A. Kulasekaran, J.@mdashCriminal Appeal No.892 of 1997 has been preferred by the A-5 and Criminal Appeal No.38 of 1998 has been preferred by A-1 to A-5 in S.C.No.417 of 1996 on the file of VII Additional Sessions Judge, Chennai. It is pertinent to mention that in Criminal Appeal No.38 of 1998, A-5 was cited as one of the appellants, though he has filed a separate Criminal Appeal No.892 of 1997 and both the appeals arise out of the judgment dated 14.10.1997 made in the said S.C.No.417 of 1996, which are disposed of by this common judgment.
2. The appellants herein were arrayed as A-1 to A-5 before the learned VII Additional Sessions Judge, Madras and they are tried for the offences u/s 147, 148, 341, 324 read with 34 IPC and 302 read with 34 IPC and all of them were convicted and sentenced to undergo two years R.I u/s 147; three years R.I. u/s 148; simple imprisonment for one month u/s 341; three years R.I. u/s 324 read with 34 IPC with fine of Rs.5000/- each with default sentence of 6 months S.I., besides the appellants 1 to 3 were sentenced for life imprisonment u/s 302 read with 34 IPC and the appellants 4 and 5 were sentenced to life imprisonment u/s 302 read with 149 IPC, however, all the sentences were ordered to run concurrently. The said conviction and sentence is challenged in these appeals.
3. For the sake of convenience, the appellants herein are referred to as A-1 to A-5 as arrayed by the trial court.
4. The facts unfolded by the prosecution and which are necessary for disposal of this appeal are as follows:-
PWs 1 to 3 are sons of the deceased Hameed Moinudden. The prosecution witnesses were residing at No. 14/3, Periyar Nagar, Thiruvanmaiyur. Originally, they lived as a tenant in the said premises and later they purchased the same. While the deceased was away, A-1, A-4, A-5 along with one Siva Kumar demanded Rs.200/- from PW2 towards donation for the temple of the area as the prosecution witnesses became owners of the premises. PW2 informed them that their father was not there and could not pay. Thereafter, PW2 also informed his father, the deceased, about the said demand made by them. The deceased in turn called upon A-1, A-4, A-5 and the said Sivakumar and questioned them as to how they force them to pay Rs.200/- for which they abused the deceased in filthy language. However, the deceased paid Rs.50/- instead of Rs.200/- but they insisted to pay Rs.200/- and a wordy quarrel ensued. On 13.5.1995 at 9.30 p.m. A-1, A-4, A-5 and the said Sivakumar, armed with wooden logs went to the house of the deceased and attacked PW1, PW2, PW3, their mother and also one Durairaj, friend of PW3 and ransacked their house. The prosecution witness gave a complaint to the police. The A-5, who sustained injury in the said incident also gave a complaint against the prosecution witnesses. On receipt of both the complaints, the police have registered a case and counter-case against both the parties. The said Sivakumar was alone arrested and other accused were absconding by then.
5. On 10.05.1995 at about 8.00 p.m. the deceased, PW1, PW2, PW3 proceeded to the house of the sister of PW2 at Thoraipakkam. PW2 and PW3 followed the deceased and PW1 in ten feet distance. While they were near the well of the housing board complex near Pillayar temple, A-1 to A-5 armed with weapons surrounded the deceased and PW1. A-1 caused a cut on the left leg of the deceased with a knife. A-2 cut the deceased on his head by saying ''die''. A-3 cut the deceased on his knee. When PW1 attempted to prevent, all the five accused cut him with knife. They have also cut PW2 and 3 when they came forward to prevent further attack on the deceased and PW1. Thereafter, PW1 sent the deceased in an auto along with PW7 and one Prabhudoss to Government Hospital, Royapettah. The Doctor, PW 10 attended on the deceased at 6.55 p.m. has issued Ex.P20, Accident Register.
6. In the meantime, PW1 went to Thiruvanmaiyur Police Station and gave a Complaint. Ex.P1 to PW13, Sub-Inspector of Police. On receipt of Ex.P1 at 6.30 pm, PW13 registered a case in Crime No.376 of 1995 under Sections 147, 148, 307 IPC and prepared printed FIR, EX.P25 and forwarded the same to higher police officials and to Court. Thereafter, PW13 sent PW1 to hospital with a memo for treatment, as he sustained injuries, to Government Hospital, Royapettah where PW10, the doctor attended on him and issued Ex.P21, accident register at 8.05 pm. PW1 came to know in the hospital that his father breathed his last.
7. The PW13 reached the Government Hospital, Royapettah and recovered the blood-stained shirt of PW1 under a mahazar and went to the scene of occurrence. PW14, Inspector of Police, on receipt of intimation at 7.10 pm came to the police station at 7.30 p.m. and collected the printed FIR. He went to the government hospital, Raoyapettah where he was informed that the deceased died on the way to hospital. He collected Ex.P20, accident register issued to the deceased, came back to the police station and converted the case into one u/s 302 IPC and sent express report, Ex.P26 to the court. He went to the scene of occurrence at 9.30 p.m. and drew rough sketch, Ex.P27 between 10.50 and 11.00 pm. He also prepared observation Mahazar, Ex.P2. He recovered blood-stained soil and sample soil, Mos.8 and 9 under Ex.P3, questioned the witnesses and recorded their statement. He also made arrangement to arrest the accused.
8. On 19.05.1995, he summoned PWs 1, 3 and 5 and other witnesses and went to Government Hospital Royapettah and conducted inquest over the body of the deceased between 7.00 am and 10.30 am. Ex.P21 is the inquest report. After completion of the inquest, he handed over the body of the deceased to head constable No. 2491 with a requisition Ex.P22, requesting the doctor to conduct post-mortem. On receipt of Ex.P22, Dr.Krishnan, Assistant Professor, medico-legal Department conducted post-mortem over the body of the deceased and found the below mentioned injuries:-
1) Abrasions: On front of upper one-third of leg 4 x 0.5cm; (b) middle of right leg 1cm below to the previous injury 3 x 0.5cm (c) on top of right shoulder 5.5 x 0.5cm; (d) front and outer aspect of lower one-third of right thigh 7 x 0.5cm (e) outer aspect of upper one-third of right arm 6 x 0.5cm (f) back of right elbow 2 x 0.5cm; (g) outer and front aspect of left hip 4 x 0.5cm.
2) Cut laceration: on the right frontal region of scalp 6 x 2cm bone deep.
3. An oblique cut injury on the back outer aspect of left knee 19 x 5cm bone deep. Margins are sharp, regular and clean. Anterior end is situated 2.5 cms below to the left pettalla, ends are acute. On dissection, Sub scalp haematoma in the above mentioned regions.
4) Cut fracture of upper end of left fibula bone, left popiliteal blood vessels are found cut.
All the above mentioned injuries are red in colour and ante mortem in nature.
9. The doctor who conducted post-mortem on the body of the deceased and issued Ex.P23, post-mortem certificate opined that the deceased died of shock and haemorrhage due to cut injury to the left leg. The said Doctor Krishnan died and therefore PW11, who is conversant with his handwriting and signature deposed and marked Exs.P23 before the Court.
10. On 21.05.1995 at 12.30 pm PW13 arrested all the five accused and produced them before PW14. The accused were questioned by PW14 separately in the presence of PW8 and one Babu and they have given statements, in which admissible portion of A1 is Ex.P4; A-2 is Ex.P5; A-3 is Ex.P6; A-4 is Ex.P7 and A-5 is Ex.P8. Thereafter, the weapons Mos 3 to 7 hidden in various places were handed over by the accused to PW14 which were recovered under Mahazar Exs.P9, P10, P11, P12 and P13 attested by witnesses. On 22.5.1995, he sent the accused to court for remand. He also sent all the material objects to the court with a request to send them for chemical analysis. Thereafter, he filed the final report against the accused.
11. The accused were questioned u/s 313 Cr.P.C. in respect of the incriminating circumstance appearing against them and they denied the same. The accused have marked Exs.D1, Accident registered copy dated 18.05.1995 issued to the deceased through PW10. The said document is nothing but Ex.P20. The accused have also marked Exs.D2, xerox copy of the FIR relating to the incident which took place at 9.30 pm on 13.05.1995. The said Ex.D2 was marked to show that Serial No.assigned is 172635, whereas, the Serial No. of the FIR in the present case is 172629 though it is later in point of time. Further, in the said proceedings A-5 has stated that instead of another Shanmugam, he was falsely implicated in the case and that the said Shanmugam who is the real culprit was let out and he has got nothing to do with the case.
12. The learned Senior counsel appearing for A-5 and the other counsel for the A-1 to A-4 advanced argument that the prosecution witnesses are interested witness, whose evidence ought not to have been accepted by the trial Court; that there is no motive for the occurrence and the prosecution failed to prove the charges against the appellants beyond reasonable doubt. It is also argued that the 5th accused was falsely implicated despite the fact that one another Shanmugam has surrendered voluntarily, which was not considered by the trial court; that the court below failed to consider Exs.D1 and D2 in the proper perspective; that even assuming that the entire bundle of allegations are taken to be true, it will not attract the provisions of section 302 IPC and the conviction and the sentence awarded by the trial Court is liable to be set aside.
13. On the above contentions, we have heard the learned Government Advocate appearing for the respondent and perused the oral documentary evidence.
14. The cause of death of the deceased stands established by the prosecution by examining PW11, who was acquainted with the handwriting of Dr.Krishnan, he who conducted post-mortem over the body of the deceased and issued Ex.P23, post-mortem Certificate. PW11 deposed that it is evident from Ex.P23 that the deceased died on account of shock and haemorrhage due to cut injuries on the left leg, which was caused by homicidal violence. The accused have not chosen to dispute the same either before the trial court or before this court. Hence, we hold that the deceased died of homicidal violence.
15. The prosecution has examined PWs 1 and 3 as witnesses to the occurrence. PW1 in his evidence has stated that to see their sister, he along with PWs 2 and 3 and the deceased proceeded to Thorakpakkam and when they crossed Pillaiyar Temple and went near the well situate in the housing board complex, the accused, armed with weapons surrounded him and the deceased. A-1 abused the deceased with filthy language and shouted that he who gave complaint against them with police and cut the deceased on his left leg by saying ''not to be left alive''. A-2 cut the deceased on his neck by knife by shouting ''die''. A-3 cut the deceased below his right knee by knife and the deceased fell down. He tried to save the deceased and at the time, A-1 attempted to cut on his head but the same was warded of with the result, he sustained the injuries between the thumb and index finger of his left hand. A-4 cut him on his back and A-5 aimed to cut his neck, which fell between his thumb and index finger of his left hand. A-2 cut him below his left knee. A-3 cut him below his left wrist and he also fell down. Immediately, PWs 3 and 3, who were following them in a short distance rushed up and came nearer. On seeing them, all the accused started chasing PWs2 and 3. At that time, PW7 and one Prabhudoss engaged an auto passing that side and removed the deceased to Royapettah Government Hospital. Thereafter, he went to Thiruvanmaiyur Police Station and gave a complaint, Ex.P1 to PW13, Sub-Inspector of Police.
16. PW2 in his evidence has stated that on 11.05.1993, when the deceased was not in the house, A-1, A-4, A-5 and others demanded donation of Rs.200/- from him for the temple as the prosecution witnesses become owner of the premises. He refused to pay the money and informed the same to the deceased on arrival. The deceased to turn called them and questioned as to why they insisted to pay Rs.200/-, however, the deceased offered Rs.50/- instead of Rs.200/- but they insisted Rs.200/- and started abusing the deceased. Thereafter, on 13.05.1995, at 9.30 pm A-1, A-4, A-5 and one Sivakumar attacked him and PW1, PW3, their mother and also their friend Dorairaj and ransacked their house. Hence, he gave a complaint against them and a counter-case was also given by them. Both the complaints were entertained by the police and arrested the said Sivakumar alone but the others absconded. According to PW2, that was the motive for the occurrence, which took place on 18.05.1995 at 6.00 p.m. PW2 also, corroborated the evidence of PW1 pertaining to the occurrence took place on 18.05.1995. PW3 also corroborated the evidence of PW1 and PW2.
17. The argument of the learned counsel for the appellants is that PWs 1 to 3 are interested witness and such their evidence ought not to have been relied on. It is well settled that the evidence of the interested witness is not necessarily unreliable. All that is necessary is that the evidence of interested witness should be subjected to careful scrutiny and accepted with caution. If on such scrutiny the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient in the circumstance of the particular case to base conviction thereon. Followed
18. Keeping in mind the settled principles, we analysed the evidence of PWs 1 and 3. Among them, PW1 sustained injuries, which is evident from Ex.P21, accident register issued by PW10. The evidence of PWs 1 to 3 are natural, corroborative, cogent without any addition or omission and therefore we have no reasons to disbelieve their evidence, hence the argument of the defence is rejected.
19. It is to be noted that immediately after the occurrence, the deceased was removed to Government Hospital, Royapettah in an autorikshaw and the Doctor, PW10 issued Ex.P20 accident registered at 6.55 pm to the deceased. In the meantime, PW1 went to the police station and gave a complaint Ex.P1 to PW13, Sub-Inspector of police and thereafter he was sent to the same Government Hospital along with police constable and he was also treated by PW10 and Ex.P21, accident register was issued to him. In Exs.P20 and P21, it is found mentioned that the deceased and PW1 were attacked by known group of persons with knife at 6.00 p.m. on 18.05.1995 and the details of the injuries sustained by them. The above said documents came to existence soon after the occurrence and support the evidence of PWs 1 to 3.
20. The learned counsel for the appellants argued that the prosecution failed to prove the motive for the occurrence. When there is direct evidence about the murder, motive loses its significance. In a criminal trial, the question of motive is of very little importance which there is direct evidence to prove the crime. As we have already pointed out, the evidence of PWs. 1 to 3 are direct and reliable evidence to prove the crime. Hence, we reject the argument of the learned counsel for the appellants pertaining to motive.
21. PW11 the Doctor, who is conversant with the handwriting of Dr.Krishnan depose4d that on receipt of Ex.P22, requisition from police, post-mortem was conducted by Dr.Krishnan and the post-mortem Certificate Ex.P23 was issued. PW11 in his evidence has categorically stated that the deceased died of shock and haemorrhage due to cut injuries on his left leg and the said injuries were caused by homicidal violence by using the weapons like Mos 3 to 7. The oral evidence of Doctors PWs. 10 and 11 and Exs.P21 and P23 support the ocular evidence.
22. The other argument of the learned senior counsel appearing for A-5 is that the police foisted a false case against him by letting out other Shanmugam, who has surrendered before the Judicial Magistrate, but no piece of evidence was produced by A-5 to show that the said person surrendered for the case on hand.
23. Lengthy arguments were advanced on Ex.D2, FIR relating to the occurrence took place on 13.05.2005 which contain Serial No. 172635 whereas the present case Serial Number is 172629 though it is later occurrence. Though the said argument appears to be attractive, we are unable to accept it since Ex.D2 was only Xerox copy and not a primary evidence. Similarly, Ex.D1 is nothing but Ex.P20, accident register issued to the deceased. Hence, we hold that the said documents namely Exs.D1 and D2 no way useful to the appellants herein.
24. Now, we consider as to whether the conviction imposed by the trial court on the accused u/s 302 is sustainable or not. The deceased died of cut injuries on his left leg. The occurrence took place in the evening. The witnesses gave the correct account of the entire scene. All the accused participated in the commission of the offence in furtherance of common intention, however, they have caused injuries to the deceased and others on non-vital parts of their body, which resulted into the death of the deceased. Hence the appellants are liable to be convicted only u/s 326 read with 34 IPC and not u/s 302 read with 34 IPC. Accordingly, we set aside the conviction u/s 302 read with 34 IPC and instead they are convicted u/s.326 read with 34 IPC and sentence to undergo imprisonment for a period of five years. The conviction and sentence imposed by the trial court in respect of other charges are confirmed.
25. With the above modification, the criminal appeal is dismissed. It is reported that the appellants are on bail. The learned Sessions Judge is directed to take steps to secure the appellants so as to undergo the remaining period of sentence.
