Alagupandi @
Alagupandian Vs. State of Tamil Nadu
[Criminal Appeal
No.1315 of 2009]
J U D G M E N T
Swatanter Kumar, J.
1.
The
present appeal is directed against the judgment of the Madras High Court, Madurai
Bench dated 28th February, 2007, affirming the judgment of conviction and order
of sentence dated 19th July, 2004 passed by the Principal Sessions Judge, Madurai
holding the accused/appellant guilty of an offence under Section 302 IPC and awarding
sentence of life imprisonment and also to pay a fine of Rs. 2,000/-, in
default, to undergo rigorous imprisonment for one year.
2.
The
facts necessary for disposal of the appeal can be stated as follows:- Tamilarasi,
the deceased, was the second wife of one Karuppaiah. After the death of her
husband, she was residing at Sikkandarchavadi and was enjoying the properties
left by her deceased husband and collecting the rent from the properties. Accused
Alagupandi is the son of Karuppaiah, from his first wife. Accused, after the death
of his father, used to demand money from his step mother for which there used to
be quarrel between them.
3.
On
the midnight of 13th / 14th January, 2002, when the deceased was sleeping with
her two sons namely Prabakaran, PW7, and Vinothkumar, PW8, the accused entered
into the house with a knife and caused injuries on her stomach, chest and
thigh. Because of this assault, Tamilarasi died on the spot.
4.
PW-1,
P. Selvaraj, is the brother of the deceased and lived at Theni Village. He was
staying with the deceased (his sister) and was working as a cleaner in the
lorry. On the fateful day, he was sleeping on a rock stone outside the house
when he heard the distressing cry of his sister. When he went inside the house,
he saw the accused coming out of the house with a knife in his hand. The accused
ran towards the western side. Thereupon, he went inside the house and saw his
sister lying in a pool of blood. PW-1 then proceeded to the village headman and
also to the village Panchayat President. Then, he was directed to go to the police
station.
He went to the police
station, gave the complaint Ext. P-1 to Sub-Inspector of Police, PW-11. On the
basis of this complaint, the Police registered a case being Cr. No. 6/2002
under Section 448 and 302 IPC. The FIR Ext. P-10 was registered and sent to the
Court. The Inspector of Police, PW-16 took up the investigation and proceeded to
the scene of occurrence, made investigations in presence of the witnesses, prepared
the Observation Mahazar Ext. P-4 and sketch, Ext. P-15.
Thereafter, the dead body
was sent for autopsy. Dr. Alavudeen, PW-14 attached to the Government Hospital,
conducted the post mortem upon the body of the deceased and gave the post
mortem report, Ext. P-12, wherein he opined that the deceased would have died due
to shock and haemorrhage because of injuries sustained by her. Upon his arrest,
the accused also made a confessional statement in presence of the witnesses
vide Ext. P-17. On the basis of this statement, M.O.6., knife and M.O.7., blood
stained shirt were also recovered vide Ext. P-18. All the material objects were
sent for chemical examination by the forensic department which issued two certificates,
Exts. P-8 and P-9, the chemical examination report and the Serological report,
respectively.
5.
It
may be noticed at this stage itself that PW-7 and PW-8, the two minor children
of the deceased had seen the incident, but their examination was not permitted
by the trial court as is evident from the judgment of the trial court and the
evidence produced before the Court.
6.
The
accused was committed to the Court of Sessions for trial under Sections 448 and
302 IPC and finally vide judgment dated 19th July, 2004, he was convicted and
sentenced to life imprisonment and fine, as afore- noticed.
7.
Upon
appeal preferred by the accused, the High Court sustained the findings of the
Trial Court and dismissed the appeal of the accused vide its judgment dated
28th February, 2007, giving rise to the present appeal.
8.
The
learned counsel appearing for the appellant has contended that :-
a. PW-1 is the sole
witness on whose statement the courts have returned the finding of conviction against
the accused. PW-1 being an interested witness and himself being an accused in another
murder case, it is not safe to rely upon the statement of such witness as, it is
neither reliable nor truthful. Thus, the judgment of conviction is liable to be
set aside.
b. The courts below have
failed to appreciate the evidence in its correct perspective. The prosecution
has not been able to prove its case beyond reasonable doubt. A number of
witnesses had turned hostile and there is no corroboration to the statement of PW-1.
Even the confessional statement recorded by the police is inadmissible. There exists
serious doubt as to the very presence of PW-1 at the place of occurrence. Resultantly,
the appellant is entitled to the benefit of doubt.
9.
First
and foremost, we may deal with the contention as to the presence of PW-1 at the
place of occurrence and whether the statement of the said witness is reliable
and can form the basis of conviction of the accused. According to PW-1 and as
per the case of the prosecution, the occurrence had taken place after 12 a.m./midnight
on 13th/14th January, 2002. The FIR, Ext. P-10 was registered on the basis of the
statement of PW-1. As per the details given in the said Exhibit, it was registered
at 0130 hrs. on 14th January, 2002. Thus, at best, there is nearly one hour gap
between the time of occurrence and registration of the FIR. The presence of PW1
at the house of his sister can hardly be doubted. If PW1 was not present there,
then it could not have been possible for him to see the accused running away
after stabbing his sister and also he could not have met the Sarpanch of the
village and then the Police Officer within a short period of occurrence, which
facts have been proved from the evidence placed on record. PW-1 stated the
entire facts before PW-11, the Sub- Inspector, whereupon the FIR was
registered. According to PW-1, he was staying at the house of his sister and
was working as a cleaner in a lorry. Keeping in view the close relationship
between the parties, we do not see any reason to disbelieve PW-1 in this
regard. Firstly, there is no delay in lodging the FIR and even the delay of 1
and 1½ hour is fully explained by the conduct of PW-1.
10.
As
far as his presence at the place of occurrence is concerned, the learned
counsel appearing for the appellant has not been able to refer to any evidence
that could create even a reasonable doubt as to the presence of PW-1 at the
place of occurrence. In fact when PW-1 was cross-examined by the accused, any
suggestion of this kind was not even put to him in the cross-examination.
11.
PW-1
also stated that on hearing the noise, he ran towards the house of his sister and
thereupon the neighbors Rajammal, Radha, Murugan, Palanimuthu and Muthaiah had also
come there. It is correct that Rajammal and Murugan had not been examined by
the police, while Radha, PW-4 and Muthaiah, PW-2 did not speak favorably for the
prosecution and were declared hostile with the leave of the court.
12.
Palanimuthu,
was examined as PW-3 and he stated that he was living near the house of
Tamilarasi, the deceased. She had cried loudly and then he went and saw that
some people had come there and the deceased was bleeding from her injuries. The
police had come and they collected the earth from the spot and he signed Exts.
P-4 and P-5.
13.
Nothing
adverse came on record in the cross-examination of this witness. PW-3, thus,
has not only supported the case of prosecution, but even provided due
corroboration to the statement of PW-1. When accused was taken into custody, he
made a statement on 17th January, 2002 and stated that when he was five years
old, there was a quarrel between his mother and father and his father had
brought him to Sikkandarchandi. When he was 10 years old, his father contracted
a second marriage with the deceased. He stated the complete history of his
family and about his bitter relationship with the deceased. He also stated that
he had stabbed the deceased. Then, he proceeded to say that he had hidden the knife
with which he had committed the offence on the side of the local tank situated at
Sikkandarchavadi and he could get the same recovered. In furtherance to this
statement, the knife, M.O.6, was recovered. Out of the witnesses to this
confession statement, one attesting witness, P.Rajendran, was not examined,
however, the other witness M. Solaimuthu, was examined as PW-15.
14.
The
courts, relying upon the admissible part of the statement of the accused, held
that the recovery of knife had been effected in accordance with law. Importantly,
we may notice the injuries found on the person of the deceased by Dr. Alavudeen
PW-14, who conducted the post-mortem upon the body of the deceased. The
injuries on the person of the deceased were described by the said witness as
follows:-
a. “An oblique stab
wound on left breast 5 cm below and medical to the left nipple 3 cm x 1 cm. both
ends pointed with regular margine. On dissection the wound passes obliquely
backwards and upwards and inwards, piercing the underlying intercostals
muscles, vessels and nerves and left ventricle 2 cm x 0.5 cm entering into
cavity.
b. An oblique stab wound
on left hyppchondrium 5 cm below the left costal margin 4 cm x 1 cm x entering into
abdominal cavity through which the loops of small bowel found protruding out. Both
ends pointed with regular margin. On dissection the wound passes obliquely, backwards
and inwards.
c. An oblique stab wound
3 cm x 1 cm x entering into abdominal cavity on the right side of upper abdomen
4 cm below the right costal margin through which loops of small bowel found
protruding out, both ends pointed with regular margins. On dissection the wound
passes obliquely downwards, backwards and medially.
d. A vertical oblique
stab wound 3 cm x 1 cm on the outer aspect of the left thigh 13 cm from left anterior
superior liiac spine. Both ends pointed, margins regular. On dissection the
wound passes backwards, medially and upwards, piercing the underlying muscles,
nerves and vessels and ends as a point.
e. An oblique stab wound
on the back of left side of abdomen 3 cm above the left ilisc crest 3 cm x 1 cm.
both ends pointed with regular margins. On dissection: the wound passes upwards,
forwards and medially piercing the underlying tissues, entering the peritoneal
cavity.
f. An oblique out injury
on the back of left forearm 6 cm above the wrist 3 cm x 1 cm x bone deep cutting
the underlying muscles, vessels, nerves and bones.
g. An oblique out injury
on the front of left forearm 10 cm above the wrist 8 cm x 2 cm x bone deep cutting
the underlying muscles, vessels, nerves and bones.
h. 8. An oblique out
injury on front of left forearm, 3 cm below injury No. 7 – 8 cm x 2 cm x bone deep
cutting the underlying muscles, vessels and nerves.”
15.
The
case of the prosecution clearly indicates that the present case is, to a very limited
extent, based upon circumstantial evidence and largely there exists ocular and
documentary evidence to support the case of the prosecution. The statements of
PW1, PW6, PW14 as well as the report of the chemical examination and the serology
report, Exts.8 and 9, respectively, clearly establish the material facts that lead
to the irresistible conclusion that the accused had committed the murder of his
step-mother, Tamilarasi.
16.
We
are not impressed with the contention that PW1 is the sole and interested
witness and, therefore, his statement cannot be relied upon by the Court for returning
the finding of conviction. It is a settled principle of law that the Court can record
a finding of guilt while, entirely or substantially, relying upon the statement
of the sole witness, provided his statement is trustworthy, reliable and finds corroboration
from other prosecution evidence. In the case of Govindaraju @ Govinda v. State
of Sriramapuram P.S. & Anr., [Crl. Appeal No. 984 of 2007 decided on March
15, 2012], this Court held as under: “11. Now, we come to the second submission
raised on behalf of the appellant that the material witness has not been examined
and the reliance cannot be placed upon the sole testimony of the police witness
(eye-witness). It is a settled proposition of law of evidence that it is not the
number of witnesses that matters but it is the substance. It is also not necessary
to examine a large number of witnesses if the prosecution can bring home the
guilt of the accused even with a limited number of witnesses. In the case of
Lallu Manjhi and Anr. vs. State of Jharkhand (2003) 2 SCC 401, this Court had
classified the oral testimony of the witnesses into three categories:- a.
Wholly reliable; b. Wholly unreliable; and c. Neither wholly reliable nor
wholly unreliable. 12. In the third category of witnesses, the Court has to be cautious
and see if the statement of such witness is corroborated, either by the other witnesses
or by other documentary or expert evidence. Equally well settled is the proposition
of law that where there is a sole witness to the incident, his evidence has to
be accepted with caution and after testing it on the touchstone of evidence tendered
by other witnesses or evidence otherwise recorded. The evidence of a sole
witness should be cogent, reliable and must essentially fit into the chain of events
that have been stated by the prosecution. When the prosecution relies upon the
testimony of a sole eye-witness, then such evidence has to be wholly reliable and
trustworthy. Presence of such witness at the occurrence should not be doubtful.
If the evidence of the sole witness is in conflict with the other witnesses, it
may not be safe to make such a statement as a foundation of the conviction of the
accused. These are the few principles which the Court has stated consistently and
with certainty. Reference in this regard can be made to the cases of Joseph v. State
of Kerala (2003) 1 SCC 465 and Tika Ram v. State of Madhya Pradesh (2007) 15
SCC 760. Even in the case of Jhapsa Kabari and Others v. State of Bihar (2001)
10 SCC 94, this Court took the view that if the presence of a witness is
doubtful, it becomes a case of conviction based on the testimony of a solitary
witness. There is, however, no bar in basing the conviction on the testimony of
a solitary witness so long as the said witness is reliable and trustworthy. 13.
In the case of Jhapsa Kabari (supra), this Court noted the fact that simply
because one of the witnesses (a 14 years old boy) did not name the wife of the
deceased in the fardbayan, it would not in any way affect the testimony of the eye-witness
i.e. the wife of the deceased, who had given graphic account of the attack on
her husband and her brother-in-law by the accused persons. Where the statement
of an eye-witness is found to be reliable, trustworthy and consistent with the
course of events, the conviction can be based on her sole testimony. There is no
bar in basing the conviction of an accused on the testimony of a solitary
witness as long as the said witness is reliable and trustworthy.”
17.
In
view of the settled position of law, we find that the statement of PW1 inspires
confidence and is truthful and reliable. His statement does not suffer from any
material contradictions. On the other hand, it gives a correct eye-version of
what this witness saw. If PW1 intended to lie, nothing prevented him from
saying that he was also an eye-witness to the scene of stabbing of the deceased
by the accused. He only stated that this crime was witnessed by the two minor
children of the deceased and he had merely seen the accused running out from
the house of the deceased with a knife in his hand. Where a sole witness has stated
exactly what he had actually seen and the said statement otherwise fits into the
case of the prosecution and is trustworthy, the Court normally would not be
inclined to reject the statement of such sole witness. Furthermore, it is contended
that the statement of PW-1 cannot be relied upon by the Court also for the ground
that he is an interested witness. This argument is equally without merit. The
presence of PW1 at the house of his sister is natural. He was working as a
cleaner and was staying with his sister in the same village. He was sleeping
outside the house of the deceased and went towards the house upon hearing her
screams. Every witness, who is related to the deceased cannot be said to be an
interested witness who will depose falsely to implicate the accused. In the
present case, the accused is also related to PW1 and there could be no reason for
PW1 to falsely implicate the accused.
18.
We
have already discussed that the statement of PW1 is worthy of credence. In the
case of Mano Dutt & Anr. v. State of U.P. [Crl. Appeal No. 77 of 2007
decided on 29th February, 2012], a Bench of this Court held that it is not the
quantity but the quality of the evidence which would bring success to the case
of the prosecution or give benefit of doubt to the accused. Statement of every
related witness cannot, as a matter of rule, be rejected by the Courts. This
court, in the aforesaid case, held as under:
19.
“19.
Another contention raised on behalf of the accused/appellants is that only
family members of the deceased were examined as witnesses and they being interested
witnesses cannot be relied upon. Furthermore, the prosecution did not examine any
independent witnesses and, therefore, the prosecution has failed to establish
its case beyond reasonable doubt. This argument is again without much
substance. Firstly, there is no bar in law in examining family members, or any
other person, as witnesses. More often than not, in such cases involving family
members of both sides, it is a member of the family or a friend who comes to
rescue the injured. Those alone are the people who take the risk of sustaining injuries
by jumping into such a quarrel and trying to defuse the crisis. Besides, when
the statement of witnesses, who are relatives, or are parties known to the
affected party, is credible, reliable, trustworthy, admissible in accordance with
the law and corroborated by other witnesses or documentary evidence of the prosecution,
there would hardly be any reason for the Court to reject such evidence merely
on the ground that the witness was family member or interested witness or person
known to the affected party. There can be cases where it would be but inevitable
to examine such witnesses, because, as the events occurred, they were the natural
or the only eye witness available to give the complete version of the incident.
In this regard, we may refer to the judgments of this Court, in the case of
Namdeo v. State of Maharashtra, [(2007) 14 SCC 150]. This Court drew a clear
distinction between a chance witness and a natural witness. Both these
witnesses have to be relied upon subject to their evidence being trustworthy and
admissible in accordance with the law. This Court, in the said judgment, held as
under: “28. From the aforesaid discussion, it is clear that Indian legal system
does not insist on plurality of witnesses. Neither the legislature (Section 134
of the Evidence Act, 1872) nor the judiciary mandates that there must be
particular number of witnesses to record an order of conviction against the accused.
Our legal system has always laid emphasis on value, weight and quality of evidence
rather than on quantity, multiplicity or plurality of witnesses. It is,
therefore, open to a competent court to fully and completely rely on a solitary
witness and record conviction. Conversely, it may acquit the accused in spite
of testimony of several witnesses if it is not satisfied about the quality of evidence.
The bald contention that no conviction can be recorded in case of a solitary
eyewitness, therefore, has no force and must be negatived. 29. It was then contended
that the only eyewitness, PW 6 Sopan was none other than the son of the
deceased. He was, therefore, “highly interested” witness and his deposition should,
therefore, be discarded as it has not been corroborated in material particulars
by other witnesses. We are unable to uphold the contention. In our judgment, a
witness who is a relative of the deceased or victim of a crime cannot be
characterised as “interested”. The term “interested” postulates that the witness
has some direct or indirect “interest” in having the accused somehow or the
other convicted due to animus or for some other oblique motive.”
20.
It
will be useful to make a reference of another judgment of this Court, in the
case of Satbir Singh & Ors. v. State of Uttar Pradesh, [(2009) 13 SCC 790],
where this Court held as under: “26. It is now a well-settled principle of law that
only because the witnesses are not independent ones may not by itself be a ground
to discard the prosecution case. If the prosecution case has been supported by
the witnesses and no cogent reason has been shown to discredit their
statements, a judgment of conviction can certainly be based thereupon. Furthermore,
as noticed hereinbefore, at least Dhum Singh (PW 7) is an independent witness. He
had no animus against the accused. False implication of the accused at his hand
had not been suggested, far less established.”
21.
Again
in a very recent judgment in the case of Balraje @ Trimbak v. State of
Maharashtra [(2010) 6 SCC 673], this Court stated that when the eye-witnesses
are stated to be interested and inimically disposed towards the accused, it has
to be noted that it would not be proper to conclude that they would shield the
real culprit and rope in innocent persons. The truth or otherwise of the
evidence has to be weighed pragmatically. The Court would be required to analyse
the evidence of related witnesses and those witnesses who are inimically disposed
towards the accused. But if after careful analysis and scrutiny of their
evidence, the version given by the witnesses appears to be clear, cogent and
credible, there is no reason to discard the same.”
19. It will now be
appropriate to refer to the statement of PW14, the doctor, who performed the
autopsy upon the body of the deceased. According to this witness, he had found multiple
injuries on the person of the deceased and that too, at the vital parts. We have
already noticed the injuries caused, in some detail. The accused inflicted injury
on the breast of the deceased wherein it pierced into the left ventricle of the
heart. Another stab injury was caused by him on the left side of the rib through
which the samall intestine had protruded out. Still, another injury was caused
on the right side of the rib through which also the small intestine had come
out. This is besides the injuries he caused on the left hip, wrist and stomach
of the deceased. This clearly shows that the deceased had come to the house of
the deceased with the definite intention to kill her. The accused, by inflicting
these multiple injuries on vital parts of her body, ensured that she died instantaneously.
There appears dual motive for the accused to commit the crime. Firstly, the
deceased was his step-mother, whose behaviour towards him was not acceptable to
the accused. Secondly, the entire properties left by the father of the accused and
husband of the deceased, were being enjoyed by the deceased herself. Furthermore,
every time the accused had to ask for money from the deceased and more often than
not, she refused to give him the money. These circumstances emerging from the
record clearly show reason for some kind of animosity and ill-will on the part
of the accused towards the deceased. Existence of a motive for committing a
crime is not an absolute requirement of law but it is always a relevant factor,
which will be taken into consideration by the courts as it will render assistance
to the courts while analysing the prosecution evidence and determining the guilt
of the accused.
20. Statement of PW1,
supported by the statements of PW11, PW6, PW14 and the recovery of the weapon
of crime vide Exhibit M.O. 6, upon disclosure statement of the accused,
completes the chain of events as stated in the case of the prosecution. Except
the part of the disclosure statement of the accused which led to the recovery
of the said knife, the rest of the statement of the accused would be
inadmissible in evidence as per Section 27 of the Indian Evidence Act, 1872.
21. Still, there is another
very vital aspect of the case of the prosecution on which the discussion is
necessary. It has come in evidence in the statement of the Investigating
Officer, PW-16, the Sub-Inspector who recorded the complaint of PW-1, PW-11 and
the witness to the recovery, PW-6 that blood-stained earth was collected from
the place of occurrence and was subsequently sent for chemical examination to the
Forensic Science Laboratory.
22.
According
to PW-16, after the arrest of the accused, the accused had taken the police to
Sikkandarchavadi where he got recovered the wooden- handled bloodstained knife
M.O.6, and the bloodstained shirt worn by him, M.O.7, hidden in the bushes. They
were taken into custody by the Investigating Officer in presence of the attesting
witnesses. The recovered items, along with blood stained blue, green and white
check shirt which the accused was wearing at the time of commission of offence,
were sent to the Director, Regional Forensic Science Laboratory, Madurai for examination
vide Ext. P-7. The serological report, Ext. P-9, was submitted to the Court by
the laboratory. This report provided the result of MO-7 (the said shirt) at
serial No.8 of the report. As per the report, it contained human blood of group
‘A’. It has come in evidence that the blood group of the deceased was ‘A’. The
same blood group was also found on the saree, jacket and gunny bag which were seized
by the Investigating Officer from the place of occurrence. This clearly connects
the accused with the commission of crime. This is a very material and significant
piece of evidence and was put to the accused during his statement under Section
313 CrPC, but except vague denial, the accused said nothing more.
23.
This
is clinching evidence against the accused which fully supports the case of the
prosecution. PW-7 and PW-8 are said to be child witnesses who had seen the
occurrence. They are sons of the deceased. When they appeared before the Court,
the Court put certain questions to both these witnesses to form an opinion
whether they would be able to depose. It granted the permission to PW-7, but
his statement was not recorded. The Court declined permission for examining
PW-8. As such, the statement of both these witnesses was not recorded. It is a
settled principle of law that a child witness can be a competent witness provided
statement of such witness is reliable, truthful and is corroborated by other prosecution
evidence. The Court in such circumstances can safely rely upon the statement of
a child witness and it can form the basis for conviction as well. Further, the evidence
of a child witness and credibility thereof would depend upon the circumstances of
each case. The only precaution which the court should bear in mind while
assessing the evidence of a child witness is that the witness must be reliable one
and his/her demeanour must be like any other competent witness and that there
exists no likelihood of being tutored. There is no rule or practice that in every
case the evidence of such a witness be corroborated by other evidence before a
conviction can be allowed to stand but as a rule of prudence the Court always
finds it desirable to seek corroboration to such evidence from other reliable
evidence placed on record. Further, it is not the law that if a witness is a
child, his evidence shall be rejected, even if it is found reliable. (Ref.
Dattu Ramrao Sakhare v. State of Maharashtra [(1997) 5 SCC 341] and Panchhi v.
State of U.P. [(1998) 7 SCC 177].
24.
This
aspect of the case need not detain us any further, inasmuch as the Trial Court
did not permit recording of statement of these witnesses being child witnesses.
Legality or correctness of this direction of the Trial Court was not questioned
either by the State or by the accused in their appeal before the High Court and
even before this Court.
25.
No
arguments have been addressed even before us by either party that these two
child witnesses should have been examined and that it has caused any prejudice
to any of the parties in the present appeal.
26.
According
to PW-1, these children had seen the accused murdering their mother. Despite
this statement if these witnesses have not been examined and parties have not
raised any objection in that regard, we see no reason to record any findings on
this aspect of the case.
27.
The
concurrent findings of fact recorded by the Courts below, based upon proper appreciation
of evidence clearly prove the guilt of the accused. The statement of PW-1 is
fully corroborated by other witnesses, expert evidence and the medical
evidence.
28.
In
these circumstances, we see no reason to interfere with the finding of guilt as
the well as the order of sentence. Resultantly, the appeal is dismissed.
…….…………......................J.
(A.K. Patnaik)
...….…………......................J.
(Swatanter Kumar)
New
Delhi,
May
8, 2012
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