PALANI versus STATE OF TAMIL NADU

[2018] 13 S.C.R.

PALANI

STATE OF TAMIL NADU

(Criminal Appeal No. 1100 of 2009)

NOVEMBER 27, 2018

[R. BANUMATHI AND INDIRA BANERJEE, JJ.]

Penal Code, 1860 – ss.148, 435 r/w. s.149 and s.302 r/w.s.149 – Case of the prosecution that when mother and brother of‘S’ (PW-1 and PW-2 respectively) were going in an auto, ‘S’ alongCwith PW-3 followed them on motor cycle – Appellant along withother accused persons surrounded ‘S’ – One of the accused threwa lighted match stick into the petrol tank of the bike of ‘S’ and burntit into fire – On seeing this, PW-1, ‘S’ and PW-3 ran in variousdirections with PW-1 following ‘S’ – When they reached near field,Dall the accused surrounded ‘S’ – ‘S’ was stabbed with knives anddied on the spot – Trial court convicted all the accused – HighCourt dismissed the appeal preferred by the appellant – Held: PW-1 is the star witness for the prosecution – Evidence of PW-1 is clearthat the accused persons had caused the injuries as stated by her –Her evidence is cogent, consistent and amply supported by medicalEevidence and other evidence – Overt act of the appellant that hecut the deceased with aruval had been categorically spoken by PW-1 – Plea of appellant of false implication was concurrently rejectedby both the courts below, there is no ground to interfere with suchconcurrent finding of fact – Upon appreciation of evidence, theFcourts below recorded concurrent findings of fact qua appellant-accused that he along with other accused murdered ‘S’– No groundwarranting interference with the verdict of conviction.

Evidence – Motive – When not important – Held: Where thecase of the prosecution is based on the evidence of eye witnesses,Gthe existence or non-existence of motive, sufficiency or insufficiencyof motive will not play such major role as in the case which isbased on circumstantial evidence.

Evidence – Oral and Medical Evidence – Inconsistencybetween – Held: Oral evidence has to get primacy and the medicalHevidence is basically opinionative.658

Criminal Trial – FIR – Delay in registration of – When notfatal – Discussed.

Dismissing the appeal, the Court

HELD: 1.1 PW-1, mother of deceased ‘S’, is the starwitness for the prosecution. The evidence of PW-1 is clear thatthe accused persons had caused the injuries as stated by her.The overt act of the appellant-accused(A7) that he cut thedeceased with aruval had been categorically spoken by PW-1.[Paras 9, 10][664-E; 665-B]

1.2 The overt acts described by PW-1 in the FIR weresubstantially corroborated by the medical evidence. Evidence ofPW-1 is cogent and consistent and her evidence is amplysupported by medical evidence and other evidence. Both thecourts below having recorded concurrent findings of fact rejectingthe contention of false implication, there is no ground to interferewith such concurrent findings of fact. Upon proper appreciationof evidence, the trial court has convicted the appellant/accusedfor causing the murder of deceased ‘S’ which was affirmed by theHigh Court. Upon appreciation of evidence, the courts belowrecorded concurrent findings of fact qua appellant-accused thathe along with other accused caused the murder of deceased ‘S’.There is no good ground warranting interference with the verdictof conviction. [Paras 13, 21 and 23][666-A-B; 669-A, C-D]

2. Oral evidence has to get primacy and the medicalevidence is basically opinionative. The testimony of the eyewitness cannot be thrown out on the ground of inconsistency.When the opinion given is not inconsistent with the probabilityof the case, the court cannot discard the credible direct evidenceotherwise the administration of justice is to depend on theopinionative evidence of medical expert. The medicaljurisprudence is not an exact science with precision; but merelyopinionative. In the case in hand, the contradictions pointed outbetween the oral and medical evidence are not so grave in naturethat can prove fatal to the prosecution case. [Para 14][666-B-E]3.1 For the occurrence at 05.00/05.30 PM on 19.08.1996,FIR was registered at 08.00 PM. Of course, there was delay oftwo and half hours in registration of FIR; there was also delay in

Areceipt of FIR by the Judicial Magistrate that is at 05.00 AM on20.08.1996. There was attack on PW-1’s son in the first partnear the temple. Thereafter, in the second part, deceased waschased 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 notBtake place in split second. The occurrence was held in twoparts and in those circumstances, it is quite natural that there issome time gap before the complaint (Ex.-P1) was lodged at 08.00PM. Deceased ‘S’ was brutally murdered with eleven incisedwounds; naturally it must have taken some time for PW-1-soleCeye witness to come to her normal and then discuss with herrelatives and then proceed to the police station which is situatedat distance of four kilometres, to lodge the complaint.[Para 16][667-C-F]

3.2 So far as dispatching FIR, Head Constable (PW-10)Dsubmitted that the distance between the police station,Veeravanallur and house of Judicial Magistrate, Cheranmadeviwas seven kilometres and due to this murder, the buses on theroute from Tirunelvelli to Nagarcoil were not plying on that dayand therefore, he had to travel to the house of Judicial Magistrateby walking. Courts below found that there is nothing abnormal inEthe receipt of the FIR by the Magistrate as to affect theprosecution case. Delay in setting the law into motion by lodgingthe complaint is normally viewed by the courts in suspicionbecause there is possibility of concoction of evidence against theaccused. In such cases, it becomes necessary for the prosecutionFto satisfactorily explain the delay in registration of FIR. But theremay be cases where the delay in registration of FIR is inevitableand the same has to be considered. Even long delay can becondoned if the witness has no motive for falsely implicating theaccused. In the present case, PW-1 had no motive to falsely

implicate the accused. PW-1 seeing her own son being brutallyGattacked, the effect of the incident on the mind of the mothercannot be measured. Being saddened by the death of her son, itmust have taken sometime for PW-1 to come out of her shockand then proceed to police station to lodge the FIR. The delay of

two and half hours in lodging the complaint and registration ofFIR and the delay in receipt of the FIR by the Magistrate wasrightly held as not fatal to the prosecution case. [Paras 17,18][667-F-H; 668-A-C]

4. Where the case of the prosecution is based on theevidence of eye witnesses, the existence or non-existence ofmotive, sufficiency or insufficiency of motive will not play such amajor 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 acorroborative piece of evidence; but if the prosecution had notbeen able to prove its case or motive or the motive suggested istoo slender, that will not be ground to doubt the prosecutioncase. When other evidence against the accused is clear and cogentas in the present case, absence of motive or insufficiency of motiveis of no importance. [Para 20][668-E-F]

State of Haryana v. Bhagirath and others (1999) 5 SCC96 : [1999] 3 SCR 529 – relied on.

Case Law Reference

[1999] 3 SCR 529

relied onPara 14

CRIMINAL APPELLATE JURISDICTIONL: Criminal AppealNo. 1100 of 2009.

From the Judgment and Order dated 30.07.2007 of the MaduraiBench of Madras High Court in Criminal Appeal No. 427 of 2007

B. Karunakaran, S. Gowthaman, Advs. for the Appellant.

M. Yogesh Kanna, S. Partha Sarathi, Raja Rajesh Waran S., Advs.for the Respondent.

The Judgment of the Court was delivered by

R. BANUMATHI, J. 1. This appeal arises out of the judgmentdated 30.07.2008 passed by the High Court of Madras at Madurai Benchin S.B. Criminal Appeal No. 427 of 2007 in and by which the High Courthas dismissed the appeal filed by the appellant herein thereby confirminghis conviction under Section 148 IPC, Section 435 read with Section 149IPC and Section 302 read with Section 149 IPC and the sentence ofimprisonment imposed upon him by the trial court.

A2. Kamala (PW-1) is mother of deceased Sankar and Iyyappan(PW-2). Vijayalakshmi is the wife of PW-2 and Abbas (PW-3) is brotherof PW-1. The genealogy of the deceased party is as under:-

Kamala (PW-1-Complainant)

Case of the prosecution is that on 19.08.1996 at about 05.00-05.30PM, Kamala (PW-1), mother of deceased Sankar, Iyappan (PW-2),brother of deceased and Abbas (PW-3), maternal uncle of deceasedwent in an auto to Harikesavanallur to see the child of PW-2 who wasDborn on 15.08.1996. Deceased Sankar along with Abbas (PW-3)followed them on motor cycle. When they reached near Pilaiyar templein Harikesavanallur, eight accused persons Balakrishnan (A1) havingaruval, Subramanian (A2) having aruval, Jenakaran (A3) having knife,Mari @ Mariappan (A4) having knife, Raja (A5) having knife, KasiE(A6) having aruval, appellant/accused Palani (A7) having aruval andJayalakshmi (A8) (since dead) having match box surrounded thedeceased Sankar. On exhortation by accused Jayalakshmi, accusedMari @ Mariappan stabbed deceased Sankar from the back and accusedJayalakshmi threw lighted match stick into the petrol tank of the bikeof deceased Sankar and burn it into fire. On seeing this, Kamala (PW-F1), deceased Sankar and Abbas (PW-3) ran in various directions. Kamala(PW-1) followed her son deceased Sankar. All the accused followedthem. When they reached near the field, all the accused surroundedSankar and accused Balakrishnan cut the deceased on the right shoulderand left neck with aruval; accused Jenakaran, Mari @ Mariappan andGRaja 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 andnarrated the whole incident and lodged the complaint (Ex.-P1) withRamaiah, Sub-Inspector (PW-11). On receipt of the complaint (Ex.-H

P1), Sub-Inspector (PW-11) registered the FIR (Ex.-P11) under Sections147, 148, 435, 341 and 302 IPC in Crime No.150 of 1996 against all theaccused.

3. Dr. Ulagammal (PW-7) conducted post-mortem on the deadbody of deceased Sankar and after noting multiple injuries, issued post-mortem certificate (Ex.-P6) opining that the death was caused due toshock haemorrahage and multiple injuries. On 04.09.1996, InvestigatingOfficer made application to the court and took accused No.2, 4, 5 and 6from judicial custody to police custody. Based on the disclosurestatements of A2, A4, A5 and A6, the weapons – aruvals of differentsize (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 examinedthirteen witnesses (PWs 1 to 13) and exhibited thirty three documents(Ex.P1 to P33) and twenty material objects (MOs 1 to 20). The accusedwere questioned under Section 313 Cr.P.C. about the incriminatingevidence 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 courtconvicted all the accused under Sections 148, Section 435 read withSection 149 IPC and Section 302 read with Section 149 IPC andsentenced all of them to undergo imprisonment for life. In appeal, theHigh Court dismissed the appeal preferred by the appellant/accused andalso the appeals preferred by other accused No.1, 3, 5 and 6 and affirmedthe conviction of the appellant and sentence of imprisonment imposedby the trial court. The High Court held that the testimony of eye-witnessKamala (PW-1) is reliable and the same is corroborated by medicalevidence. The High Court held that the delay in registration of FIR wasnot fatal to the prosecution case. The High Court allowed the appealpreferred by accused No.2 and acquitted him.

6. Learned counsel for the appellant-accused submitted that thetestimony of sole eye witness-PW-1 is not credible and that she couldnot have witnessed the occurrence at all and the courts below erred inconvicting the appellant based upon the testimony of PW-1. Learnedcounsel for the appellant/accused submitted that the occurrence tookplace at 05.30 PM and the complaint (Ex.-P1) was lodged at 08.00 PMand there was delay of two and half hours in lodging the complaint

Awhich has not been explained by the prosecution. It was submitted thatthere was also delay in dispatching the FIR to Judicial Magistrate thatthe FIR said to have been registered at 08.00 PM and reached the courtonly on the next day early morning at 05.00 AM on 20.08.1996 and thisraises serious doubt about the prosecution case.

B7. Learned counsel for the State submitted that the evidence ofeye-witness PW-1 is natural and amply supported by medical evidenceand evidence of PWs 2 and 3. It was submitted that both the trial courtand the High Court found that evidence of PW-1 is credible, reliable andtrustworthy and the concurrent findings recorded by the courts belowdo not suffer from any infirmity. Learned counsel for the State furtherCsubmitted that the delay has been properly explained by the prosecution.Learned counsel for the State submitted that the evidence of PW-1 isamply supported by medical evidence and by the evidence of PWs 2and 3 and also corroborated by recovery of weapons from other co-accused. It was submitted that PW-1 has categorically stated about theDovert act of the appellant-accused No.7 and the findings recorded bythe courts below is based upon proper appreciation of evidence warrantingno interference.

8. We have carefully considered the rival contentions and perusedthe impugned judgment, evidence and materials placed on record.

9. Kamala (PW-1), mother of deceased Sankar, is the star witnessfor the prosecution. In her evidence, PW-1 stated that on 19.08.1996 atabout 05.00/05.30 PM, she along with her younger son deceased Sankarhad been to Harikesavanallur in order to see the new born baby of herelder son Iyyappan (PW-2). When they alighted from the auto nearFHarikesavanallur Mukkuveetu Pillayar Koli, A1 to A7 armed withdangerous weapon like knife and aruval came towards them and at thattime, Jayalakshmi (A8) shouted “why are you simply watching, cut andkill” and immediately Mari (A4) stabbed the deceased Sankar with knifeon his back. Accused No.8 opened the petrol tank of the bike of deceasedSankar and put lighted matchstick inside it and burst it into fire. On this,Gthe deceased party ran into different directions to save themselves. PW-1 followed deceased Sankar.10. Regarding the second transaction of the occurrence whichwas in the paddy field, PW-1 clearly stated that when they reached inthe paddy field, A1 to A7 surrounded Sankar and accused Balakrishnan

cut deceased Sankar with aruval on his right shoulder and left side ofneck. Accused Janakaran, Mari @ Mariyappan and Raja repeatedlystabbed Sankar with knives. Accused Kasi and Palani (appellant) cutSankar with aruval. Sankar fell down with bleeding from his head anddied on the spot. The evidence of PW-1 is clear that the accused personshad caused the injuries as stated by her. The overt act of the accusedherein namely Palani (A7) that he cut the deceased with aruval hadbeen categorically spoken by PW-1.

11. Assailing the evidence of PW-1, learned counsel for theappellant submitted that having regard to the place of occurrence – paddyfield with paddy of about one and half feet height, PW-1 could not havebeen in position to see the overt act of each of the accused. It wasfurther submitted that the evidence of PW-1 is not natural as she did noteven lift her son Sankar after the occurrence. It was contended that theclothes of PW-1 were all mud-stained but there was no blood-stainspresent on the clothes of PW-1 and the conduct of PW-1 is quite unnaturaland 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 herson Sankar after his death. PW-1, however, stated that her clotheswere mud-stained. Merely because, no blood-stains were found on theclothes of PW-1, her evidence cannot be doubted. Likewise, we find nomerit in the contention that PW-1 could not have witnessed the overt actof the accused. As pointed out in Ext.-P6-Post-Mortem Certificate,deceased Sankar sustained about eleven incised wounds and that thebody of the deceased was mutilated and the thumb and palmer aspect ofleft index finger were missing. There were also deep cut injuries on theback of the neck and several other deep cut injuries. The injuries inflictedon the deceased were so deep that there could be no doubt that PW-1had not witnessed the inflicting of injuries on Sankar even though thepaddy crops were about one and half feet high.

13. Learned counsel for the appellant submitted that there arecontradictions between the ocular and medical evidence and that all theinjuries as narrated by PW-1 are not corroborated as per the post-mortemreport. As per the opinion of PW-7-Dr. Ulgammal, the injuries inflictedby the accused persons on deceased were caused by sharp edgedweapons like bill hook (aruval). In her cross-examination, doctor hasstated that it is possible that the injuries could be caused by any sharp-

Aedged weapons like axe. PW-7 further stated that the width and thedepth of injuries can be increased depending on the manner in which theweapon was wielded and injury was inflicted. The overt acts describedby PW-1 in the FIR has been substantially corroborated by the medicalevidence.

B14. As per the alleged variance between the medical and ocularevidence concerned, it is well-settled that oral evidence has to get primacyand the medical evidence is basically opinionative and that the medicalevidence states that the injury could have been caused in the manneralleged and nothing more. The testimony of the eye witness cannot bethrown out on the ground of inconsistency. In State of Haryana v.CBhagirath and others (1999) 5 SCC 96, it was held as under:-

“15. The opinion given by medical witness need not be the lastword 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 obligedto go by that opinion. After all opinion is what is formed in theDmind of person regarding fact situation………”

When the opinion given is not inconsistent with the probability of thecase, the court cannot discard the credible direct evidence otherwisethe administration of justice is to depend on the opinionative evidence ofmedical expert. The medical jurisprudence is not an exact science withEprecision; but merely opinionative. In the case in hand, the contradictionspointed out between the oral and medical evidence are not so grave innature that can prove fatal to the prosecution case.

15. So far as the contention of the appellant/accused that PWs 2and 3 have not stated anything about the second transaction in the paddyFfield, as submitted by the learned counsel for the State, when thedeceased 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 towardsthe paddy field where the deceased was surrounded by the accusedGpersons. Even though, PW-1 shouted not to cut the deceased, theaccused persons inflicted injuries on the deceased and also threatenedPW-1. When PWs 2 and 3 ran in different directions, it is quite naturalthat they could not have seen the occurrence. The evidence of PWs 2and 3 is natural as they did not claim to be eye witnesses to the secondtransaction wherein the deceased was cut and stabbed at the paddyH

field by accused including the appellant-accused No.7. The argumentsadvanced by the learned counsel for the appellant that PWs 2 and 3have criminal antecedents and were involved in other criminal cases arenot relevant to be reckoned with.

16. Case of the prosecution is assailed on the ground that therewas delay in registration of FIR and that the FIR reached the court onlyat 05.00 AM on the next day i.e. on 20.08.1996 after the inquest wasover. Learned counsel for the appellant submitted that only after theinquest was over, complaint was prepared and FIR was registered andthat is why, the FIR is verbatim repetition of the inquest report. Afterreferring to the prosecution evidence, in particular, evidence of PW-10,the courts below rejected the arguments of the defence as to the delayin registration of FIR. For the occurrence at 05.00/05.30 PM on19.08.1996, FIR was registered at 08.00 PM. Of course, there was adelay of two and half hours in registration of FIR; there was also delayin receipt of FIR by the Judicial Magistrate that is at 05.00 AM on20.08.1996. There was attack on PW-1’s son-deceased Sankar in thefirst part near the temple. Thereafter, in the second part, deceased waschased by accused persons and on reaching the paddy field, accusedpersons surrounded the deceased and attacked him. Therefore, it isquite clear that the entire occurrence did not take place in split second.The occurrence was held in two parts and in those circumstances, it isquite natural that there is some time gap before the complaint (Ex.-P1)was lodged at 08.00 PM. Deceased Sankar was brutally murdered witheleven incised wounds; naturally it must have taken some time for PW-1-sole eye witness to come to her normal and then discuss with herrelatives and then proceed to the police station which is situated at adistance 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, Veeravanallurand house of Judicial Magistrate, Cheranmadevi was seven kilometresand due to this murder, the buses on the route from Tirunelvelli toNagarcoil were not plying on that day and therefore, he had to travel tothe house of Judicial Magistrate by walking. Here again, courts belowfound that there is nothing abnormal in the receipt of the FIR by theMagistrate as to affect the prosecution case.

18. Delay in setting the law into motion by lodging the complaint isnormally viewed by the courts in suspicion because there is possibility of

Aconcoction of evidence against the accused. In such cases, it becomesnecessary for the prosecution to satisfactorily explain the delay inregistration of FIR. But there may be cases where the delay in registrationof FIR is inevitable and the same has to be considered. Even longdelay can be condoned if the witness has no motive for falsely implicatingthe accused. In the present case, PW-1 had no motive to falsely implicateBthe accused. As pointed out earlier, PW-1 seeing her own son beingbrutally attacked, the effect of the incident on the mind of the mothercannot be measured. Being saddened by the death of her son, it musthave taken sometime for PW-1 to come out of her shock and then proceedto police station to lodge the FIR. The delay of two and half hours inClodging the complaint and registration of FIR and the delay in receipt ofthe FIR by the Magistrate was rightly held as not fatal to the prosecutioncase.

19. Learned counsel for the appellant has further submitted thatas per the prosecution case, the motive of the crime is misunderstandingDbetween the families of accused and deceased relating to marriageproposal with respect to the Vijayalakshmi’s sister and deceased. Itwas submitted that the alleged motive is very weak and could not havebeen the reason for causing the murder of deceased Sankar.

20. Where the case of the prosecution is based on the evidenceEof eye witnesses, the existence or non-existence of motive, sufficiencyor insufficiency of motive will not play such major role as in the casewhich is based on circumstantial evidence. If the prosecution is able toprove its case or motive, it will be corroborative piece of evidence; butif the prosecution had not been able to prove its case or motive or themotive suggested is too slender, that will not be ground to doubt theFprosecution case. When other evidence against the accused is clearand cogent as in the present case, absence of motive or insufficiency ofmotive is of no importance.

21. It was further submitted that PWs 2 and 3 have criminalantecedents having murder cases registered against them including theGmurder of Jayalakshmi (A8). It was contended that PWs 1 to 3 havefalsely implicated the accused persons because accused No.1-Balakrishnan’s mother gave complaint against PW-2 in which he wassentenced to undergo four months imprisonment. It was submitted bylearned counsel for the State that PW-2 was sentenced to undergo

imprisonment in the said criminal case after the present incident and notbefore it. Both the courts below recorded concurrent findings of factrejecting the contention of false implication, we find no ground to interferewith 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 servedtheir sentence and were released on remission granted by the State.The appeals preferred by accused No.1, 4 and 6 have been dismissed aswithdrawn by this Court vide order dated 31.10.2018.

23. Evidence of PW-1 is cogent and consistent and her evidenceis amply supported by medical evidence and other evidence. Upon properappreciation of evidence, the trial court has convicted the appellant/accused for causing the murder of deceased Sankar which was affirmedby the High Court. Upon appreciation of evidence, the courts belowrecorded concurrent findings of fact qua appellant-accused that he alongwith other accused caused the murder of deceased Sankar. We do notfind any good ground warranting interference with the verdict ofconviction.

24. In the result, the appeal is dismissed. The appellant-accusedis directed to surrender himself within period of two weeks from today,failing which he shall be taken into custody to serve out the remainingsentence.

Divya Pandey

Appeal dismissed.