Basheer Ahmed Sayeed J.
1. For having caused the murder of one Alagiriswami and causing injuries to P.Ws. 2, 3 and 4 the three appellants before us have been convicted under Section 302 read with Section 34, IPC, and sentenced to life imprisonment by the learned Sessions Judge of Madurai Division in Sessions Case No. 77 of 1956. There were four charges for which the three appellants were tried.
The first charge was against appellants 1 to 3 for the murder of Alagirisami punishable under Section 302 read with Section 34, IPC The second and third charges were against the first appellant for voluntarily causing grievous hurt by a deadly weapon to P.W. 3 punishable under Section 326, IPC and also causing hurt to P.W. 4 punishable under Section 324, IPC The sentences against appellant 1 for these two offences were three years rigorous imprisonment under B. 326,1, P. C, and one year rigorous imprisonment under Section 324, 1. P. G.
The fourth charge was against the 3rd appellant, for voluntarily causing hurt with a deadly weapon to P.W. 2, The offence was punishable under Section 324, 1 P. C, and the sentence imposed was one year rigorous imprisonment.
2. The occurrence is said to have taken place on 30th March 1956 in the village of Arasapatti in the morning at about 7-30. The scene of offence is just opposite the house of P.W. 1. The prosecution story is that there was family quarrel between the appellants and the family of P.W. 3 and the feelings were bitter as confessed to by P.W. 1 herself. The appellants as well as P.Ws. 1 to 4 are all related.
The second and third appellants are brothers of the husband of P.W. 1. The first appellant aged about 18 to 20 is the cousin's son of P.W. 1. The deceased was the younger brother of P.W. 1. P.W. 3 is the father of the deceased. P W. 2 is the mother of the deceased and also P.' W. 1- P- W. 4 is another brother of the deceased. The first appellant is said to have used a overstock when he stabbed the deceased. The third appellant is said to have been armed with a spade. The second appellant Is also said to have been armed with a spear.
3. On 30-3-1956 at about 7-30 a. m. when P.W. 1 sent for her younger brother the deceased and directed him to water the bulls which belonged to her and which were tied in the kitten opposite the house, the third appellant is said to have first attacked the deceased when he was in a bent position on the nape of the neck with a spade and caused an injury which is said to be simple according to the doctor, who gave the post-mortem certificate.
Alarm was then raised by P.W. 1. who was an eye-witness to the occurrence. Then the first appellant is stated to have come when the deceased had fallen down having received the injury from the third appellant and the first appellant is said to have caused a spear injury on the chest of the deceased. This injury is opined by the doctor to have proved to be a fatal one. The further prosecution story is that the 2nd appellant then came to the scene from another side and when the deceased turned having already fallen down ho caused an injury on the left flank with a spear.
This injury is also stated by the doctor P.W. 5 to be a grievous injury. No doubt P.W. 11 would have it that this injury was caused by the 2nd appellant when the deceased was just moving in a staggering fashion after he received the injury from the first, appellant. We shall advert to the evidence of P.W. 11 at a later stage. The evidence is that all these injuries were caused to the deceased when he was just outside the house of P.W. 1 near a tub when he was watering the cattle among which was included a goring bull.
Reference to this goring bull seems to be necessary in view of the fact that the case of the appellants was that it was the goring bull that caused the injuries to the deceased as a result of which he died and not that they used any weapon which caused the injuries which ultimately resulted in his death.
4. After receiving the injuries, the deceased got up and ran into the house of P.W. 1 and there he fell down. According to P.W. 1 and P.W. 11 the village massif was sent for. He came to the scene of occurrence and saw the corpse and recorded Ex. P 1 at about 9 a. m. But according to the village munsif, P. W 1 accompany tiled by P.Ws. 3 and 11 and 4 went to the village munsif's house and there Ex. P, 1 the fhv3C information report was recorded.
After the first information was recorded the police were duly informed and they arrived on the scene at about 2-30 p. m. They made the necessary arrangement for the inquest and also sent the body for post mortem examination and made the necessary investigation and charge-sheeted the appellants. No weapons were recovered and blood-stained clothes either are recovered from the appellants.
5. It is also the prosecution story that the 1st appellant caused three injuries to P.W. 3 and of the three injuries the second injury on the finger is seated to be grievous by the doctor. The first and third injuries stated in Ex, P, 3, the wound certificate issued by P. W, 3 were simple ones. They might have been caused by a felsitic was the opinion of the doctor. According to Ex. P. 4 issued for the injuries found on P.W. 2, there was only a contusion and it was stated to be simple.
When the doctor examined this P. W 2 ho was informed that the injury was due to violence with the handles of a velkambu. The evidence is also to the same effect in the sessions court. This injury is stated to have been caused by the third appellant. There is some doubt as to what exactly was the weapon with which the injury could have been caused to P.W. 2. The evidence is that the third appellant had a spade, when he attacked the deceased. But it is deposed that when he attacked P.W. 2 he had gone away and came back with another weapon.
Though nothing much turns upon this conflicting version still the learned Judge has found that the 3rd appellant must have been possessed only with one weapon, namely, the spade with, the handle throughout the occurrence, P.W. 1 is also said to have been injured during the occurrence, but no charge was framed in respect of the injury caused to her, which was alleged, to have been caused by the 3rd appellant by the use of a spade. Ex. P. 6 is the wound certificate issued for the injury said to have been caused by the 1st appellant to P.W. 4.
This again is a simple injury said to have been caused with a overstock on the right heel of P.W. 4. How exactly the injury could have been caused on the right heel of P.' w. 4 and in what circumstances is not made clear by the evidence.
6. In the committal Court, the only eye wit-ness examined was P.W. 1. P.W. 11, who also claimed in the Sessions Court to have been an eyewitness, was not examined in the committal court. In considering the examination of this witness in the Sessions Court, a strange view has been taken by the learned Sessions Judge, as could be seen from paragraph 19 of his judgment. We are constrained to observe that the observations made by him are not Quite warranted.
Nor could it be said that the reference to Section 173, Criminal P, C, is quite relevant In the context. It has been well-settled that simply because a witness is not examined in the committal court, the prosecution is not precluded from examining that witness in the Sessions Court. Such being the case, the observations made by the learned Sessions Judge are unintelligible to us. He has gone to the extent of saying that if this fact had been brought to his notice earlier, he would not have permitted the examination of that witness before the Sessions Court and for these observations he has relied upon Section 173, Criminal P.C.
The real section that should have been referred to in this connection was S, 207-A, Clause (4). But the learned Sessions Judge has not made any reference to that section. We do not want to make any further observations in this regard with reference to the views expressed by the learned Sessions Judge in paragraph 19 of his Judgment.
7. The prosecution case depends mostly on the evidence of P.Ws. 1 to 4 and P.W. 11 and Ex. P. 1, the first information report. Taking Ex. P. 1, the first information report, in the first instance, as already observed, it was recorded at 9 a. m. when the occurrence had taken place at 7-30 a. m. When it was recorded by the Village Munsif, P W. 13 it transpires that P W. 3, the father of P.W. 1, P.W. 4 another brother of P.W. 1 and P, w. 11, who is said to be a disinterested witness, were all present.
After narrating what all appellants 1 and 2 did to the deceased and to P Ws. 2, 3 and 4, Ex. P. 1 records the names of the three witnesses, namely, Muthukaruppi. Perianachi and Kandasami Thevar who are said to be witnesses to whom the occurrence is known. No doubt Ex. P. 1 also stated that; some others also knew. But no other names were given except the names of these three witnesses as eye-witnesses to the occurrence. Strangely enough, even during the course of the investigation by P.W. 14. Muthukaruppi and Perianachi did ' not mention anything about the occurrence.
They were absolutely of no use as witnesses to the occurrence. Kandaswami Thevar mentioned only, during the course of investigation, as to what he saw the first appellant did to P. W, 4. But when examined in the committal court he went back even on that statement and he was treated as hostile in that court itself. The result was that in the Sessions Court none of these three witnesses whose names were prominently given in Ex. P. 1 were put forth by the prosecution. Therefore the only witnesses that were available to establish the prosecution case were P.Ws. 1 to 4 all of whom are said to have received injuries in the occurrence in addition to1 P.W. 11.
8. Another feature which is worth noticing with regard to Ex. P. 1, the first information report, is the manner in which it was recorded. We have already observed that there is considerable doubt as to the exact place where it was recorded. The witnesses are not uniform in regard the plare of its recording. But that is not a very serious matter and nothing turns upon the place rip; to where Ex. P. 1 was recorded except to show that the witnesses are not speaking the truth when they were contradicting each other.
P. W, 13 was positive when he stated that Ex. P. 1 was recorded in his house; and when questioned as to why P.Ws. 1 and 3 were stating to the contrary, he stated that they must of doing so out of forgetfulness. But the more serious thing that has to be stated in connection with the recording of Ex P. 1 is that notwithstanding the denial of P. 'W. 11 and P.W. 1, P.W. 13 was positive when he stated that when P.W. 1 came to report to him and when Ex P. 1 was about to be recorded, P.Ws. 11 and 3 and others came there.
He went on to say further that when he went inside his house to bring paper, pen and ink, to write the reports and came out, he saw P.Ws. 1, 3 and 11, talking to each other and that when P.Ws. 3 and 11 wanted to supply information to p_ W. 1 in giving the report, he dissuaded them from giving the report as he had started writing Ex. P. 1 saying that P.W. 1 alone should give information about the occurrence.
Not merely this. He asserted in cross-examination that P.Ws. 3 and 11 prompted P W. 1 to implicate the second appellant and that it was at that stage that he warned them that they should not suggest anything to P.W. 1. Till Ex. P. 1 was written up P. Ws, 3 and 11 were there. A suggestion was made to' P.W. 13 that there was a preliminary report taken at the instance of P.W. 1 and that it was not found suitable and thereafter it was destroyed, another report was made up. P.W. 13 no doubt repudiated this suggestion when it was made to him.
Whatever that may be, the fact that when Ex. P. 1 was recorded P.Ws. 3 and 11 prompted P. W, 1 to implicate the second appellant, art from the supply of information to make up that report, is sufficient to reject this Ex. P. l as not representing the true state of affairs as they occurred. This Ex. P. 1 cannot be of any great value. ' If P.Ws. 3 and 11 could go to the extent of prompting P.W. 1 to implicate ft person who was not really an offender, and if p, W 1 were a party to such prompting, we can attach very little weight to such record as Ex. P, 1 in the present case.
Nor could we attach much weight to the evidence of a person like P.W. 3 or P.W. 11 for the matter of that. If witnesses could go to the' length of involving an innocent person in a' serious offence like murder, we should certainly be very chary of attaching any weight to the testimony of such witnesses.
9. Apart from this, P, W. 11 Is a person whose testimony can hardly go in as representing the truth. He stated that the deceased was attacked by the first appellant even as he was walking into the house in a staggering fashion after he received the blow from the third appellant. But this is not supported by the other witnesses. On the other hand, the other witnesses would say that the deceased was attacked by the first appellant when he weir in a lying posture and when he attempted to turn.
It has been elicited from this witness in cross-examination that he stood along with Perianachi and Muthukaruppi at about 15 to 20 feet away from the scene and watched the appellants attacking the deceased and the other P.Ws. We have already referred to the two other witnesses referred to in Ex, P. 1 and who were not available at all for the prosecution as eye witnesses to the occurrence, even from the very early stage.
It transpires further that P W. 11 was once convicted in a murder case and was transported for life. He lived in the Andamans and was released Triruiirh hp stated that the was no enmity between him and the first appellant and denied that there was any intimacy between his sister and the first appellant and also denied that he was a police informant, we do not think that. It would be safe to place any reliance upon the evidence of such witness.
He is nephew of P.W. 3 and there is contradiction between what he has stated in the course of the trial and what he stated earlier before the investigating officer as recorded under Section J62, CrIPC As already observed, he was One of those who went to the length of prompting P, W. 1 to implicate the second appellant. His evidence is therefore worthless and there can be no weight attached to his evidence. P.Ws. 2, 3 and 4 do not speak to the attack on the deceased.
They could speak at best only to the injuries received by them at the hands of the first and third appellants. In the back ground that has been disclosed by the evidence in this case, namely, long standing enmity between the accused's family and the families of the prosecution witnesses on the one hand and of the deceased on the other, we are not impressed with the evidence of the witnesses in the case, even with regard to the attack on them by the accused. Apart from being interested in the deceased they are also inirnically disposed towards the accused.
They do not impress us as truthful witnesses at all. What remains to be considered is the evidence of the sole eye-witness, P.W. 1 who is no other than the sister of the deceased. As already observed she has lent herself to be prompted by P. Ws, 11 and 3 and has also stated that at the time when Ex. P. 1 was being recorded P.W. 4 was already there. We have carefully considered the evidence of P, W. 1 and she does not impress us as a woman who speaks the truth She is quite young aged only about 32 and no lapse of memory could be attributed to her to justify the various inconsistent statements she has made in the course of her examination before the learned Sessions Judge.
Even granting that she is speaking the truth and speaks to what she saw in regard to the offence of the accused 1 to 3 against the deceased, We do not think that it would be safe to place any reliance upon the evidence of this witness in the circumstances that emerge in this case and in the back ground that has already been referred to above. We are, therefore, constrained to observe that for lack of proper, reliable and trustworthy cadence, the case for the prosecution has to fail and the murder has to go unavenged.
We cannot help this. On a consideration of the entire evidence in the case and taking into account the circumstances referred to above, we are of the opinion that We will not be on safe ground if we act upon the sole testimony of P.W. 1 even granting that she was speaking 'the truth, in convicting the accused of the offence of murder and imposing the penalty prescribed by law. We, therefore, hold that in the ciroumstannes of the case the accused are entitled to the benefit of the doubt and we accordingly give this benefit of the doubt, set aside the convictions and sentences against the accused and direct that they be set at liberty forthwith.
10. I entirely agree with my learned brother both in his conclusions and as well as, in this reasons for arriving at those exclusions, I also agree with the comment made by my learned brother on the observations made by the learned Sessions Judge in paragraph 19 of his judgment.
The learned Public Prosecutor brings to my notice that a judgment of mine in Rumanathan v. State 3956 HWN Cr 231 : (S) A.I.R. 1957 Mad 466 (A), is being wrongly construed and that perhaps has given rise to the view taken by the learned Sessions Judge.
The learned Judge does not refer to any case. Granting for the moment that as the learned Public Prosecutor thinks, the above judgment Of mine was perhaps in his mind, still I must point out that the decision cannot b@ interpreted in the way the Sessions Judge has done. That is a case in1 which the prosecution did not cite in the charge sheet certain witnesses whom they wanted to examine subsequently. It is in that context, I had to interpret Section 173 Cri. P.C. Section 173(4) as amended enjoins on the prosecution when a charge sheet is filed, to furnish to the accused copies not only of the lirst information report but also copies of statements under Sections 162 and 164, CrIPC and such other documents on which the prosecution proposes to rely.
Section 173 (4) has nothing to do with the examination of witnesses in Court. It relates only to furnishing of copies of documents to the accused en which the prosecution proposes to rely. As my learned brother has pointed out, the relevant section which applies to the examination of witnesses is Section 207-A (4) which merely states that the Court shall examine witnesses produced by the prosecution as witnesses to the actual commission of the offence alleged.
There is no statutory obligation under the provisions of S, 207 A (4) that the prosecution (shall examine witnesses produced by the prosecution as witnesses to the actual commission of the offence. If the prosecution does not produce all the witnesses to the actual commission of the offence, there is no statutory obligation cast on the Court to compel the examination of those witnesses, though m its discretion it may do so. The spirit of the section is that it is better that all the witnesses to the occurrence are examined.
I would even add that it is necessary that all the witnesses to the commission of the offence are examined. But certainly there is no statutory duty cast on the prosecution to examine P. 11 the eye witnesses to the occurrence at the preliminary stage itself, so that the failure to examine; any witnesses to the occurrence, cannot prevent that witness being examined in the Sessions 1 Court. In any event Section 173 (4) which is referred to by the learned Judge has nothing to do with the examination of witnesses.
The learned Sessions Judge's view that an occurrence witness who has not been examined in the committing; Court should not be examined in the Court of Session doer, not arise on the construction of Section 173 (A) and how he puts this construction is not clear. The decision in : AIR1957Mad466 , which is said by the .'earned Public Prosecutor to have been wrongly construed by several subordinate Courts, has nothing to co with the examination of witnesses who have been cited in the charge sheet and not examined.
It refers only to witnesses who have not been cited in the charge sheet but whom the prosecution wanted to examine subsequently. What I nave said in that decision is that the spirit of the amendment is that the accused should have an overall picture of the case against him before the commencement of the enquiry or trial, so that he may deal with the witnesses in the light of the case against him as disclosed by the statements furnished to him.
I have thought it necessary to add these words to the judgment of my learned brother, in view of the statements of the learned Public Prosecutor that my decision in 1956 MWN 231 : A.I.R. 1957 Mad 486 (A), has given rise to several wrong constructions. The learned Judge will do well to look at the section before he refers to it in the judgment.