Palani vs The State Of Tamil Nadu

REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1100 OF 2009

PALANI …Appellant VERSUS

STATE OF TAMIL NADU …Respondent

JUDGMENT

R. BANUMATHI, J

This appeal arises out of the judgment dated 30.07.2008

passed by the High Court of Madras at Madurai Bench in S.B.

Criminal Appeal No. 427 of 2007 in and by which the High Court has

dismissed the appeal filed by the appellant herein thereby

confirming his conviction under Section 148 IPC, Section 435 read

with Section 149 IPC and Section 302 read with Section 149 IPC

and the sentence of imprisonment imposed upon him by the trial

court.

2. Kamala (PW-1) is mother of deceased Sankar and Iyyappan

(PW-2). Vijayalakshmi is the wife of PW-2 and Abbas (PW-3) is Signature Not Verified Digitally signed by brother of PW-1. The genealogy of the deceased party is as under:- MAHABIR SINGH Date: 2018.11.27 16:57:18 IST Reason: 1

Kamala (PW-1-Complainant)

Abbas (PW-3) Maternal Uncle of deceased

Sankar (Deceased) Iyyappan (PW-2) Vijayalakshmi Son of PW-1 Son of PW-1 Wife of PW-2 and elder daughter of A8

Case of the prosecution is that on 19.08.1996 at about 05.00-05.30

PM, Kamala (PW-1), mother of deceased Sankar, Iyappan (PW-2),

brother of deceased and Abbas (PW-3), maternal uncle of deceased

went in an auto to Harikesavanallur to see the child of PW-2 who

was born on 15.08.1996. Deceased Sankar along with Abbas (PW-

3) followed them on a motor cycle. When they reached near

Pilaiyar temple in Harikesavanallur, eight accused persons

Balakrishnan (A1) having aruval, Subramanian (A2) having aruval,

Jenakaran (A3) having knife, Mari @ Mariappan (A4) having knife,

Raja (A5) having knife, Kasi (A6) having aruval, appellant/accused

Palani (A7) having aruval and Jayalakshmi (A8) (since dead) having

match box surrounded the deceased Sankar. On exhortation by

accused Jayalakshmi, accused Mari @ Mariappan stabbed

deceased Sankar from the back and accused Jayalakshmi threw a

lighted match stick into the petrol tank of the bike of deceased

Sankar and burn it into fire. On seeing this, Kamala (PW-1),

2 deceased Sankar and Abbas (PW-3) ran in various directions.

Kamala (PW-1) followed her son deceased Sankar. All the accused

followed them. When they reached near the field, all the accused

surrounded Sankar and accused Balakrishnan cut the deceased on

the right shoulder and left neck with aruval; accused Jenakaran,

Mari @ Mariappan and Raja stabbed the deceased with knives;

accused Kasi and appellant/accused Palani cut deceased Sankar

with aruval. Profusely bleedings, deceased Sankar fell down and

died on the spot. Thereafter, Kamala (PW-1) went to Veeravanallur

Police Station at about 08.00 PM and narrated the whole incident

and lodged the complaint (Ex.-P1) with Ramaiah, Sub-Inspector

(PW-11). On receipt of the complaint (Ex.-P1), Sub-Inspector (PW-

11) registered the FIR (Ex.-P11) under Sections 147, 148, 435, 341

and 302 IPC in Crime No.150 of 1996 against all the accused.

3. Dr. Ulagammal (PW-7) conducted post-mortem on the dead

body of deceased Sankar and after noting multiple injuries, issued

post-mortem certificate (Ex.-P6) opining that the death was caused

due to shock haemorrahage and multiple injuries. On 04.09.1996,

Investigating Officer made application to the court and took

accused No.2, 4, 5 and 6 from judicial custody to police custody.

Based on the disclosure statements of A2, A4, A5 and A6, the

3 weapons – aruvals of different size (bill hooks) and knives (MO-17

to MO-20) were seized under Exts. P26 to P30 from various places

pointed out by the above accused.

4. To prove the guilt of the accused, the prosecution has

examined thirteen witnesses (PWs 1 to 13) and exhibited thirty

three documents (Ex.P1 to P33) and twenty material objects (MOs 1

to 20). The accused were questioned under Section 313 Cr.P.C.

about the incriminating evidence and circumstances and the

accused denied all of them.

5. Upon consideration of evidence of eye-witness Kamala (PW-

1) supported by medical evidence and other evidence, the trial court

convicted all the accused under Sections 148, Section 435 read

with Section 149 IPC and Section 302 read with Section 149 IPC

and sentenced all of them to undergo imprisonment for life. In

appeal, the High Court dismissed the appeal preferred by the

appellant/accused and also the appeals preferred by other accused

No.1, 3, 5 and 6 and affirmed the conviction of the appellant and

sentence of imprisonment imposed by the trial court. The High

Court held that the testimony of eye-witness Kamala (PW-1) is

reliable and the same is corroborated by medical evidence. The

High Court held that the delay in registration of FIR was not fatal to

4 the prosecution case. The High Court allowed the appeal preferred

by accused No.2 and acquitted him.

6. Learned counsel for the appellant-accused submitted that the

testimony of sole eye witness-PW-1 is not credible and that she

could not have witnessed the occurrence at all and the courts below

erred in convicting the appellant based upon the testimony of PW-1.

Learned counsel for the appellant/accused submitted that the

occurrence took place at 05.30 PM and the complaint (Ex.-P1) was

lodged at 08.00 PM and there was a delay of two and half hours in

lodging the complaint which has not been explained by the

prosecution. It was submitted that there was also delay in

dispatching the FIR to Judicial Magistrate that the FIR said to have

been registered at 08.00 PM and reached the court only on the next

day early morning at 05.00 AM on 20.08.1996 and this raises

serious doubt about the prosecution case.

7. Learned counsel for the State submitted that the evidence of

eye-witness PW-1 is natural and amply supported by medical

evidence and evidence of PWs 2 and 3. It was submitted that both

the trial court and the High Court found that evidence of PW-1 is

credible, reliable and trustworthy and the concurrent findings

recorded by the courts below do not suffer from any infirmity.

5 Learned counsel for the State further submitted that the delay has

been properly explained by the prosecution. Learned counsel for

the State submitted that the evidence of PW-1 is amply supported

by medical evidence and by the evidence of PWs 2 and 3 and also

corroborated by recovery of weapons from other co-accused. It was

submitted that PW-1 has categorically stated about the overt act of

the appellant-accused No.7 and the findings recorded by the courts

below is based upon proper appreciation of evidence warranting no

interference.

8. We have carefully considered the rival contentions and

perused the impugned judgment, evidence and materials placed on

record.

9. Kamala (PW-1), mother of deceased Sankar, is the star

witness for the prosecution. In her evidence, PW-1 stated that on

19.08.1996 at about 05.00/05.30 PM, she along with her younger

son deceased Sankar had been to Harikesavanallur in order to see

the new born baby of her elder son Iyyappan (PW-2). When they

alighted from the auto near Harikesavanallur Mukkuveetu Pillayar

Koli, A1 to A7 armed with dangerous weapon like knife and aruval

came towards them and at that time, Jayalakshmi (A8) shouted

“why are you simply watching, cut and kill” and immediately Mari

6 (A4) stabbed the deceased Sankar with knife on his back. Accused

No.8 opened the petrol tank of the bike of deceased Sankar and put

lighted matchstick inside it and burst it into fire. On this, the

deceased party ran into different directions to save themselves.

PW-1 followed deceased Sankar.

10. Regarding the second transaction of the occurrence which

was in the paddy field, PW-1 clearly stated that when they reached

in the paddy field, A1 to A7 surrounded Sankar and accused

Balakrishnan cut deceased Sankar with aruval on his right shoulder

and left side of neck. Accused Janakaran, Mari @ Mariyappan and

Raja repeatedly stabbed Sankar with knives. Accused Kasi and

Palani (appellant) cut Sankar with aruval. Sankar fell down with

bleeding from his head and died on the spot. The evidence of PW-

1 is clear that the accused persons had caused the injuries as

stated by her. The overt act of the accused herein namely Palani

(A7) that he cut the deceased with aruval had been categorically

spoken by PW-1.

11. Assailing the evidence of PW-1, learned counsel for the

appellant submitted that having regard to the place of occurrence –

paddy field with paddy of about one and half feet height, PW-1

could not have been in a position to see the overt act of each of the

7 accused. It was further submitted that the evidence of PW-1 is not

natural as she did not even lift her son Sankar after the occurrence.

It was contended that the clothes of PW-1 were all mud-stained but

there was no blood-stains present on the clothes of PW-1 and the

conduct of PW-1 is quite unnatural and that she did not even lift the

body of her son Sankar.

12. In her cross-examination, PW-1 stated that she did not lift her

son Sankar after his death. PW-1, however, stated that her clothes

were mud-stained. Merely because, no blood-stains were found on

the clothes of PW-1, her evidence cannot be doubted. Likewise, we

find no merit in the contention that PW-1 could not have witnessed

the overt act of the accused. As pointed out in Ext.-P6-Post-Mortem

Certificate, deceased Sankar sustained about eleven incised

wounds and that the body of the deceased was mutilated and the

thumb and palmer aspect of left index finger were missing. There

were also deep cut injuries on the back of the neck and several

other deep cut injuries. The injuries inflicted on the deceased were

so deep that there could be no doubt that PW-1 had not witnessed

the inflicting of injuries on Sankar even though the paddy crops

were about one and a half feet high.

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13. Learned counsel for the appellant submitted that there are

contradictions between the ocular and medical evidence and that all

the injuries as narrated by PW-1 are not corroborated as per the

post-mortem report. As per the opinion of PW-7-Dr. Ulgammal, the

injuries inflicted by the accused persons on deceased were caused

by sharp edged weapons like bill hook (aruval). In her cross-

examination, doctor has stated that it is possible that the injuries

could be caused by any sharp-edged weapons like axe. PW-7

further stated that the width and the depth of injuries can be

increased depending on the manner in which the weapon was

wielded and injury was inflicted. The overt acts described by PW-1

in the FIR has been substantially corroborated by the medical

evidence.

14. As per the alleged variance between the medical and ocular

evidence concerned, it is well-settled that oral evidence has to get

primacy and the medical evidence is basically opinionative and that

the medical evidence states that the injury could have been caused

in the manner alleged and nothing more. The testimony of the eye

witness cannot be thrown out on the ground of inconsistency. In

State of Haryana v. Bhagirath and others (1999) 5 SCC 96, it was

held as under:-

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“15. The opinion given by a medical witness need not be the last word on the subject. Such an opinion shall be tested by the court. If the opinion is bereft of logic or objectivity, the court is not obliged to go by that opinion. After all opinion is what is formed in the mind of a person regarding a fact situation………”

When the opinion given is not inconsistent with the probability of the

case, the court cannot discard the credible direct evidence

otherwise the administration of justice is to depend on the

opinionative evidence of medical expert. The medical jurisprudence

is not an exact science with precision; but merely opinionative. In

the case in hand, the contradictions pointed out between the oral

and medical evidence are not so grave in nature that can prove fatal

to the prosecution case.

15. So far as the contention of the appellant/accused that PWs 2

and 3 have not stated anything about the second transaction in the

paddy field, as submitted by the learned counsel for the State, when

the deceased was attacked by Mari (A4) and the motor-cycle was

set ablaze, PWs 1 to 3 and deceased Sankar scattered and ran in

different directions. PW-1 followed the direction in which the

deceased ran that is towards the paddy field where the deceased

was surrounded by the accused persons. Even though, PW-1

shouted not to cut the deceased, the accused persons inflicted

injuries on the deceased and also threatened PW-1. When PWs 2

and 3 ran in different directions, it is quite natural that they could not

10 have seen the occurrence. The evidence of PWs 2 and 3 is natural

as they did not claim to be eye witnesses to the second transaction

wherein the deceased was cut and stabbed at the paddy field by

accused including the appellant-accused No.7. The arguments

advanced by the learned counsel for the appellant that PWs 2 and 3

have criminal antecedents and were involved in other criminal cases

are not relevant to be reckoned with.

16. Case of the prosecution is assailed on the ground that there

was delay in registration of FIR and that the FIR reached the court

only at 05.00 AM on the next day i.e. on 20.08.1996 after the

inquest was over. Learned counsel for the appellant submitted that

only after the inquest was over, complaint was prepared and FIR

was registered and that is why, the FIR is verbatim repetition of the

inquest report. After referring to the prosecution evidence, in

particular, evidence of PW-10, the courts below rejected the

arguments of the defence as to the delay in registration of FIR. For

the occurrence at 05.00/05.30 PM on 19.08.1996, FIR was

registered at 08.00 PM. Of course, there was a delay of two and

half hours in registration of FIR; there was also delay in receipt of

FIR by the Judicial Magistrate that is at 05.00 AM on 20.08.1996.

There was attack on PW-1’s son-deceased Sankar in the first part

11 near the temple. Thereafter, in the second part, deceased was

chased by accused persons and on reaching the paddy field,

accused persons surrounded the deceased and attacked him.

Therefore, it is quite clear that the entire occurrence did not take

place in a split second. The occurrence was held in two parts and

in those circumstances, it is quite natural that there is some time

gap before the complaint (Ex.-P1) was lodged at 08.00 PM.

Deceased Sankar was brutally murdered with eleven incised

wounds; naturally it must have taken some time for PW-1-sole eye

witness to come to her normal and then discuss with her relatives

and then proceed to the police station which is situated at a

distance of four kilometres, to lodge the complaint.

17. So far as dispatching FIR, Murugaiah, Head Constable (PW-

10) submitted that the distance between the police station,

Veeravanallur and house of Judicial Magistrate, Cheranmadevi was

seven kilometres and due to this murder, the buses on the route

from Tirunelvelli to Nagarcoil were not plying on that day and

therefore, he had to travel to the house of Judicial Magistrate by

walking. Here again, courts below found that there is nothing

abnormal in the receipt of the FIR by the Magistrate as to affect the

prosecution case.

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18. Delay in setting the law into motion by lodging the complaint is

normally viewed by the courts in suspicion because there is

possibility of concoction of evidence against the accused. In such

cases, it becomes necessary for the prosecution to satisfactorily

explain the delay in registration of FIR. But there may be cases

where the delay in registration of FIR is inevitable and the same has

to be considered. Even a long delay can be condoned if the

witness has no motive for falsely implicating the accused. In the

present case, PW-1 had no motive to falsely implicate the accused.

As pointed out earlier, PW-1 seeing her own son being brutally

attacked, the effect of the incident on the mind of the mother cannot

be measured. Being saddened by the death of her son, it must

have taken sometime for PW-1 to come out of her shock and then

proceed to police station to lodge the FIR. The delay of two and

half hours in lodging the complaint and registration of FIR and the

delay in receipt of the FIR by the Magistrate was rightly held as not

fatal to the prosecution case.

19. Learned counsel for the appellant has further submitted that

as per the prosecution case, the motive of the crime is

misunderstanding between the families of accused and deceased

relating to a marriage proposal with respect to the Vijayalakshmi’s

13 sister and deceased. It was submitted that the alleged motive is

very weak and could not have been the reason for causing the

murder of deceased Sankar.

20. Where the case of the prosecution is based on the evidence

of eye witnesses, the existence or non-existence of motive,

sufficiency or insufficiency of motive will not play such a major role

as in the case which is based on circumstantial evidence. If the

prosecution is able to prove its case or motive, it will be a

corroborative piece of evidence; but if the prosecution had not been

able to prove its case or motive or the motive suggested is too

slender, that will not be a ground to doubt the prosecution case.

When other evidence against the accused is clear and cogent as in

the present case, absence of motive or insufficiency of motive is of

no importance.

21. It was further submitted that PWs 2 and 3 have criminal

antecedents having murder cases registered against them including

the murder of Jayalakshmi (A8). It was contended that PWs 1 to 3

have falsely implicated the accused persons because accused

No.1-Balakrishnan’s mother gave a complaint against PW-2 in

which he was sentenced to undergo four months imprisonment. It

was submitted by learned counsel for the State that PW-2 was

14 sentenced to undergo imprisonment in the said criminal case after

the present incident and not before it. Both the courts below

recorded concurrent findings of fact rejecting the contention of false

implication, we find no ground to interfere with such concurrent

findings of fact.

22. It is pertinent to note that the other accused (A1, A4 and A6)

whose conviction was affirmed by the High Court have already

served their sentence and were released on remission granted by

the State. The appeals preferred by accused No.1, 4 and 6 have

been dismissed as withdrawn by this Court vide order dated

31.10.2018.

23. Evidence of PW-1 is cogent and consistent and her evidence

is amply supported by medical evidence and other evidence. Upon

proper appreciation of evidence, the trial court has convicted the

appellant/accused for causing the murder of deceased Sankar

which was affirmed by the High Court. Upon appreciation of

evidence, the courts below recorded concurrent findings of fact qua

appellant-accused that he along with other accused caused the

murder of deceased Sankar. We do not find any good ground

warranting interference with the verdict of conviction.

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24. In the result, the appeal is dismissed. The appellant-accused

is directed to surrender himself within a period of two weeks from

today, failing which he shall be taken into custody to serve out the

remaining sentence.

…………….……………J. [R. BANUMATHI]

…………….……………J. [INDIRA BANERJEE]

New Delhi;

November 27, 2018

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