Jayanta Kumar Biswas, J.@mdashThe appellant is aggrieved by a judgment of the Additional Sessions Judge, A & N Islands, Port Blair dated February 21, 2012 in Sessions Case No. 60 of 2010 (Sessions Trial No. 66 of 2010) convicting him of an offence under S. 302, IPC and the order of the Judge dated February 22, 2012 imposing the sentence of imprisonment for life with Rs. 2,000 fine, in default, a four-month simple imprisonment and ordering him to pay the victim''s mother Rs. 50,000 compensation. The FIR No. 89 was registered at Bambooflat police station of the district South Andaman on June 02, 2010 at 9.15 p.m. It was registered under S. 307, IPC on the basis of a statement of one Shri S. Karippah of Wright Myo Papita Pahad reduced to writing in Hindi. In the FIR the appellant was named as the sole accused and it was mentioned that the offence was committed on June 02, 2010 at about 8 p.m.
2. Karippah''s statement was as follows. He was residing with his wife and children in a house rented from one S. Alagar at Papita Pahad. His friend Anil was a resident of the Basti. At Alagar''s behest he and Anil were shifting some tins from Alagar''s house to a house Alagar was building. They shifted a few tins and some cement to the godown. While they were coming back from the under construction house to the old house suddenly the appellant, a resident of the Basti, confronted them and asked Anil loudly why did he beat the appellant. In reply Anil said that he would beat the appellant twice over and asked the appellant to tell what he would do in that case. At this the appellant took out a Dao (a billhook) from the back of his waist and started striking at Anil''s neck. Anil fell to the ground. When being frightened he looked at the appellant, the appellant proceeded towards him. In fear of life he ran away to Alagar and told Alagar the whole thing. Alagar and Alagar''s son Chandra Kumar came running with him to the scene of the crime and found Anil lying on the ground bleeding profusely from his neck and left hand. They carried Anil to the road. At that time people from nearby assembled there. In a short while ambulance reached. Anil was taken to PHC. The appellant caused the bodily injuries intending to kill Anil.
3. Anil taken to the PHC at once was declared dead. The investigating officer prepared the site plan mentioning that the case was under S. 302, IPC and at 10.10 p.m. he prepared the first seizure list showing seizure of blood stained piece of concrete and control piece of concrete from the scene of the crime. It was mentioned that both the samples were sealed in separate packets. One A.P. Jabir and one Deva Kumar were the witnesses to the seizure. At 11 p.m. he arrested the appellant from Wright Mayo for committing Anil''s murder. At 11.10 p.m. he prepared the second seizure list showing recovery of a billhook from the appellant and at 11.55 p.m. he prepared the third seizure list showing recovery of the appellant''s blood stained T-shirt and lungi. A.P. Jabir and Deva Kumar signed both the lists as witness. He commenced the inquest at 40 past midnight and completed it at 1.30 a.m.
4. On June 02, 2010 at 11.40 p.m. and again on June 03, 2010 at 11.30 a.m. the appellant was examined by a Bambooflat CHC doctor, who found the appellant physically fit and did not find any fresh injury on the appellant''s body. On June 03, 2010 between 11.00 a.m. and 12.15 p.m. the PHC medical officer conducted post-mortem on Anil. Then at 12.25 p.m. the investigating officer prepared the fourth seizure list showing seizure of Anil''s blood stained trousers, belt and underwear from the PHC mortuary and at 12.45 p.m. he handed over Anil''s dead body to his father. A.P. Jabir and Deva Kumar were witnesses to both.
5. During investigation statements of S. Karippah, Deva Kumar and Chandra Kumar were recorded by the Judicial Magistrate, First Class (II), Port Blair under S. 164, Cr.P.C. on June 07, 2010.
6. Relevant part of Karippah''s S. 164 statement is quoted below:--
Es mahina ka do tarik to main aur Anil tin leke ja raha tha Algeshankar ghar ke liya. Hum dono kooli ke kam kar raha tha. us Samay Tambu Swamy Anil ko rok kar bola ki turn do din Pahele kiw Mujhko Mara. Anil Poocha to kiya Hua. Utna mein Tambu Swamy Anil ko daw se dobar mara. Us Samay mein doar ke chilla ke bhagaya road per. Tambu Swamy mujhko bhi bhagaya. Mein Alegesan aur uska ladka Chandra Kumar ko jakar bola ki Tambu Swamy Anil ko kat kar bhag raha hai. Yeh ghatna 7.45 se 8-00 Baje Raat mein hua hai.
7. Relevant part of Deva Kumar''s S. 164 statement is quoted below:--
Main Stanley ka dukan mein khara tha. Sar Panch Anna Duraya bhi khara tha. Us Samay Tambu Swamy aa raha tha. Aake hum ko chillake bola Anil ko main kaat Diya. Hat mein uska daw bhi tha.
8. Relevant part of Chandra Kumar''s S. 164 statement is quoted below:--
2-6-10 main apna ghar Right Meyo mein tha. Kariban raat ko 8 Baje Karuppiah Bhag kar mera ghar mein aya aur bola ki Chaliya Chaliya jaise mein Bahar Nikla to Karuppiah Bola ke Tambo Swamy ne Anil ko Daw Se Kaat Diya. Mein, mera father S Alagar dono spot mein giya. Waha paar khoon tha aur Anil sidi mein para tha. Mein Chilla, Chilli Kara, Saab log spot mein aya. Hum, Karupiya mera father aur Saab log unko medical le jane ke liye niche le aya. Anil ka father mother aur family member aa gaya. Deva bhaiya police ko phone kiya.
9. The FSL report dated December 2, 2010 (with letters dated September 23, 2010 and September 27, 2010) was sent by the authorities of Forensic Sciences Department, Government of Tamil Nadu to the Superintendent of Police, South Andaman district. It was mentioned that the seven items mentioned in the letter dated September 23, 2010 had been received under unbroken seals on September 7, 2010. The report was that bloods found on the billhook, the lungi, the T-shirt, the trousers and belt and the jatti all were B group human bloods. It was mentioned that the report as such might be used as evidence under S. 293, Cr.P.C.
10. After the investigating officer completed the investigation, the officer concerned submitted a charge-sheet No. 128/10 dated August 18, 2010 against the appellant under S. 302, IPC. After commitment of the case, the Sessions Judge took cognizance on October 06, 2010 and framed charge under S. 302, IPC on February 28, 2011. The appellant pleaded not guilty and claimed to be tried.
11. Between April 01, 2011 and December 05, 2011 the prosecution examined and tendered the following witnesses:- PW1-S. Karippah; PW2-Deva Kumar; PW3-A.P. Jabir; PW4-Anil''s mother; PW5-Anil''s sister; PW6-M. Arumugam (a local person); PW7-Anil''s father; PW8-Chandra Kumar; PW9-Anna Durai; PW10-A. Anbuselvi (Anna Durai''s wife): tendered; PW11-Sulairajan; PW12-PHC medical officer; PW13-head constable registering FIR; PW14-head constable taking photographs; PW15-Alagar; PW16-Veera Laxmi (Alagar''s wife) : tendered; PW17-K. Manickam (inquest witness); PW18-person printing photographs; PW19-investigating officer; PW20-doctor to prove handwriting of doctor examining the appellant.
12. The prosecution exhibited the following documents and materials:- Ex. 1-Karippah''s FIR statement; Ex. 2-Karippah''s S. 164; Exs 3 & 4-first and second seizure lists; Ex. 5-custody memo; Ex. 6-inspection memo; Ex. 7-inquest report; Ex. 8-fourth seizure list; Exs 9, 10 & 11-labels; Ex. 12-third seizure list; Ex. 13-supurdginama; Ex. 14-Deva Kumar''s S. 164; Ex. 15-Chandra Kumar''s s. 164; Ex. 16-post-mortem report; Ex. 17-FIR; Ex. 18-photo-graphs of scene of crime; Ex. 19-Anil''s photographs; Ex. 20-site plan of scene of crime; Ex. 21-appellant''s injury reports (with objection); Ex. 22-FSL report(3 sheets); Mat Ex. I-billhook; Mat Ex. II-control cement; Mat Ex. III-blood stained cement; Mat Ex. IV-appellant''s T-shirt; Mat Ex. V-Anil''s underwear; Mat Ex. VI-Anil''s trousers and belt; Mat Ex. VII-appellant''s lungi.
13. In examination-in-chief PW1 Karippah said as follows:--
I am residing in the rented house belonging to one Mr. Alagar. On 02.06.2010 in the evening at about 7.00/7.30 p.m. in the evening when I was taking tin to my house, the accused person Thambu Swamy asked me as to why I assaulted him and then I asked him as to what he intended to do in case I had assaulted him, at that time one Mr. Chandra Kumar who was the son of my house owner was also present and at that time Anil was also present there and he asked Thambu Swamy as to what happened. After that I heard a sound and turned back towards Anil and found that the hands of Anil was bleeding and Thambuswamy assaulted Anil with a dao twice on the arm of Anil and also on his shoulder. After that I raised cries and thereafter house owner and his son also came. Anil was lying on the floor and myself and two others lifted him and took him to roadside and then many persons gathered.
14. PW1 proved his FIR statement Ex. 1, his S. 164 statement Ex. 2 and the seized billhook Mat Ex. I. By Exs 1 & 2 the prosecution wanted to corroborate his evidence. In cross-examination no step was taken to contradict him by his previous statements Exs 1 & 2. Only Ex. 2 was read over and explained to him. The cross-examination, however, revealed that Hindi and English both were unknown to him, but that Tamil was known to him. He denied that the appellant did not attack Anil with a billhook, and that he did not see Anil at all.
15. In examination-in-chief PW2 Deva Kumar said as follows:--
I am member of Zila Paris had South Andaman. On 2/6/2010 I was the Up-Pradhan of Manar Ghat Gram Panchayat. On that day at about 7.30/8.00 p.m. in the evening I came to the ration shop for ration and waiting for that purpose, and at that time Thambu Swami came to me and stated to me that he had cut off Anil, and at that time I was accompanied with Sarpanch Annadurai and at that time Thambuswamy was accompanied with one dao in his hand and he is wearing apparels also contained blood.
16. PW2 further saying that reaching the scene of the crime and seeing victim Anil and the assembled people he informed police through his phone, proved the first and second seizure lists Exs 3&4, the custody memo Ex. 5, the inspection memo Ex. 6, the inquest report Ex. 7, the fourth seizure list Ex. 8, the labels Exs 9, 10 & 11, the third seizure list Ex. 12, the supurdginama Ex. 13, his S. 164 statement Ex. 14, control and blood stained cements Mat Exs. II & III, the appellant''s T-shirt Mat Ex. IV, Anil''s underwear Mat Ex.. V, Anil''s trousers and belt Mat Ex. VI and the appellant''s lungi Mat Ex. VII.
17. In cross-examination PW2 said, "At that time when accused made confessional statement to me others namely Annadurai, Sone Rajan. Shop owner namely Stanly were present and there were no other customer excepting we people because it was a remote area. Distance between my house and shop of Stanly is about 200/300 mtrs. Distance between shop of Stanly and house of accused is about 400/500 mtrs." The defence did not call his attention to any part of his S. 164 statement Ex. 14.
18. In examination-in-chief PW3 A.P. Jabir said that he received a phone call from Deva Kumar that someone "cut" Anil; that after reaching the scene of the crime he found "Anil was taken down on the road"; that the things mentioned in the seizure lists were seized in his presence; that when the police arrested, the appellant admitted his guilt in his presence. He proved his signatures on the documents on which he signed as one of the witnesses. In cross-examination he remained unshaken.
19. PWs 4, 5 & 7 are Anil''s mother, sister and father respectively. Their evidence is that Anil''s brother Raja informed them that the appellant attacked Anil with a billhook; that they coming together saw Anil bleeding. In cross-examination PW4 said that though she did not see the incident, she saw the appellant running with a billhook in his hand and going towards the police station. PW6, a resident of the place, only said that he heard people saying that Anil was "cut", and that he saw Anil lying on the road bleeding from the cuts on neck and hands.
20. PW8 Chandra Kumar is Karippah''s landlord Alagar''s son. In examination-in-chief he said, "I am the Manager of Reliance Life Insurance. On 2.6.2010 I went to my residence at about 7.45/8.00 during evening and I started watching T.V. and then Karupaiah came running to me and stated to me that Thambuswamy had cut Anil with a dao and I immediately started running towards up and found Anil lying on the ground with bleeding injury and blood was coming through his injury and it stained that place of ground."
21. PW8 proved his S. 164 statement Ex. 15. His cross-examination is quoted below:--
I did not find Thambuswamy at that time at that place after I went there. Not a fact that I did not go to that place and never saw Anil with bleeding injury. I cannot say the number of ambulance. Not a fact that Anil was never taken to hospital by ambulance. I made statement before Magistrate on perhaps 7.6.2010. At this stage the statement (Exbt. 15) is shown to the witness, who says, the front page of my statement does not have any signature. Not a fact that I never came to Magistrate and never made any statement before Magistrate.
22. In examination-in-chief PW9 Anna Durai said as follows:--
On 2.6.2010 I was the Up-sarpanch of Manarghat Panchayat. On that day at about 8.00 p.m. in the night I was seated in front of a shop for purchase of some articles and that shop is located in front of Wright Myo School and at that time only Thambuswamy came running to that place from the side of his house and he was at that time armed with one dao, and at that time I was accompanied with Up-Pradhan Deva Kumar and then Thambuswamy started saying in front of me and also in front of Deva Kumar that he had cut off Anil Kumar and then he had come to that place, and Thambuswamy also asked me and Deva Kumar to take him to police station.
23. In cross-examination PW9 said, "I came to the shop with Deva Kumar together. Distance between that shop and house of Deva Kumar is half KM. Before coming to that shop I went to another tea stall with Deva Kumar to take tea and tea stall is owned by Sollai Rajan. Distance between that shop and tea stall of Sollai Rajan is 10/15 mtrs." PW10 Anbuselvi is Anna Durai''s wife. She was tendered and the defence declined to cross-examine her.
24. In examination-in-chief PW11 Sulairajan said as follows:--
I maintain one tea stall-cum-pan shop at Wright Myo and I have been running that shop for the last 5/6 years and on 2.6.2010 I had been maintaining that shop. On that day at about 7.30/8.00 p.m. I came to the shop of Stalin to purchase some articles for my shop and at that place I saw Deva Kumar and Anna Durai standing at that place and at that place at that time only Thambuswamy came to us armed with one dao in his hand and started stating to us that he had just cut off Anil Kumar and at that time I saw a blood stains on the cloth of Thambuswamy. After that Deva Kumar and Anna Kumar went to the place of occurrence and I also went later there after taking article from the shop.
25. PW11''s cross-examination was mainly to show that he was not present at the place where the appellant, according to the prosecution, made the extra-judicial confession immediately after the incident. In cross-examination PW11 said, "Not a fact that Thambuswamy never stated to me after coming to that place, that he (Thambuswamy) cut Anil Kumar. When Thambuswamy stated all these there were totally 4 persons only.......Thambuswamy stated all these in front of the shop of Stalin and after stating all these he then fled away."
26. PW12 is the Wimberlygunj PHC medical officer doing the post-mortem on Anil. He proved his post-mortem report Ext. 16 and his signature on the fourth seizure list Ext.8 showing seizure of Anil''s blood stained trousers, belt and underwear. In cross-examination he said that the cut injuries mentioned in his report could be caused by a weapon like Mat Ex. I.
27. In examination-in-chief PW12 said as follows:--
After examination I find the following External injuries:
1. One horizontally directed incised wound situated on the front of neck extending from the midline at the level of cricoid cartilage to the lateral border of left sternocleidomastoid muscle. The wound measures 9 cm X 1.5 cm X 0.7 cm and is antemortem in nature.
2. One obliquely directed incised wound situated on the left side of neck 1 cm below the injury No. 1. This wound measures 6 cm X 2 cm X 7 cm and has severed the left internal jugular vein and left common carotid artery in its course. The injury is ante-mortem.
3. On incised wound on the left upper arm on the outer aspect measuring 8 cm X 3 cm X 7 cm fracturing the left humerous. The injury is ante-mortem in nature.
4. Bones fractured of left upper third of numerous as I mentioned in serial No. 3 above.
I am of opinion that the cause of death is the haemorrhage due to deep incised wound on the left side of neck which has cut the major blood vessels supplying the brain. The injury is homicidal in nature and time of death is within 12 to 18 hours prior to the time of post-mortem examination.
28. PW13 is the head constable who registered the FIR Ex. 17. He said that he registered the FIR on the basis of the statement Ex. 1. PW14 is the head constable who took photographs of the scene of the crime. He proved the photographs Ex. 18.
29. PW15 is Karippah''s landlord Alagar. His evidence is that Karippah informed him of the incident, and that immediately he reached the scene of the crime and saw Anil bleeding from his hand and neck injuries. In cross-examination he said that Karippah and Anil were working together, and that Karippah had come to him at about 7.30 p.m. PW16 is Alagar''s wife. She was tendered and not cross-examined.
30. PW17 is a witness to the inquest report Ex. 7. PW18 is the photographer who developed the photographs. He proved the photographs Ex. 19. PW19 is the investigating officer and PW20 is a doctor, who gave evidence that hand writing of the doctor examining the appellant was known to him.
31. In examination-in-chief PW19 said as follows:--
On 02.06.2010 I was posted at IC OP Wimberlygunj under PS Bambooflat. On that day at 20.15 hours I received a telephonic information from Shri Deva Kumar, Up-Pradhan Manarghat Panchayat, mentioning that near the house of one Mr. Alagar one Mr. Anil was assaulted by accused Thambi Swamy with a dah. After receiving this information I made one GD entry in the out post Wimberlygunj and also informed the matter to SHO Bambooflat PS over telephone. After that I left for the PO with other police persons and reaching at the PO I did not find Anil and there was gathering of persons who stated that Anil was already taken to PHC Wimberlygunj. Karpaiah stated to me that in presences of this Karppaiah accused Tambi Swamy inflicted blows with a dah on Anil and then I recorded the statement of S. Karpaiah.
32. His further evidence is that he started the investigation after receiving a copy of the FIR, directed PW14 to take the photographs Exs. 18 & 19, prepared the site plan Ex. 20 and the seizure lists Exs 3, 4, 8 & 12, arrested the appellant armed with the offence weapon at Papita Pahad near Wright Myo, collected the photographs from PW18, deposited the seized materials for their onward transmission to CFSL, and submitted the case diary for filing charge-sheet; and that the FSL report Ex. 22 was filed with a supplementary charge-sheet.
33. In his cross-examination PW19 said as follows:--
I received information at about 08.15 from Deva Kumar, Up Pradhan Manarghat. I reached at the spot at 2028 hours I went there by government vehicle vide No. AN 530. At first I met S. Karupaiah at the spot but not the deceased. By then I had not given the information to SHO in writing. There were other persons numbering about 30-35 and I also met them but they are all not witnesses and I also did not see accused at that place. Body of Anil was not at the spot at that time. At that time I only recorded the statement of Karupaiah but not of others at that time. FIR was chalked out after recording of fardbayan and also after sending information to SHO, it was recorded at 2115 hours, but not a fact that it is not mentioned in the FIR.
34. The appellant was examined under S. 313, Cr.P.C. on December 15, 2011. He said that all the allegations were false. He expressed his willingness to give defence evidence. Accordingly, on January 05, 2012 DWs 1, 2 & 3 were examined. The appellant did not exhibit any document or material. The only evidence of his three defence witnesses is that he is a very good man.
35. The court below discussing the evidence of the witnesses in detail and writing quite a long judgment concluded that the prosecution proved beyond all reasonable doubts that it was the appellant who murdered Anil. The appeal presented through the jail authority, was admitted by this court on December 17, 2012, when Mr. Tulsi Lall, an advocate, was engaged to present the appellant''s case. No prayer was made for suspension of the sentence. The appellant is in jail.
36. Mr. Lall has first submitted as follows. Police received information of the incident over phone first from PW2 Deva Kumar. Essential details were available to register the FIR. PW19 the investigating officer made only a GD entry. PW1 Karippah''s statement Ex. 1, signed by PW1 and hence hit by S. 162, Cr.P.C., could not be used for FIR. The GD entry was not produced. The person, writing Ex. 1, reducing to writing in Hindi statement of PW1 knowing only Tamil, was not examined. The investigating officer did not explain how the statement was recorded. PW3 A.P. Jabir said that PW2 informed him over phone that someone had cut Anil down. Ex. 1 was prepared for substituting the appellant for the real offender.
37. Mr. Lall has next submitted as follows. PW1 Karippah is a totally unreliable witness. His version of the incident in court is totally different from the one recorded in his first statement Ex. 1, Ex. 1 shows that the appellant demanded explanation from Anil, and that Anil gave the reply. His evidence is that the appellant demanded explanation from him, and that he gave the reply. Ex. 1 shows that PW8 Chandra Kumar came after the incident. His evidence is that PW8 was also present. It was 8 p.m. There is no evidence of light. Evidence was taken down with the assistance of a Tamil knowing person, not making any endorsement on the deposition and not examined. The Magistrate recording his S. 164 statement Ex. 2 was not examined.
38. Mr. Lall has then submitted as follows. Evidence given by the chance witnesses PWs 2, 9 & 11, Deva Kumar, Anna Durai and Sulairajan, of a confession at an odd hour is not at all reliable; for Stanly, the natural witness only who could prove the chance, was not examined. Even if the evidence is accepted, it not containing the exact words does not prove a confession; for it is that the appellant made the confession to all at once, not by confiding to them separately, but loudly, as will appear from Ex. 14, PW2 Deva Kumar''s S. 164 statement; and a mere disclosure of an offence is not a confession under S. 24 of the Indian Evidence Act, 1872.
39. Mr. Lall has then submitted regarding the FSL report Ex. 22. His submissions are these. There is no evidence that the seized materials were duly sealed and sent to the FSL. Evidence of PW19 the investigating officer is that he had only deposited the seized materials for their onward transmission to the FSL. There is no evidence that the seized and examined materials were again collected from the FSL. The FSL report could not be admitted into evidence under S. 293, Cr.P.C.
40. Mr. Lall has lastly submitted as follows. The court below did not provide the appellant the services of a competent advocate. Some findings of the court below are not based on evidence and some are based on evidence not admissible in law. It has relied on Exs 1 & 2, not substantive evidence. In any case, the court below ought not to have imposed fine and ordered the appellant to pay compensation.
41. Mr. Lall has relied on the following decisions. On extrajudicial confession:-
42. Mr. Mondal, the Public Prosecutor, has submitted as follows. The phone information was vague and cryptic. Ex. 1 was the first detailed information. Hence Ex. 1 was not hit by S. 162, Cr.P.C. Non-examination of a witness can be no issue, unless prejudice is shown. Defects and lapses in investigation are no grounds for acquittal. It is not that the appellant loudly made a statement disclosing an offence while passing by the shop. There is no evidence that the witnesses had animus against the appellant. The FSL report showing that bloods on all matched was rightly admitted under S. 293, Cr.P.C. Fine and compensation both, however, could not be ordered.
43. Mr. Mondal has relied on the following decisions.
44. In reply, Mr. Lall has submitted that while in Dhananjoy Chatterjee and Yanob Sheikh the respective pieces of phone information were found cryptic, the information in this case given by PW2 was not cryptic; that for unfolding the total narration of facts all the natural and relevant witnesses are to be examined by the prosecution in a criminal case; that non-examination of material witnesses must lead to an adverse inference under S. 114(g) of the Indian Evidence Act, 1872; and that here it is not a case of the investigating officer''s lapses, but of a serious lacuna creating a real doubt about the prosecution case.
45. The prosecution case is that the appellant murdered one Anil Kumar, son of PW7 of Papita Pahad at Wright Myo in Bambooflat police station jurisdiction in the South Andaman district on June 2, 2010 at about 8 p.m.
46. Evidence given by the prosecution witnesses builds the following case. On June 2, 2010 at about 8 p.m. PW1 Karippah and victim Anil were working together at Wright Myo Papita Pahad in South Andaman. The appellant was a resident of the same place. He confronted Karippah and Anil and sought an explanation for a previous attack on him. Hearing the reply he struck Anil on neck and arm with a billhook he was armed with. Anil getting deep cut injuries and profusely bleeding fell to the ground. Frightened Karippah ran to his landlord Alagar''s house and told Alagar and Alagar''s son Chandra Kumar about the incident, and the appellant made a confession to PWs 2, 9 & 11, Deva Kumar, Anna Durai and Sulairajan. Anil taken to the PHC at once was declared dead
47. PWs 4, 5 & 7 are victim Anil''s mother, sister and father respectively. Their evidence and evidence given by the other PWs, the inquest report Ex. 7, the post-mortem report Ex. 16, the supurdginama Ex. 13, the site plan Ex. 20- all these lead to the definite conclusions that the victim was the Anil claimed by the prosecution, that Anil was declared dead by the Wimberlygunj PHC medical officer on June 2, 2010, and that PW12 the PHC medical officer did the post-mortem on Anil on June 3, 2012.
48. The nature of the bodily injuries mentioned in Ex. 16 the post-mortem report and quoted hereinbefore and the opinion of PW12, the PHC medical officer doing the post-mortem on Anil, that the homicidal ante-mortem bodily injuries caused Anil''s death, leave no doubt that it is a case of culpable homicide.
49. Hence the principal questions are:- (i) whether PW1 Karippah examined by the prosecution as the eye-witness to the incident proved that it was the appellant who caused the bodily injuries to Anil; (ii) whether PWs 2, 9 & 11, Deva Kumar, Anna Durai and Sulairajan, examined by the prosecution as the witnesses to a confession made by the appellant, proved that the appellant made a confession to them; and (iii) whether PWs 1,'' 2, 9 & 11 are trustworthy witnesses.
50. PW1 was examined as the eye-witness to the incident. He is also the de facto complainant. He gave evidence that he was with Anil, and that he saw the appellant attacking Anil with a billhook and causing cuts on Anil''s arm and shoulder. He proved his previous statement Ex. 1 reduced to writing by police and his S. 164 statement Ex. 2. The defence did not take any step to contradict him by either of them calling his attention to any part thereof. Exs. 1 & 2 both corroborate his evidence in court that he saw the appellant causing the bodily injuries to Anil with a billhook on June 2, 2010 between 7 p.m. and 8 p.m.
51. Evidence given by PW8 Chandra Kumar is that PW1 told him that the appellant caused bodily injuries to Anil with a billhook, and that immediately he came running to the scene of the crime and found Anil lying on the ground with bleeding injuries. He proved his previous statement, Ex. 15, recorded under S. 164, Cr.P.C. No step was taken to contradict him by the writing. The statement corroborates his evidence given in court.
52. PW15 S. Alagar was PW1''s landlord. Evidence of PW15 is also that PW1 informed him of the incident, and that immediately he reached the scene of the crime and saw Anil bleeding from his hand and neck injuries. In cross-examination he said that PW1 and Anil were working together.
53. It is, therefore, evident that evidence of PW1 Karippah that on June 2, 2010 at about 7.30 p.m. victim Anil was with him near his (Karippah''s) rented house at Wright Myo Papita Pahad is corroborated by Exs 1 & 2, his FIR information reduced to writing and his statement recorded under S. 164, Cr.P.C. respectively, and by the evidence given by PW8 Chandra Kumar, Alagar''s son and PW15 Alagar, Karippah''s landlord. There is not a single reason why PWs 8 & 15 should be disbelieved.
54. It is, however, true that details of the incident found in Ex. 1, PW1 Karippah''s offence information reduced to writing, and in Ex. 2, his S. 164 statement, are absent in his deposition. His evidence in court that the appellant asked him, in the presence of PW8 Chandra Kumar, to reason a previous attack by him on the appellant, that the appellant attacked and cut down Anil who had asked the appellant as to what had happened, and that Alagar and Chandra Kumar came to the place hearing his (Karippah''s) cries created a little confusion as to motive and sequence of events.
55. But no step was taken to contradict PW1 by any part of Exs 1 & 2. His evidence in Tamil was taken down in English with the assistance of a person engaged by the court. The sifting through the evidence, keeping in mind the evidence of PWs 8 & 15 and the corroborative value of Exs 1 & 2, brings out his untainted clinching evidence that he saw the appellant attack Anil with a billhook and cut Anil down. His evidence creating a confusion about motive, whose proof is not a must, in the absence of steps taken for contradicting him does not lead to a conclusion that he was set up to frame the appellant for the offence.
56. As noted before, there is no reason to disbelieve PWs 8 & 15 whose evidence proves that PW1 informed them that the appellant cut Anil down with a billhook, and that PW1 led both of them to the scene of the crime, where they both saw the profusely bleeding victim Anil lying on the ground. And as to the FIR issue to be dealt with presently, there is actually no substance worth impeaching the trustworthiness of PW1.
57. Evidence of PW1 is that police came to his house and reduced his statement to writing on June 2, 2010, and that he signed the statement. He proved the statement Ex. 1. Evidence of PW2 is that seeing victim Anil cut by the appellant he informed the police through his phone. He did not narrate the details of the information; nor was he cross-examined about the nature of the information.
58. Evidence of PW19 is that he received information from PW2 over phone that near one Alagar''s house the appellant had assaulted one Anil with a billhook, and that making a GD entry he left for the place. He (PW19) was not cross-examined about the nature of the information. He clearly narrated how after reducing the statement of PW1 to writing he sent it to the police station and stated that he started the investigation of the case only after receiving a copy of the FIR Ex. 17.
59. The evidence therefore proves that PW2''s phone information of the incident to the police was vague and cryptic and did not contain the essential details for registering an FIR. Ex. 1, on the other hand, contained all the essential details of the incident. Hence the FIR was rightly registered on the basis thereof. The decisions cited by prosecution justify such steps. The investigation of the case was started only after registering the FIR on the basis of Ex. 1.
60. On these proven facts, it is wrong to say that Ex. 1 was hit by S. 162 Cr.P.C. and it will be fanciful to say that non-production of the GD entry and evidence of PW3 A.P. Jabir that PW2 had informed him that someone had cut Anil down are sufficient to doubt the appellant''s implication in the commission of the offence. PW1''s eyewitness evidence of the commission of the offence, corroborated as aforesaid, cannot be rejected on such a fanciful doubt.
61. Evidence of PWs 2, 9 & 11, Deva Kumar, Anna Durai and Sulairajan is that on June 2, 2010 at about 7.30-8 p.m. they were at the shop of one Stanly; that Deva Kumar was the Up-pradhan of Manarghat Gram Panchayat; that Anna Durai was the Up-sarpanch of Manarghat Panchayat; that Sulairajan was the owner of a tea-stall-cum-pan shop; that the appellant holding a billhook came to them and told them that he had cut Anil down; and that reaching the scene of the crime they saw victim Anil. The evidence, if the witnesses are believed, proves an extra judicial confession the appellant made immediately after the incident.
62. The question is why PWs 2,9&11 should not be believed. Their cross-examination has not revealed anything to impeach their credit. No step was taken to contradict them by their previous statements recorded during investigation. Statement of PW2 Deva Kumar was recorded also under S. 164 Cr.P.C. It corroborates his evidence in court of the appellant''s extra judicial confession. Cross-examination to elicit facts from them for mounting an attack on their truthfulness has not brought out anything except minor discrepancies, not worth affecting their trustworthiness.
63. Distance between Stanly''s shop and Sulairajan''s shop, according to Anna Durai, was 10-15 metres and according to Sulairajan, was about 1 kilometre. Sulairajan said he had come to Stanly''s shop for purchasing things for his shop. Deva Kumar and Anna Durai said they had come to Stanly''s shop together for purchasing things. Deva Kumar, Anna Durai and Sulairajan all said that after hearing the appellant''s extra judicial confession Deva Kumar and Anna Durai left for the scene of the crime together. Deva Kumar said that they went riding a motorcycle.
64. According to Deva Kumar, the distance between Stanly*s shop and the appellant''s house was about 400-500 metres and the distance between his house and Stanly''s shop was about 200-300 metres. Anna Durai said that the distance between his house and Stanly''s shop was about half a kilometre.
65. Ex. 20 the site plan shows that Karippah''s house, Alagar''s cement godown, the appellant''s house and Anna Durai''s house formed a cluster of houses, and that the scene of the crime, near the godown, was the middle of a road running between Alagar''s house and cement godown, adjacent to the appellant''s house. The road with forty-one westward down steps led to a wider road, its other eastward end ran between Alagar''s house and godown keeping Alagar''s godown and houses of the appellant and Anna Durai on its right.
66. There is nothing that suggests a case of false evidence of the appellant''s extra judicial confession given by PW2 Deva Kumar, PW9 Anna Durai and PW11 Sulairajan. The argument that since Stanly, the natural witness only who could prove the chance, was not examined, the evidence of extra judicial confession should not be relied on, is not acceptable. Stanly''s non-examination created a situation for a careful scrutiny of evidence of PWs 2, 9 & 11, but not for its outright rejection. And there is no reason to reject or doubt their unimpeachable evidence.
67. There is no merit in the argument that even if it is accepted that PW2 Deva Kumar, PW9 Anna Durai and PW11 Sulairajan were present together at Stanly''s shop, and that after Anil was attacked and cut down the appellant visited the shop and told them about the incident, it cannot be held that the appellant made any extra judicial confession.
68. Evidence was taken down in indirect narration form. Hence the absence of the exact words of the confession in the taken down evidence of PWs 2, 9 & 11 cannot be a ground to doubt their truthfulness. The confiding and loudly saying aspects have been argued chiefly on the basis of Ex. 14 Deva Kumar''s S. 164 statement. PW2 Deva Kumar was not contradicted by any part of Ex. 14. On the proven facts concerning confession, nothing in the cited decisions applies to this case.
69. It has been strenuously argued that Ex. 22 the FSL report dated December 2, 2010 not proved by anyone was improperly admitted into evidence; and that, in any case, the report was not reliable; for no evidence was given that the seized materials had been duly sealed and sent to the FSL. There is no merit in the argument.
70. Evidence of PW19 the investigating officer is that the FSL report was submitted with a supplementary charge-sheet. Thus the report was in the records of the case. In view of the provisions of S. 293 CrPC it could be considered as a piece of evidence without formal proof. Besides, it was, tendered through PW19, marked Ex. 22 without objection. Ex. 22 proves that the FSL received all the materials in sealed condition.
71. Bloods on the seized materials, namely, the billhook (the offence weapon), the appellant''s blood stained T-shirt and lungi, victim Anil''s blood stained trousers, belt and underwear were examined by the FSL and the report is that bloods on all of them were B group human bloods. Hence it can be safely concluded that they all were linked with the offence, and that the report corroborates the prosecution case.
72. The foregoing analysis of the evidence given by the prosecution witnesses leads to the only conclusion that the prosecution rightly charged the appellant of attacking the victim Anil on June 2, 2010 at about 8 p.m. and causing him (Anil) the bodily injuries mentioned in Ex. 16 the post-mortem report and also in the deposition of PW12 the PHC medical officer doing the post-mortem on Anil on June 3, 2010. There can be no doubt that the appellant''s act amounted to a culpable homicide. Hence what is to be examined is whether the culpable homicide was a murder.
73. Evidence given by the eyewitness PW1 Karippah and the two ante mortem homicidal cut injuries on Anil''s neck mentioned by PW12 in Ex. 16 his post mortem report and also in court, as will appear from his deposition quoted hereinbefore, leave absolutely no doubt that the appellant attacked Anil and caused the injuries with Mat Ex.. I the billhook with the intention of causing Anil''s death.
74. There is no evidence that can bring the act within the fold of any of the exceptions in S. 300 IPC. Evidence given by PW1 that the appellant demanded an explanation for a previous attack on him, and that after hearing the reply he attacked Anil and cut him down does not make any of the exceptions applicable to the case. It is a clear case of murder. Hence there is no reason to interfere with the finding of the court below and its decision to convict the appellant of an offence under S. 302 IPC.
75. As to sentence, the imprisonment for life imposed by the court below is the minimum, but the amount of fine, in view of S. 63 IPC, could be unlimited, but not excessive. The court below imposed a Rs. 2000 fine, in default, a four-month simple imprisonment. It also ordered the appellant to pay Anil''s mother Rs. 50,000 compensation. This is hit by S. 357(3) Cr.P.C.; for compensation can be ordered only when fine does not form a part of the sentence imposed. One between the two cannot now be chosen; for fine, a must under S. 302 IPC, cannot be omitted. Hence the compensation has to go. For these reasons, the finding of the court below that the appellant is guilty of an offence under S. 302 IPC is upheld, the sentence of imprisonment for life and a Rs. 2,000 fine, in default, a four-month simple imprisonment imposed by it is maintained, but its order directing the appellant to pay the victim''s mother Rs. 50,000 compensation is set aside. The appeal is allowed to this extent. The department to take steps under S. 388 CrPC at once. Certified xerox.
