In Re Dhanabal and Others, Accused v. . — 1975 DIGILAW 422 (MAD)

Judgment :- VARADARAJAN, J. The three appellants, Dhanabal, Ramanujam and Muthuthamizharasan, accused 1 to 3 respectively were tried by the learned Sessions Judge of South Arcot Division in S.C. No. 26 of 1974, A-1 for the offence of murder of his sister Rasayal at about 1.30 p.m. on 5-12-1973 at Thulukkamanyam in Komaratchi village limits near Keelakarai by chopping off her head with a veecharuval and the other two accused for the murder of Rasayal in furtherance of common intention or alternatively for abetment of the murder of Rasayal and found guilty, A-1 under Section 302, I.P.C. and the other two accused under Section 302 read with S. 109, I.P.C. and sentenced to imprisonment for life. 2. The first accused Dhanabal is the elder brother and accused 2 and 3 are the younger brothers of Rasayal, the deceased victim in this case. The third accused is employed as a Tamil Pandit in Panchayappa's High School, Chidambaram and he used to visit Keelakkarai village at least once in a month, P.W. 9 is employed as the Head Master of that High School. The other accused 1 and 2 are residents of Keelakkarai village where Rasayal was living. Rasayal's husband Raju Padayachi died in or about the year 1962 leaving three daughters and two sons of whom Lakshmi alone is a major. After the death of her husband, Rasayal gave her eldest daughter Lakshmi in marriage to the second accused. Rasayal owns about five cawnies of land called Thulukka Maniyam in Keelakkarai village. She had executed the general power of attorney Ex. P-15 dated 31-8-1970 in favour of the second accused giving him absolute powers of management of her properties and also to function as the guardian of her minor children. She began to lead an immoral life after the death of her husband and was having illegal intimacy with one Krishnamoorthi and Ramdoss. This was resented by the accused who often rebuked her for her conduct and there were frequent quarrels between the accused and Rasayal. Rasayal herself began to cultivate the lands after the execution of the power of attorney Ex. P-15. The feelings between the accused and Rasayal thereafter got more embittered and the accused were threatening to do away with her some time or other. Rasayal had sent the petitions Ex. Rasayal herself began to cultivate the lands after the execution of the power of attorney Ex. P-15. The feelings between the accused and Rasayal thereafter got more embittered and the accused were threatening to do away with her some time or other. Rasayal had sent the petitions Ex. P-10 series dated 17-11-1973 to the Superintendent of Police, Cuddalore, Deputy Superintendent of Police, Chidambaram and Inspector of Police, Kattummannarkudi alleging that her brothers were abusing her and had beaten her several times saying that she was an immoral woman and that the first accused showed her a big knife and threatened to do away with her with that knife one day or other. She had prayed in those petitions for police protection. The Sub-Inspector of Police, Komaratchi P.W. 13 received these petitions on 24-11-1973 and sent for the accused and warned them. 3. The Panchayappa's High School, Chidambaram in which the third accused is employed as Tamil pandit had been closed from 4-12-1973 to 9-12-1973 under orders of the Collector of South Arcot. Whenever the school declares holidays normally the teachers do not attend the institution on those days and no special classes were conducted in the school in those days. 4. On 5-12-1973 when Rasayal and her farm servant P.W. 4 were working in her fields removing weeds, the accused went there at about 1.30 p.m. from several directions, A-1 armed with a veecharuval from the east, A-2 armed with a spade from the south and A-3 from the north-west. On seeing the accused rushing towards her, Rasayal began to run towards the Kalungadi channel running adjacent to her fields. Then A-3 instigated A-1 to cut her saying that she was leading an immoral life and should not be left. Thereupon, the first accused cut Rasayal on the right side of her neck with the veecharuval and she fell down in the channel, raising an alarm. A-2 stated that she should not be left at that and that her head should be severed from her body, she being an immoral woman. Thereupon, the first accused caught hold of her hair by the left hand and cut her neck with the veecharuval, severing the head from the trunk. A-3 also uttered similar instigating words before the first accused cut the neck of the deceased completely. Thereupon, the first accused caught hold of her hair by the left hand and cut her neck with the veecharuval, severing the head from the trunk. A-3 also uttered similar instigating words before the first accused cut the neck of the deceased completely. Ramalingam P.W. 1 and Ramakrishnan P.W. 2 who were returning at that time after spraying insecticides in the fields of P.W. 1 saw the occurrence. Chelladurai P.W. 3 who was coming to the field of Rasayal with food for P.W. 4 also saw the occurrence. Nagappan P.W. 5 who was going towards the scene of occurrence to meet Ramakrishnan P.W. 2 for getting the arrears of wages also saw, the occurrence. The accused left the scene of occurrence after committing the murder, A-1 taking away the veecharuval with him and A-2 leaving the spade near the feet of the deceased Rasayal. P.W. 4 refused to take the food brought by P.W. 3 and ran towards east to Komaratchi police station. 5. P.W. 4 gave a report Ex. P-7 to the Sub-Inspector of Police, Komaratchi, P.W. 13 at 3 p.m. on the same day. P.W. 13 recorded the narration of P.W. 4 in Ex. P-7 and read it over to him and obtained his signature after P.W. 4 admitted the contents to be correct. He registered a case under Section 302, I.P.C. and sent express reports to the concerned authorities. He took up investigation and proceeded to the scene of occurrence at 3.30 p.m. and found the dead body of Rasayal lying in the channel with the head severed from the trunk and the spade M.O. 7 lying near the feet of the deceased Rasayal. He prepared the observation mahazar Ex. P-11 and recovered the jewels and the blood stained jacket M.O. 1 of the deceased and blood-stained earth M.O. 8. He held inquest over the dead body of Rasayal from 3.30 p.m. to 6.30 p.m. and examined P.Ws. 1 to 4 and another during the inquest. Exs. P-22 is the inquest report. Subsequently he arranged for the body being taken to the Government Hospital, Chindambaram for post mortem examination. 6. The autopsy on the body of the deceased Rasayal was conducted by the Medical Officer, Government Hospital Chindambaram P.W. 12 at 11 a.m. on 6-12-1973. P.W. 12 found that the body and the head were separate. Exs. P-22 is the inquest report. Subsequently he arranged for the body being taken to the Government Hospital, Chindambaram for post mortem examination. 6. The autopsy on the body of the deceased Rasayal was conducted by the Medical Officer, Government Hospital Chindambaram P.W. 12 at 11 a.m. on 6-12-1973. P.W. 12 found that the body and the head were separate. He found a hemispherical contusion red in colour 1"in diameter on the left side of forehead 1" above the middle of left eyebrow, a linear abrasion on the left hand dorsal aspect 4 "long starting from the base of left index finger to left wrist and an incised wound running round the neck on th right side i.e. 2"below the right ear lobule on the left, 3" below the left mastoid process on the front, 2"above the supra sternal notch on the back and 2" above the seventh cervical spine. He found the cut portion of the head and the cut portion of the trunk to fit in correctly. The thyroid cartilage and the pharynx were cut and the fifth cervical vertebra had been cut into two pieces. He was of the opinion that the deceased would appear to have died of severance of the head from the trunk at about 1.30 p.m. on 5-12-1973 that the severance of the head from the body is possible by cutting the neck completely with a veecharuval and that the injury was necessarily fatal. Ex. P-21 is the post-mortem certificate. 7. The third accused surrendered on 10-12-1973 while accused 1 and 2 surrendered on 11-12-1973 before the Sub Magistrate, Chindambaram. P.W. 13 sent requisition to the Sub Magistrate's Court for sending the properties to the chemical examiner. The chemical examiner detected blood on M.O. 1 the jacket of the deceased, but not on M.O. 8. The serologist detected human blood on M.O. 1. On a requisition from the police the Sub Magistrate, Portonovo recorded statements of P.Ws. 1 to 5 under Section 164 of the Code of Criminal Procedure. P.W. 4 turned hostile to the prosecution even in the committal Court and the evidence of P.Ws. 1 to 3 and 5 recorded by the committing Magistrate has been admitted in evidence as Exs. P-2, P-4, P-6 and P-9 respectively under Section 288 of the Code of Criminal Procedure, after the witnesses had been treated as hostile to the prosecution. 8. 1 to 3 and 5 recorded by the committing Magistrate has been admitted in evidence as Exs. P-2, P-4, P-6 and P-9 respectively under Section 288 of the Code of Criminal Procedure, after the witnesses had been treated as hostile to the prosecution. 8. When questioned under Section 342, Criminal P.C. all the accused denied any complicity in the crime and stated that the prosecution witnesses have deposed against them on account of ill-feeling. They did not examine any witness on their behalf. 9. The evidence of the Medical Officer P.W. 12 who conducted autopsy on the body of the deceased at 11 a.m. on 6-12-1973 shows that the head of the deceased had been severed from the trunks by cut with veecharuval at about 1.30 p.m. on 5-12-1973 and that the injury is necessarily fatal. No doubt there is no explanation in the evidence as to how the deceased came by a hemispherical contusion on the left side of the forehead and a linear abrasion on the left hand dorsal aspect. There is evidence to show that after receiving the first cut from the first accused the deceased fell down. Therefore it is probable that the contusion and abrasion had been sustained while the deceased fell on the ground after receiving the cut. The evidence of P.W. 12 establishes that the deceased had died of homicidal injuries sustained at 1.30 p.m. on 5-12-1973. 10. The evidence of the Head Master, Pachayappa's High School, Chidambaram. P.W. 9 in which the third accused is employed as a Tamil Pandit shows that the High School had declared holidays from 4-12-1973 to 9-12-1973 and that no special classes are held and the teachers do not normally attend school on those days when the school had declared holidays. His evidence establishes that it was not necessary for the third accused to remain at Chindambaram on 5-12-1973. The evidence of P.W. 1 establishes that the third accused used to visit Keelakkarai village at least once in a month. 11. The case of the prosecution against the accused rests mainly on the evidence of P.Ws. His evidence establishes that it was not necessary for the third accused to remain at Chindambaram on 5-12-1973. The evidence of P.W. 1 establishes that the third accused used to visit Keelakkarai village at least once in a month. 11. The case of the prosecution against the accused rests mainly on the evidence of P.Ws. 1 to 3 and 5 given before the committing Court and admitted in evidence under Section 288 of the Code of Criminal Procedure after those witnesses had been treated as hostile to the prosecution and their evidence before the committing Court had been read over to them and they stated that they had deposed like that before the committing Court but added that they had done so on account of coercion by the police. P.W. 1 has deposed about the relationship of the accused and the deceased Rasayal and has stated that after the death of Rasayal's husband about 8 years prior to the occurrence leaving five children of whom one daughter is married to the second accused, Rasayal began to lead an immoral life and was having illegal intimacy with one Krishnamoorthi and that the accused used to question her about her immoral conduct and that there was 'thagarar' between the accused on the one hand and Rasayal on the other. He has also stated that the deceased Rasayal began to cultivate her lands by herself. He has further stated that he went along which P.W. 2 at about 10 a.m. On 5-12-1973 for spraying insecticides for the crops in his land and returned at about 11 or 11-30 a.m. and that he saw a crowd of people going to the scene of occurrence at 3.00 p.m. and he also went there and found the deceased having been killed by someone in Thulikkamaniyam and the trunk and the head lying separately in Kalungadi channel. Having regard to his statement Ex. P-1 recorded under Section 164, Criminal P.C. and his evidence that he had returned from the field after spraying insecticides at 11 or 11.30 p.m. he was treated hostile to the prosecution and had been cross-examined and his evidence before the lower Court Ex. P-2 had been read over to him and admitted in evidence under Section 288, Criminal P.C. as already stated. P-2 had been read over to him and admitted in evidence under Section 288, Criminal P.C. as already stated. P.W. 1 has not stated in his evidence before the committing Court that the third accused instigated the first accused to cut the deceased. The evidence of the other witnesses P.Ws. 2, 3 and 5 before the committing Court is to the same effect as that of P.W. 1 before that Court, with the difference that they have said in their evidence that the third accused also instigated the first accused to cut the deceased Rasayal. It may be stated in this connection that P.W. 4 has practically admitted that Ex. P-7 had been recorded by P.W. 13 to his dictation, though in another portion of his evidence he has attempted to say that P.W. 13 had not recorded Ext. P-7 correctly. We are satisfied from the evidence of P.W. 13 that Ex. P-7 has been recorded to the narration of P.W. 4 by P.W. 13 correctly, and P.W. 13 had obtained the signature of P.W. 4 in Ex. P-7 after the contents of Ex. P-7 had been admitted by P.W. 4 to be correct. It may be stated here that P.W. 4 has not stated in Exhibit P-7 that the third accused instigated the first accused to cut the deceased. The evidence of P.Ws. 1, 2, 3 and 5 before the committing Court establishes satisfactorily that the first accused cut the deceased Rasayal on the right side of her neck, that the second accused instigated the first accused to cut her saying that she was an immoral woman and that the first accused thereafter caught hold of the hair of Rasayal who had fallen on the ground after receiving the first cut and cut her neck completely and severed the head from the trunk and left the place along with the other accused, taking away the veecharuval with him. The evidence also establishes that the second accused had left the spade M.O. 7 behind at the feet of the deceased Rasayal. Though M.O. 8 had been recovered by P.W. 13 as bloodstained earth from the scene of occurrence it has not been found to have been stained with blood. But there is evidence to show that water was flowing in the channel in which the body of Rasayal had been found. Though M.O. 8 had been recovered by P.W. 13 as bloodstained earth from the scene of occurrence it has not been found to have been stained with blood. But there is evidence to show that water was flowing in the channel in which the body of Rasayal had been found. However, we are satisfied that the deceased had been done to death only in the Kalungadi channel situate near the land called Thulukkanmanyam in Keelakkarai village. Therefore, there can be no doubt regarding the scene of occurrence in this area. 12. Learned counsel for the appellants contended that the evidence regarding the time of occurrence is not satisfactory. P.W. 1 has stated in his statement recorded under Section 164, Criminal P.C., Ex. P-1, that the deceased had taken her food at about 10 or 11 a.m. But the Medical Officer P.W. 12 who conducted autopsy on the body of the deceased found 10 ounces of cooked rice in the stomach and he has stated that it is possible that the deceased died within 15 minutes or half an hour after taking rice food. On the basis of this evidence the learned counsel for the appellants contended that the deceased should have died at about 10.30 or 11.30 a.m. and that the evidence of the prosecution witnesses that the occurrence took place at 1.30 p.m. is not acceptable. It is not possible to expect P.W. 1 to have stated the time at which the deceased took her meal in the field correctly. P.W. 4 has mentioned the time of the occurrence as about 1.30 p.m. on 5-12-1973 in Ex. P-7. We are therefore satisfied that the occurrence in this case had taken place at 1.30 p.m. as opined by the Medical Officer, P.W. 12. 13. Learned counsel for the appellant also contended that the place of occurrence has not been established satisfactorily by the prosecution having regard to the fact that no blood has been detected on M.O. 8. We have dealt with this aspect already and found that no blood could possibly be detected on M.O. 8 having regard to the fact that water to a height of 10 inches was flowing in the channel in which the occurrence had taken place. 14. Learned counsel for the appellants next contended that the evidence of P.Ws. We have dealt with this aspect already and found that no blood could possibly be detected on M.O. 8 having regard to the fact that water to a height of 10 inches was flowing in the channel in which the occurrence had taken place. 14. Learned counsel for the appellants next contended that the evidence of P.Ws. 1, 2, 3 and 5 recorded by the committing Magistrate have not been properly proved, that those statements are inadmissible in evidence having regard to the fact that they had been only read in fully to the witnesses and had not been put to them passage by passage as required by Section 145 of the Evidence Act and that corroboration of these statements is necessary before the Court could convict the appellants on the basis of the same. 15. We find from the record that when the evidence tendered by the witnesses, P.Ws. 2, 3 and 5 before the committing Court had been read over to them by the learned Public Prosecutor in the Sessions Court, they were admitted by the respective witnesses to be their evidence recorded by the committing Court and they had only added that they gave such evidence on account of coercion by the police. We therefore find that the evidence of these witnesses recorded by the committing Court had been proved satisfactorily. 16. Learned counsel for the appellants relied upon some decisions in support of his contention that the evidence recorded by the committing Court must be put passage by passage and the explanation of the witnesses obtained as required by Section 145 of the Evidence Act before they are admitted in evidence under Section 288, Criminal P.C. The first decision relied upon by the learned is that of the Supreme Court in Tara Singh v. State, (1951 Mad WN (Cri) 225) = 52 CrLJ 1491) (SC). In that case, two of the three eye-witnesses whose depositions before the committing Magistrate were brought on record under Section 288, Criminal P.C. were not confronted with their former statements in the manner required by Section 145 of the Evidence Act and all that happened it that they were asked something about their previous statements and they replied that they were made under coercion. Bose, J. delivering the judgment for the Bench in that case has observed :" * Now, it is evident that one of the main purposes of using the previous statements was to contradict and displace the evidence given before the Sessions Court because until that evidence was contradicted and displaced, there was no room in this case for permitting the previous statements to be brought on record and used under Section 288. Therefore, as these statements were not put to these witnesses and as their attention was not drawn to them in the manner required by Section 145 of the Evidence Act, they were not admissible in evidence ......... in the case of Naridar Singh, his previous statement does seems to have been put to him in the proper way. The particular portions on which the prosecution desired to contradict him were read out and he was afforded an opportunity of explaining them. So, the inadmissibility extends only to the other two witnesses. "There is nothing in this judgment to show that the statements of the other two witnesses whose evidence before the committing Court had been held by the Supreme Court to be inadmissible had been read to them by the Court or the Public Prosecutor as in the present case. 17. The next decision relied upon by the learned Counsel for the appellants is of the Supreme Court in Bhagwan Singh v. State of Punjab, (1952 Mad WN (Cri) 157) = The decision is rendered by Fazl Ali and Bose, JJ. who are parties to the earlier decision in Tara Singh v. State, (1951 Mad WN (Cr) 225) = 52 CrLJ 1491). Bose, J. who delivered the judgment in this case also for the Bench has observed :" * Resort to Section 145 of the Evidence Act would only be necessary if the witness denies that he made the former statement. In that event, it would be necessary to prove that he did, not if the former statement was reduced to writing, then Section 145 required that his attention must be drawn to those parts which are to be used for contradiction. But that position does not arise when the witness admits the former statement. In such a case all that is necessary is to look to the former statement of which no further proof is necessary because of the admission that it was made. But that position does not arise when the witness admits the former statement. In such a case all that is necessary is to look to the former statement of which no further proof is necessary because of the admission that it was made. Of course that statement cannot be used as substantive evidence unless Section 288 of the Criminal P.C. is called in aid ......... There can be no hard and fast rule. All that is required is that the witness must be treated fairly and be afforded a reasonable opportunity of explaining the contradictions after his attention has been drawn to them in a fair and reasonable manner ......... The matter is one of substance and not of mere form. "18. The other decision relied upon by the learned counsel for the appellants is the decision in Kumaraswami Naicker v State, (1963 Mad WN (Cr) 69) where the learned Judges have observed at p. 71 thus :" * The difficulty we find in this case is that it is not clear, from the judgment of the learned Sessions Judge, that he has proceeded under Section 288, Criminal P.C. for rejecting the testimony of these witnesses in the Sessions Court and accepting their evidence in the committal Court instead. If he had really intended to do so, he should have complied with the necessary formalilties. Those formalities, briefly stated, required the whole of the evidence of the witnesses given in the committal Court to be filed, so that the Court could come to a conclusion whether it could exercise its discretion and treat the earlier evidence given in the committal Court as evidence for all purpose at the Sessions trial. Nest, an earlier line of decisions had taken a certain view about the use of Section 145 of the Evidence Act to a case to which Section 288, Criminal P.C. has to be applied. It is not necessary to state that view, as the position has now been made clear by the decision of the Supreme Court in Tara Singh v. State, (1951 Mad WN (Cr) 225) = 52 CrLJ 1491), that the evidence in the committal Court cannot be used in the Sessions trial unless the witness is confronted with his previous statement as required by Section 145 of the Indian Evidence Act. This means that after the whole of the deposition in the committal Court has been marked in evidence, it will be necessary to draw the attention of the witness to those portions of the deposition in the Sessions Court which are in conflict with the earlier statement, and in regard to which the earlier statements are proposed to be relied upon by the prosecution. "19. Yet another decision relied on by the learned counsel for the appellants is the decision of the Bench of the Mysore High Court in B. Ramappa Naik v. State of Mysore, (1963 Mad LJ (Cr) 523) where it is observed as follows :" * Strangely enough when P.Ws. 1, 2, 6 and 7 and 14 were cross-examined in the trial Court by the learned Public Prosecutor he did not contradict those witnesses by the evidence given by them in the Committal Court. Undoubtedly those witnesses have resiled from the evidence given by them in the committal Court. But unfortuntely the attention of those witnesses was not drawn to the depositions given by them in the enquiry Court, as required by Section 145 of the Evidence Act. Hence those witnesses did not have any opportunity to explain the contradictions appearing in their depositions given in the two Courts ......... This Court had occasions to emphasise the importance of the rule laid down in Tara Singh's case.