not mentioned PW 1 as one
of the persons present at the place of occurrence though he had clearly
mentioned others who were allegedly present would raise a serious doubt with
regard to presence of PW 1 at the place of the crime. In so far as PW 2 and PW 3
are concerned, learned counsel has submitted that though in their depositions
the said witnesses had named the accused –appellant as the person who had
stabbed both the deceased and also PWs 2 and 3, in the statements of the
deceased Sekhar and injured PW 3 Nagaraju recorded by the Judicial Magistrate
(PW 15) i.e. Exhs. 22-23 and 24-25, the description of the accused-appellant is
either by his appearance (short and stout) or by his relationship with the
second accused, Munuswamy and not by his name. The aforesaid lacuna, according
to the learned counsel, would go to show that neither PW 2 nor PW 3 had
identified the accused-appellant to be the person who has caused the stab
injuries. It is submitted that PW 4 and 5 were declared hostile and that PW 6,
once again, had not named the accused-appellant as the person responsible for
the crime but had referred to a short and stout person who had caused the stab
injuries. Learned counsel has, therefore, submitted that none of the eye
witnesses who were examined by the prosecution are worthy of credence. It has
been further contended that Exh.37, i.e. the statement of deceased Sekhar
recorded by PW 20, which is the first version of the occurrence, suffers from a
serious lacuna affecting its credibility.
Learned counsel has pointed out that PW 20 claims to have reached the
Hospital at about 4-4.30 p.m. and to have recorded Exh.P.37 at about 4.30 p.m.
On the other hand, according to PW 15, i.e. the Judicial Magistrate, he had gone
to Ward No. 15 at about 4 p.m. to record the statements of deceased Sekhar and
PW 2 and PW 3. He was informed by the staff that the patients had been taken to
the operation theatre. Thereafter PW 15 proceeded to the operation theatre where
he found PW 2 and PW 3 in the waiting room. Accordingly, the statements of PW 2
and PW 3 were recorded.
However, according to PW 15, as the deceased Sekhar was inside the operation
theatre undergoing surgery his statement could not be recorded for which reason
PW 15 had to come back to the hospital once again at about 9.30 p.m. and it was
at that point of time that the statement of the deceased (Ex. P.22 and 23) was
recorded. Learned counsel has pointed out that the two versions given by the
prosecution witnesses with regard to the availability of the deceased Sekhar for
recording of his statement throws considerable doubt as to whether PW 20 had
actually recorded the statement of the deceased Sekhar at 4.30 p.m.,
particularly, when the said statement (Exh.P.37) was not recorded in the
presence of any other person including the Doctor on duty. In the aforesaid
circumstances, according to learned counsel, Exh.37 is not credit worthy so as
to constitute a sound and safe basis to determine the culpability of the
accused-appellant. Pointing out the statements of PW 2 and PW 3 (Exh. 24 &
25; 26 and 27) learned counsel has pointed out that the said statements do not
implicate the accused- appellant herein, in any manner whatsoever. Even the
dying declaration of the deceased Sekhar (Exh.22 & 23) does not refer to the
accused-appellant by name but describes the culprit as the short and stocky
co-brother of accused Munuswamy (acquitted accused No.2). In these
circumstances, according to learned counsel, the involvement of the
accused-appellant in the crime alleged has not been proved beyond all reasonable
doubt so as to warrant his conviction under Section 302 of the Indian Penal
Code.
7. In reply, Shri Balaji, learned counsel for the respondent, has contended
that even if the evidence of PW 1 is to be discarded, there is no reason why the
evidence tendered by PW 2 and PW 3 should not receive the due consideration of
the Court. Learned counsel has submitted that the evidence tendered by PW 2 and
PW 3 contains a vivid account of the events that had occurred including the role
played by each of the accused in the crime. It is also pointed out that the
identity of the accused, including the accused-appellant, had not been an issue
at any stage of the trial. The omission of the name of the accused-appellant in
the statement of PW 3 recorded by the learned Judicial Magistrate (Ex.26 and 27)
and in the Dying Declaration of deceased Sekhar (Ex. P.22-23) is of no
consequence. At no point of time the defence had asserted that the identity of
the accused- appellant was in doubt. It is further pointed out by the learned
counsel for the State that though PW 4 had been declared hostile, the said
witness had admitted that all the four accused had assembled in front of the Saw
Mill of the deceased Sekhar at the relevant time of the day of the occurrence.
That apart, PW 6 had deposed that the accused-appellant who was was ‘short and
stocky’, was seen by him stabbing PW 2 Rajendran, PW 3 Nagaraju and the
deceased Radhakrishnan. The evidence of PW 6 with regard to the physical
description of the accused-appellant corroborates the description of the accused
as narrated in the dying declaration of deceased Sekhar, it is contended.
8. We have carefully considered the rival contentions advanced on behalf of
the parties. We have also perused the evidence and other materials on record.
The incident occurred at about 10 a.m. on 5.10.2003 in front of the Saw Mill of
the deceased Sekhar. From the evidence on record it is clear that the house of
the deceased was just across the Saw Mill and the incident occurred when the
deceased was going for coffee to his house.
Having regard to the place where the occurrence took place, the presence of
PW 1, who is the wife of the deceased Sekhar was, but, natural. Merely because
her name was not mentioned by the deceased in his statement (Exh.P.37), though
the names of the others who were present were so mentioned, according to us,
cannot be a reasonable basis to conclude that PW 1 is not an eye witness to the
occurrence. We are, therefore, inclined to take into account the evidence of PW
1 which, properly read, gives a graphic account of involvement of the
accused-appellant in the crime in question and corroborates the evidence of PW 2
and PW 3, the other eye witnesses examined by the prosecution. In so far as the
lacunae in the evidence of PW 2 and PW 3, as pointed out on behalf of the
accused is concerned we are of the view that in a situation where the identity
of the accused-appellant was not an issue raised by the defence the evidence of
the said witnesses cannot be discarded merely because in their earlier
statements, PW 2 and PW 3 had not specifically referred to the accused-
appellant by his name. That apart, the part of the evidence of PW 4 which can
acted upon by the Court lends a fair amount of support to the prosecution case,
namely, that the accused-appellant along with the other acquitted accused had
gathered at the place of occurrence at the relevant time of the day of
occurrence. The testimony of PW 6 that he had seen the accused-appellant, who
was short and stocky, stabbing PW 2 Rajendran, PW 3 Nagaraju and the deceased
Radhakrishnan are additional pieces of evidence which gives credence to the
prosecution case.
9. The alleged discrepancy in the prosecution evidence (PW 15 and PW 20) with
regard to the availability of the deceased Sekar for recording of his statement
at 4-4.30 p.m. of the day of occurrence, as pointed out by the learned counsel
for the appellant, in our considered view, does not present any difficulty of
resolution. The evidence on record shows that after the two deceased persons and
PW 2 and PW 3 were brought to the Government hospital an information was sent
from the police out post in the Hospital at Thanjayur to the Needamangalam
police station which was received at about 3 p.m. Thereafter the said
information was entered in the general diary of the police station and placed
before PW 20 who came to the hospital and recorded the statement of deceased
Sekhar at about 4.30 p.m.
On the other hand, PW 15, the Judicial Magistrate, who was already in the
hospital recording the dying declaration of another person, was informed by the
duty medical officer at about 3.30 p.m. to record the dying declaration of
deceased Sekhar and PWs 2 and 3. Thereafter, according to PW 15, he went to the
ward where the injured were admitted but he was told that the patients have been
taken to the operation theatre. He, therefore, went to the operation theatre
where he found PWs 2 and 3 in the waiting room. At that time the deceased Sekhar
was inside the operation theatre undergoing surgery. The Judicial Magistrate
recorded the statements of PWs 2 and 3 and came back later to record the
statement (dying declaration) of deceased Sekhar at about 9.30 p.m. There is
certainly some amount of overlapping in the time mentioned by the two
prosecution witnesses, i.e. PWs 15 and 20.
However, reference to such time must be understood having regard to the
normal course of human life, namely, that such reference is largely by
approximation and not strictly by the hour of the clock. So viewed we do not
find any inconsistency in the above part of the prosecution case. We would like
to add, in this regard, that even if Exh.P.37 is to be discarded, the
prosecution case would still stand established on the basis of the evidence of
PWs 1, 2 and 3 read alongwith the evidence of PWs 4 and 6 and the dying
declaration of deceased Sekhar recorded by PW 15 which was duly certified by the
Doctor (PW 13) as having been made by the deceased in his presence in a fit
mental condition.
10. For the aforesaid reasons, we do not consider the present to be a fit
case for any interference. Accordingly, we dismiss the appeal and affirm the
judgment of the High Court.
..................................J.
[P. SATHASIVAM]
...................................J.
[RANJAN GOGOI]
New Delhi, September 20, 2012.
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