Page 1

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL     APPEAL     NO.     1593     OF     2007   

Ponnusamy  …Appellant

Versus

The State of Tamil Nadu  Rep. by its Inspector of Police                      …Respondent    

J     U     D     G     M     E     N     T   

RANJAN     GOGOI,     J.   

This appeal is directed against the judgment and order  

dated 27.10.2006 passed by the High Court of Madras  

whereby the conviction of the accused-appellant under  

sections 302, 304 (Part II) and 307 of the Indian Penal Code  

and the sentences imposed by the learned Trial Court have  

been affirmed.

Page 2

The     relevant     facts   

2. The case of the prosecution, in short, is that one Sekhar  

(deceased No.2) was running a Saw Mill,  taken on lease, in  

which business he was assisted by his brothers  

Radhakrishnan (deceased No.1) and  Rajendran (PW 2). The  

second accused, Munuswamy, who used to work in the Saw  

Mill was taken to task by Sekhar for unauthorized sale of  

some timber from the Saw Mill. The said incident happened on  

3.10.2003. According to the prosecution, accused  

Munuswamy left the place threatening revenge and on  

5.10.2003 he came to the house of  Sekhar alongwith  

Ponnusamy (accused No.1) Mailraj (accused No.3) and  

Madavan (accused No.4).

3. On 5.10.2003 at about 10.00 A.M. the  deceased Sekhar  

had come out of the Saw Mill to go to his house for coffee. His  

house was just opposite the saw mill. At that time accused  

Ponnuswamy assaulted Sekhar with his slippers and  

instigated the other accused to assault him. It is the  

2

Page 3

prosecution case that, on such instigation, accused No. 3  

assaulted  Sekhar on his head with a stick; the accused No. 4  

assaulted the deceased on his forehead with a brick whereas  

the first accused stabbed the deceased with a knife. The  

prosecution has further alleged that on seeing Sekhar being  

assaulted, Radhakrishnan (deceased No.2) came running  

whereafter, the second accused caught hold of him and the  

first accused Ponnusamy stabbed him on his back with the  

knife. Similar assault on PW 2 and PW 3, who had also come  

to the spot, was committed by the first accused Ponnusamy  

with the knife. According to the prosecution all the injured  

persons were profusely bleeding and  the accused  had fled  

away from the place. Thereafter, the injured persons were  

brought to the Government Hospital at Thanjayur. On  

examination,  Radhakrishnan was pronounced dead and  

Sekhar was admitted in the hospital with injuries alongwith  

PWs 2 and 3. Prosecution had also claimed that at about 3  

p.m. of the same day, i.e 05.10.2003 a telephonic information  

with regard to the incident was conveyed by the police outpost  

in the Government Hospital at Thanjayur which was received  

3

Page 4

by PW 16 at the Needamangalam Police Station. The said  

information, according to the prosecution, was entered in the  

general diary of the police station and brought to the notice of  

PW 20, Sivagananavelu, Inspector of Police. Thereafter PW 20  

reached the hospital at about 4-4.30 p.m. and recorded the  

statement of Sekhar (Exh.P.37) on the basis of which the FIR  

(Exh.P.38) was lodged. A requisition was sent to PW 15  

(Judicial Magistrate) to record the statements of  Sekhar and  

PW 2 Rajendran and PW 3 Nagaraj in the Government  

Hospital at Thanjayur. Accordingly, the aforesaid statements  

were recorded which were subsequently marked as Exh.P.22  

and P.23 (dying declaration of deceased Sekhar), Exh.24 and  

Exh. 25 (statement of PW 3 Nagaraja) and Exh.26 and Exh. 27  

(Statement of PW 2 Rajendran). The prosecution had also  

claimed that after registration of the FIR at about 6.30 p.m.,  

PW 20 commenced his investigation by visiting the place of  

occurrence at about 7.45 pm in the course of which he  

prepared a sketch; collected  samples of  blood stained earth  

and sample earth and had also recorded the statements of  

persons acquainted with the offence under the provisions of  

4

Page 5

section 161 of Code of Criminal Procedure, 1973 including the  

statements of Sekhar (deceased No.1), PW 2 Rajendran and  

PW 3 Nagaraj.

4. According to the prosecution, on 05.10.2003 itself  

Sekhar (deceased) , PW 2 and PW 3 were examined by PW 11  

Dr. Balasubramanian who was then working as a Casualty  

Medical Officer in the Government Hospital at Thanjayur. The  

injuries sustained by the aforesaid persons were recorded in  

the Accident Register maintained by the Hospital. On the same  

day Radhakrishnan was also brought before him but by that  

time he was already dead.  Post-mortem of the deceased  

Radhakrishnan was performed by PW 14 Dr. Vijayalakshmi on  

the  next day, i.e, 06.10.2003. It is also the prosecution case  

that in the course of investigation the first accused  

Ponnusamy has made a statement on the basis of which  

certain recoveries were made including the recovery of a knife  

which was seized by Seizure List (Exh.P.8 and subsequently  

exhibited in the trial as material object No.3). Thereafter, at  

the conclusion of the investigation charge sheet was filed  

against all the four accused persons under section 302, 304  

5

Page 6

and 307 of the IPC. The accused persons were tried in the  

Court of the Learned Sessions Judge, Nagapattinam and each  

one of them was found guilty of the offences alleged.  

Aggrieved, the accused persons had filed an appeal before the  

High Court of Madras. The High Court by its judgment and  

order dated 27.10.2006 while maintaining the conviction of  

the accused-appellant (first accused before the learned trial  

court) and the sentences imposed, has set aside the conviction  

and sentence imposed upon the other accused.  Aggrieved, the  

present appeal has been filed by the first accused,  

Ponnuswamy (hereinafter referred to as ‘the accused –  

appellant’ ).  

5. We have heard Shri V. Kanagaraj, learned senior counsel  

for the appellant and Shri B. Balaji, learned counsel appearing  

for the State.  

6. The learned counsel appearing for the appellant has  

argued that though PW 1, who is the wife of the deceased  

Sekhar, was examined as an eye witness to the incident she  

was disbelieved, and rightly,  by the High Court. According to  

the learned counsel the fact that the deceased Sekhar had not  

6

Page 7

mentioned PW 1 as one of the persons present at the place of  

occurrence  though   he    had    clearly mentioned others who  

were allegedly present  would raise a serious  doubt with  

regard to presence of PW 1 at the place of the crime. In so far  

as PW 2 and PW 3 are concerned, learned counsel has  

submitted that though in their depositions the said witnesses  

had named the accused –appellant as the person who had  

stabbed both the deceased and also PWs 2 and 3, in the  

statements of the deceased Sekhar and injured PW 3 Nagaraju  

recorded by the Judicial Magistrate (PW 15) i.e. Exhs. 22-23  

and 24-25, the description of the accused-appellant is either  

by his appearance (short and stout) or by his relationship with  

the second accused, Munuswamy and not by his name. The  

aforesaid lacuna, according to the learned counsel, would go  

to show that neither PW 2 nor PW 3 had identified the  

accused-appellant to be the person who has caused the stab  

injuries. It is submitted that  PW 4 and 5 were declared hostile  

and that PW 6, once again, had not  named the accused-

appellant as the person responsible for the crime but had  

referred to a short and stout person who had caused the stab  

7

Page 8

injuries. Learned counsel has, therefore, submitted that none  

of the eye witnesses who were examined by the prosecution  

are worthy of credence. It has been further contended that  

Exh.37, i.e. the statement of deceased Sekhar recorded by PW  

20, which is the first version of the occurrence, suffers from a  

serious lacuna affecting its credibility. Learned counsel has  

pointed out that PW 20 claims to have reached the Hospital at  

about 4-4.30 p.m. and to have recorded Exh.P.37 at about  

4.30 p.m. On the other hand, according to PW 15, i.e. the  

Judicial Magistrate, he had gone to Ward No. 15 at about 4  

p.m. to record the statements of deceased Sekhar and PW 2  

and PW 3. He was informed by the staff that the patients had  

been taken to the operation theatre. Thereafter PW 15  

proceeded to the operation theatre where he found PW 2 and  

PW 3 in the waiting room. Accordingly, the statements of PW 2  

and PW 3 were recorded. However, according to PW 15, as the  

deceased Sekhar was inside the operation theatre undergoing  

surgery his statement could not be recorded for which reason  

PW 15 had to come back to the hospital once again at about  

9.30 p.m. and it was at that point of time that the statement of  

8

Page 9

the deceased (Ex. P.22 and 23) was recorded. Learned counsel  

has pointed out that the two versions given by the prosecution  

witnesses with regard to the availability of the deceased  

Sekhar for recording of his statement throws considerable  

doubt as to whether PW 20 had actually recorded the  

statement of the deceased Sekhar at 4.30 p.m., particularly,  

when the said statement (Exh.P.37) was not recorded in the  

presence of any other person including the Doctor on duty. In  

the aforesaid circumstances, according to learned counsel,  

Exh.37 is not credit worthy so as to constitute a sound and  

safe basis to determine the culpability of the accused-

appellant. Pointing out the statements of PW 2 and PW 3 (Exh.  

24 & 25; 26 and 27) learned counsel has pointed out that the  

said statements do not implicate the accused-appellant herein,  

in any manner whatsoever. Even the dying declaration of the  

deceased Sekhar (Exh.22 & 23) does not refer to the accused-

appellant by name but describes the culprit as the short and  

stocky co-brother of accused Munuswamy (acquitted accused  

No.2). In these circumstances, according to learned counsel,  

the involvement of the accused-appellant in the crime alleged  

9

Page 10

has not been proved beyond all reasonable doubt so as to  

warrant his conviction under Section 302 of the Indian Penal  

Code.

7. In reply, Shri Balaji, learned counsel for the respondent,  

has contended that even if the evidence of PW 1 is to be  

discarded, there is no reason why the evidence tendered by  

PW 2 and PW 3 should not receive the due consideration of the  

Court. Learned counsel has submitted that the evidence  

tendered by PW 2 and PW 3 contains  a vivid account of the  

events that had occurred including the role played by each of  

the accused in the crime. It is also pointed out that the  

identity of the accused, including the accused-appellant, had  

not been an issue at any stage of the trial. The omission of the  

name of the accused-appellant in the statement of  PW 3  

recorded by the  learned Judicial Magistrate (Ex.26 and 27)  

and in the Dying Declaration of deceased Sekhar (Ex. P.22-23)  

is of no consequence. At no point of time the defence had  

asserted that the identity of  the accused-appellant was in  

doubt. It is further pointed out by the learned counsel for the  

State that though PW 4 had been declared hostile, the said  

10

Page 11

witness had admitted that all the four accused had assembled  

in front of the Saw Mill of the deceased Sekhar at the relevant  

time of  the day of the occurrence. That apart, PW 6 had  

deposed that  the accused-appellant who was was ‘short and  

stocky’, was seen by him stabbing PW 2 Rajendran, PW 3  

Nagaraju and the deceased Radhakrishnan. The evidence of  

PW 6 with regard to the physical description of the accused-

appellant corroborates the description of the accused as  

narrated  in the dying declaration of deceased Sekhar, it is  

contended.

8. We have carefully considered the rival contentions  

advanced on behalf of the parties. We have also perused the  

evidence and other materials on record. The incident occurred  

at about 10 a.m. on 5.10.2003 in front of the Saw Mill of the  

deceased Sekhar. From the evidence on record it is clear that  

the house of the deceased was just across the Saw Mill and  

the incident occurred when the deceased was going for coffee  

to his house. Having regard to the place where the occurrence  

took place, the presence of PW 1, who is the wife of the  

deceased Sekhar was, but, natural. Merely because her name  

11

Page 12

was not mentioned by the deceased in his statement  

(Exh.P.37), though the names of the others who were present  

were so mentioned, according to us, cannot be a reasonable  

basis to conclude that PW 1 is not an eye witness to the  

occurrence. We are, therefore, inclined to take into account  

the evidence of PW 1 which,  properly read, gives a graphic  

account of involvement of the accused-appellant in the crime  

in question and corroborates the evidence of PW 2 and PW 3,  

the other eye witnesses examined by the prosecution.  In so  

far as the lacunae in the evidence of PW 2 and PW 3, as  

pointed out on behalf of the accused is concerned we are of  

the view that in  a situation where the identity of the accused-

appellant was not an issue raised by the defence the evidence  

of the said witnesses cannot be discarded merely because in  

their earlier statements, PW 2 and PW 3 had not specifically  

referred to the accused-appellant by his name. That apart, the  

part of the evidence of PW 4 which can acted upon by the  

Court lends a fair amount of support to the prosecution case,  

namely, that the accused-appellant along with the other  

acquitted accused had gathered at the place of occurrence at  

12

Page 13

the relevant time of the day of occurrence.  The testimony of  

PW 6 that he had seen the accused-appellant, who was short  

and stocky, stabbing PW 2 Rajendran, PW 3 Nagaraju  and the  

deceased Radhakrishnan are additional pieces of evidence  

which gives credence to the prosecution case.

9. The alleged discrepancy in the prosecution evidence (PW  

15 and PW 20) with regard to the availability of the deceased  

Sekar for recording of his statement at 4-4.30 p.m. of the day  

of occurrence, as pointed out by the learned counsel for the  

appellant, in our considered view, does not present any  

difficulty of resolution. The evidence on record shows that  

after the two deceased persons and PW 2 and PW 3 were  

brought to the Government hospital an information was sent  

from the police out post in the  Hospital at Thanjayur to the  

Needamangalam police station which was received at about 3  

p.m. Thereafter the said information was entered in the  

general diary of the police station and placed before PW 20  

who came to the hospital and recorded the statement of  

deceased Sekhar at about 4.30 p.m. On the other hand, PW  

15, the Judicial Magistrate, who was already in the hospital  

13

Page 14

recording the dying declaration of another person, was  

informed by the duty medical officer at about 3.30 p.m. to  

record the dying declaration of deceased Sekhar and PWs 2  

and 3. Thereafter, according to PW 15, he went to the ward  

where the injured were admitted but he was told that the  

patients have been taken to the operation theatre. He,  

therefore, went to the operation theatre where he found PWs 2  

and 3 in the waiting room. At that time the deceased Sekhar  

was inside the operation theatre undergoing surgery. The  

Judicial Magistrate recorded the statements of PWs 2 and 3  

and came back later to record the statement (dying  

declaration) of deceased Sekhar at about 9.30 p.m. There is  

certainly some amount of overlapping  in the time mentioned  

by the two prosecution witnesses, i.e. PWs 15 and 20.  

However, reference to such time must be understood having  

regard to the normal course of human life, namely, that such  

reference is largely by approximation and not strictly by the  

hour of the clock. So viewed we do not find any inconsistency  

in the above part of the prosecution case. We would like to  

add, in this regard, that even if Exh.P.37 is to be discarded,  

14

Page 15

the prosecution case would still stand established on the basis  

of the evidence of PWs 1, 2 and 3 read alongwith the evidence  

of PWs 4 and 6 and the dying declaration of deceased Sekhar  

recorded by PW 15  which was duly certified by the Doctor (PW  

13) as having been made by the deceased in his presence in a  

fit mental condition.  

10. For the aforesaid reasons, we do not consider the present  

to be  a fit case for any interference. Accordingly, we dismiss  

the appeal and affirm the judgment of the High Court.  

...…………………………J. [P. SATHASIVAM]

.........……………………J. [RANJAN GOGOI]

New Delhi, September  20, 2012.      

15

Page 16

16

Page 17