PONNUSAMY Vs STATE OF T.NADU REP.BY INSP.OF POLICE
Bench: P. SATHASIVAM,RANJAN GOGOI
Case number: Crl.A. No.-001593-001593 / 2007
Diary number: 2589 / 2007
Advocates: S. THANANJAYAN Vs
B. BALAJI
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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.
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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,
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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.
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