(Prayer: Criminal Appeal filed under Section 374(2) of Cr.P.C. against the judgment, dated 18.09.2010, made in S.C.No.92 of 2010, by the learned Additional District and Sessions Judge (FTC), Virudhunagar. )
S. Nagamuthu, J.
1. The appellant is the first accused in S.C.No.92 of 2010 on the file of the learned Additional District and Sessions Judge (FTC), Virudhunagar. There were three other accused by name Karuppasamy, Senthilkumar and Muniyandi and they were arrayed as accused Nos.2 to 4 respectively in the case. The trial Court framed as many as two charges against the accused. The first charge was against the first accused/appellant under Section 302 IPC and the second charge was against the accused Nos.2 to 4 under Sections 302 r/w 34 IPC. The trial Court convicted the appellant/A1 under Section 302 IPC and the accused 2 to 4 under Section 302 r/w 34 IPC and sentenced them to undergo life imprisonment and to pay a fine of Rs.1,000/- each, in default to undergo rigorous imprisonment for six months. Challenging the said conviction and sentence, the accused 2 to 4 filed an appeal in Crl.A.(MD).No.368 of 2010 and the Division Bench of this Court, wherein one of us was a Member (S.NAGAMUTHU, J), allowed the said appeal and acquitted the accused 2 to 4. The appellant/A1 has come up with this appeal challenging his conviction and sentence.
2.The case of the prosecution in brief is as follows; (a) The deceased in this case was one Mr.Dhanapaul. He was a resident of Maniparipatti Village, Sattur Taluk. All these four accused also hail from the same village. Due to a land dispute, there was a long standing enmity between the first accused and the deceased. On account of the same, three years before the occurrence, the deceased had cut the first accused with aruval, in which he sustained injury on his hands. This is stated to be the motive for the first accused. The accused 2 to 4 are associates of the first accused. On account of the said motive, it is alleged that the first accused with the help of the accused 2 to 4 decided to do away with the deceased.
(b) On 27.12.2009, around 11.00 a.m., the deceased was standing at Maniparaipatti Bus-stop, situated at Virudhunagar to Sattur National Highway, along with PW1, who is his sister's daughter. She was then aged hardly 13 years and was studying 7th standard in a private school at Sattur. To enjoy her holiday, she had come to the house of the deceased and at the bus stop, she was with the deceased to catch a bus to go to Duraiyur to the house of one Aravalli. At that time, it is alleged that the accused 1 and 2 came to the place of occurrence. The second accused was having an aruval in his hand. He gave the same to the first accused and directed him to cut the deceased. On receiving the aruval from the second accused, the first accused rushed towards the deceased. By the time, the accused 3 and 4 had also come to the place of occurrence. The accused 3 and 4 held the deceased paving way for the first accused to cut the deceased. The first accused cut the deceased indiscriminately with aruval. PW1 raised alarm. PWs.7 to 9, who were somewhere near the place of occurrence, on hearing the alarm raised by PW1, rushed to the place of occurrence. By the time, all the four accused had run away from the scene of occurrence. The first accused had taken the aruval with him. PW1, thereafter, rushed to the house and informed her family members. Then, PW2, the father of the deceased and others rushed to the place of occurrence. They found the deceased lying in a pool of blood and dead.
(c) Thereafter, PW5 took PW1 to the Police Station, where she made a complaint to PW20 - the Sub Inspector of Police, Vachakkarapatti Police Station. Ex.P1 is the complaint. PW20, on receipt of the complaint, registered a case in Crime No.484 of 2009 under Section 302 IPC. Ex.P18 is the FIR. He forwarded both the documents to the Court. The investigation was taken over by PW21, the Inspector of Police, Vachakkarapatti Police Station.
(d) PW21 went to the place of occurrence and prepared an observation mahazar and a rough sketch at the place of occurrence in the presence of the witnesses. He recovered the bloodstained earth and sample earth from the place of occurrence. He examined PWs.1 to 5 and few more witnesses and recorded their statements. After holding inquest on the body of the deceased, he forwarded the dead body for postmortem.
(e) PW16, an Assistant Surgeon at the Government Hospital at Virudhunagar Government Hospital conducted autopsy on the body of the deceased on 27.12.2009 at 4.00 p.m. She found the following injuries:
1) A cut injury measuring 20cm x 5 cm x depth 20 cm on the right side neck. Intact skin connecting head and body on the left side of 10cm. All major vessels, spinal cord, vertebral column all severed and cut on both side and found separated.
2)Hyoid bone intact. All structures in neck exposed.
3)Right hand was severed and found separately at level of upper 1/3 arm. Skin over right arm not seen below this level. Bone fractured at level of upper 1/3 of humorous and muscles and tendons crushed and destroyed.
4)Severed part of right arm, arm is found hanging by a loose skin part has elbow, wrist and part of palm from wrist a part of palm with right thumb and right index finger hangs. Right middle and little finger and ring finger found separated from body united to each other. Skin on right middle, litter and ring finger intact. All tissues destroyed over right arm and right elbow and wrist.
5)Cut injury 14cm x 8 cm x 10 cm over right hip. Tendons muscles exposed bone intact.
6) Cut injury 18 cm x 10 cm x 8 cm on right hip just below injury No.5. Muscles exposed.
7) Cuty injury 6cm x 1 cm x 0.5 cm over right side of back of chest.
8)Cut injury 4 cm x 1 cm x 0.5 cm over back of right buttock.
9)Laceration 10 cm x 56cm x 10cm over left shoulder on lateral aspect.
10) Abrasion 4cm x 1 cm x 0.5 cm front of left arm.
11) Left arm severed at level of 5cm below elbow bone end cut and tendons muscles exposed.
12)Left forearm found (nc) a separately place with left wrist and left palm and dorsum of hand with all 5 fingers.
13)Laceration 8 cm x 4 cm x 4cm over right side of scalp 1 cm above right ear.
14)(nc)10cm x 6cm x 3cm in front of chest 5 cm below right nipple.(nc).
Ex.P13 is the postmortem certificate. She gave opinion that the death of the deceased was due to shock and haemorrhage due to the multiple injuries found on the body of the deceased. She further opinioned that the said injury could have been caused by a weapon like aruval . (f)PW22 continued the investigation. During the course of investigation, he arrested the second accused at 3.00 p.m. on 28.12.2009 in the presence of the witnesses and on such arrest, the second accused gave a voluntary confession in which he disclosed the place where he had hidden the aruval. In pursuance of the same, he took the Police to that place and produced the aruval. PW22 recovered the same under a mahazar. On 29.12.2009 the accused 1 and 4 surrendered before the learned Judicial Magistrate, Srivilliputhur. On 30.12.2009 he arrested the 3rd accused at 10.15 a.m. at Naduvarpatti Village bus stop. He forwarded him to the Court for Judicial remand. He collected bloodstained cloth from the body of the deceased and forwarded the same to the Court. At his request, the material objects were sent for chemical examination. The report revealed that there was human blood of A group on all the material objects, except on the billhook recovered from the second accused. On completing the investigation, he laid charge sheet gainst the accused.
(g) Based on the above materials, the trial Court framed charges against the accused, as detailed in the first paragraph of this Judgment. The accused denied the same. In order to prove the case, on the side of the prosecution, as many as 22 witnesses were examined and 22 documents and 7 material objects were marked.
(h) Out of the said witnesses, PW1 is the only eyewitness to the occurrence. He has stated that in her very presence in the place of occurrence, the accused 1 and 2 came and at that time, the second accused was armed with aruval. The second accused handed over the aruval to the first accused and the first accused indiscriminately cut the deceased. She further stated that the accused 2 and 3 held the deceased to facilitate the first accused to cut the deceased and that she informed the same to PWs. 2, 4, 5 and others. She also stated about the arrival of PWs.7 to 9, after the alarm raised by her. PW2, the father of the deceased, has stated that on the day of occurrence, between 10.30 a.m. to 11.00 a.m. PW1 came to his house and told that the deceased was cut near the bus-stop. He has not stated that PW1 told about the names of the assailants.
(i) PW3 is the mother of the deceased. She has also stated that when she was at her house between 10.30 a.m. to 11.00 a.m. on the day of the occurrence, PW1 came to the house and informed that the first accused cut the deceased near the bus-stop. She has also stated that then, she, along with PW2, rushed to the place of occurrence and that she found the deceased lying in a pool of blood near the bus-stop. PW4 has turned hostile and he has not supported the case of the prosecution in any manner. PW5 is the brother of the deceased. He has stated that PW1 informed him about the occurrence. He rushed to the place of occurrence and at that time, he found the first accused cut the deceased with aruval. Thus, he claimed to have witnessed the occurrence. PW6 has spoken about the preparation of observation mahazar and rough sketch and recovery of material objects from the place occurrence.
(j) PW7 has turned hostile and he has not supported the case of the prosecution in any manner. PWs.8 and 9 have stated that they heard the alarm raised by PW1. PW8 has also stated that when he rushed to the place of occurrence, PW1 informed him that the first accused cut the deceased. He found the deceased lying in a pool of blood. PW9 has stated that when he rushed to the place of occurrence, on hearing the alarm raised, he found the first accused cutting the deceased. Thus, he has also claimed to have witnessed the occurrence. PW10 is the brother-in-law of the deceased. He has not stated anything incriminating against the accused. He has stated that on hearing the above occurrence, he went to the place of occurrence and found the dead body. PW11 and PW12 have turned hostile and they have not supported the case of the prosecution in any manner. PW13 has spoken about the confession statement given by the second accused.
(k) PW14, the learned Judicial Magistrate, Aruppukkottai, has stated that he recorded the statement of PW1 and others under Section 164 Cr.P.C. PW15, the Village Administrative Officer, has stated about the arrest of the accused, confession made by the accused Nos.1 and 3 at the Police Station. But, no discovery of fact made out of the same. PW16 has spoken about the postmortem conducted and her final opinion regarding the cause of death. PW17, the Head Clerk of the Magistrate Court, has stated that he forwarded the material objects for chemical analysis as ordered by the learned Magistrate. PW18 has spoken about handing over of FIR to the learned Magistrate as directed by the investigating officer. PW19 has stated that he handed over the dead body to the Doctor for postmortem as directed by PW21. PW20 has stated that he registered the case on the complaint of PW1. PW21 has spoken about the investigation done and filing of final report.
(l) When the above incriminating materials were put to the accused under Section 313 of Cr.P.C., they denied the same as false. However, they did not choose to examine any witness nor to mark any document on their side. The defence of the accused was total denial. Having considered all the above, the trial Court convicted them, as detailed in the first paragraph of this judgment. As already pointed out, the accused 2 to 4 had filed Crl.A.(MD).No.368 of 2010 challenging the conviction and sentence passed against them and this Court, vide judgment dated 04.08.2015, allowed the appeal and acquitted the accused 2 to 4. Thus, the appellant/A1 alone is before this Court with this appeal.
3. We have heard the learned counsel for the appellant and the learned Additional Public Prosecutor appearing for the respondent and we have also perused the records carefully.
4. The learned counsel appearing for the appellant/A1 would submit that in this case, the evidence of PW1 has been disbelieved by the Division Bench of this Court while dealing with Crl.A.(MD).No.368 of 2010 and has acquitted the accused 2 to 4. Applying the same yardstick, according to the learned counsel, the evidence of PW1 should be rejected as against the appellant/A1 also and thus, the appellant/A1 is entitled for acquittal.
5. The learned counsel for the appellant/A1 would further point out that Ex.P1 would not have come into being at the time as it is projected by the prosecution. He would further submit that in Crl.A.(MD).No.368 of 2010, the Division Bench has doubted the genuineness of Ex.P1. The learned counsel would further submit that PW1 is a child witness and in the absence of any corroboration from any source, the trial Court ought not to have relied on the evidence of PW1 alone to convict the appellant/A1. Thus, according to the learned counsel, the appellant/A1 is also entitled for acquittal.
6. The learned Additional Public Prosecutor, taking us through the judgment in Crl.A.(MD).No.368 of 2010, pointed out that this Court has not rejected the evidence of PW1 in toto. This Court disbelieved the evidence of PW1 so far as it relates to the accused 2 to 4 alone. Thus, according to the learned Additional Public Prosecutor, there is no reason to reject the evidence of PW1. He would further submit that the complaint, in this case, was made by PW1, who was accompanied by PW5 to the Police Station. Of-course, it is true that this Court in Crl.A.MD).No.368 of 2010 has doubted the genuineness of Ex.P1. The learned Additional Public Prosecutor submitted that on that score, the evidence of PW1 cannot be rejected. He would further submit that the medical evidence duly corroborates the eyewitness account. The motive for the occurrence has also been proved. Thus, according to the learned Additional Public Prosecutor, the trial Court was right in convicting the appellant/first accused.
7. We have considered the above submissions.
8. We have carefully gone through the judgment in Crl.A.(MD).No. 368 of 2010. In that judgment, in fact in paragraph No.9, this Court has expressed doubt regarding the genuineness of Ex.P1 - complaint, but we are unable to take a different view. At the same time, the question is whether on that score, the entire case of the prosecution should be thrown out disbelieving the evidence of PW1 in this case. In our considered view, it is not so. PW1, of-course, is a child witness, but it cannot be said that she was incompetent to be a witness. Her competency was tested by the trial Court and only after having satisfied that she was a competent witness, the trial Court allowed her to give evidence. Her competency was not challenged by the defence at all before the trial Court. Therefore, only on the ground that the PW1 happens to be a child, her evidence cannot be rejected in toto. It is true that in general, a child is prone to tutoring. We cannot presume that under all circumstances, a child witness would have been tutored.
9. Here, in this case, it is stated that PW1, the child had come to enjoy the holiday in the house of her uncle (deceased) and after that, she waited along with the her uncle at the bus-stop to catch a bus to go to Duraiyur and only at that time, the occurrence had taken place. Thus, the presence of PW1, at the place of occurrence, cannot be doubted at all. Apart from the evidence of PW1, the prosecution relies upon the evidences of PWs.8 and 9, who have stated that at the time of occurrence, when they were standing somewhere near the place of occurrence, they heard the alarm raised by PW1 and on hearing the same, they rushed to the place of occurrence and at that time, they had seen the presence of PW1 at the place of occurrence and she was weeping. Thus, the presence of PW1, at the place of occurrence, has been spoken by independent witnesses viz., PWs.8 and 9 also. There is no reason to reject the evidences of these two witnesses.
10. Apart from that, as soon as reaching the place of occurrence, when these witnesses enquired PW1, PW1 told that the deceased was cut by the first accused. This statement of PW1 squarely falls within the ambit of Section 6 of the Indian Evidence Act. PW1 has also stated that she told PWs.7 to 9 about the incident. Thus, it cannot be said that the statement made by PW1 is hit by hearsay rule. From these evidences, the prosecution has clearly established that at the earliest point of time, PW1 has stated that it was this appellant/A1, who cut the deceased. As we have already pointed out, her presence also cannot be doubted.
11. After the occurrence was over, PW1 rushed to the house of PW2, PW3 and others, and informed the occurrence and thereafter, they rushed to the place of occurrence. At the house also, PW1 told PWs.2 and 3 that the deceased was cut by the first accused. PW3 has stated that PW1 told so. Thus, the conduct of PW1 in rushing to the house of PWs.2 and 3 and informing that it was the first accused, who cut the deceased also, is an important circumstance which adds credibility to the evidence of PW1. Thereafter, PWs.2 and 3 had come to the place of occurrence and found the deceased lying dead. The medical evidence also duly corroborates the evidence of PW1. From the foregoing discussions, we have no hesitation to hold that the prosecution has clearly established that it was this appellant/A1 who cut the deceased and caused his death.
12. Now, turning to the argument that Ex.P1 is doubtful, assuming that Ex.P1 is doubtful, in our considered view, on that score, the evidence of PW1, which fully inspires the confidence of the Court as against the appellant/A1, cannot be disbelieved.
13. The learned counsel for the appellant/A1 would further submit that in Crl.A.(MD).No.368 of 2010, this Court has disbelieved the evidence of PW1 as against the accused 2 to 4 and therefore, her evidence should be disbelieved as against the appellant/A1 also. Though attractive, we find no force at all in the said argument. The principle falsus in uno, falsus in omnibus has not been recognised by the Indian Courts. In the Indian scenario, in the evidence of a witness, if it is found that grain and chaff are mixed and in the event, the Court is able to separate the grain from the chaff, there is no legal impediment to act upon the separated grain. In other words, if the truth is mixed with falsehood, the Court can cull out the truths and act upon the same. Applying the said principle to the facts of this case, though the earlier Division Bench of this Court has disbelieved the evidence of PW1 as against the accused 2 to 4, we are not inclined to reject the evidence of PW1 in toto. We hold that the evidence of PW1, so far as the appellant/A1 is concerned, fully inspires the confidence of the Court. The said evidence also draws corroboration from the evidence of PWs.8 and 9, besides the evidences of PWs.2 and 3. From these evidences, we hold that the prosecution has clearly established that it was this accused, who caused the death of the deceased by cutting him with aruval.
14. Having come to the said conclusion, now, we have to examine as to what was the offence committed by the accused by the said Act. According to the prosecution, the motive for the occurrence is that on an earlier occasion, the deceased had cut the hands of the first accused with aruval and by way of retaliation, the appellant/A1 had come to the bus stop i.e., the place of occurrence along with the other accused and caused the death of the deceased by causing as many as 14 cut injuries. Most of the injuries were on vital parts. The weapon used was a dangerous weapon. From these circumstances, it can easily be inferred that the intention of the appellant/A1 was only to cause the death of the deceased. Thus, the act of the appellant/A1 would squarely fall within the first limb of Section 300 IPC and thus, he is liable to be punished for the offence under Section 302 IPC. His act would not fall under any of the exceptions to Section 300 IPC.
15. Now, turning to the quantum of punishment, the trial Court has imposed only the minimum punishment which also requires no interference at the hands of this Court. Thus, we do not find any merit at all in this appeal.
16. In the result, the Criminal Appeal fails and the same is, accordingly, dismissed. The conviction and sentence imposed by the trial Court against the appellant/A1 is hereby confirmed. Consequently connected miscellaneous petition is also dismissed.