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2005 DIGILAW 1350 (MAD)

Khaja Hussain & Others v. The Inspector of Police

2005-08-12

M.KARPAGAVINAYAGAM, S.SARDAR ZACKRIA HUSSAIN

body2005
Judgment :- M.Karpagavinayagam, J. Aggrieved by the judgment of the trial Court, convicting the appellants/accused 1 to 4 for the offences under Section 302 read with 34 IPC and sentencing them to undergo life imprisonment and also to pay a fine of Rs.1,000/- each, the appellants have filed this appeal. 2. Originally, the appellants were tried for the offences of having committed murder of one Murthy and attempting to commit the murder of P.W.2 Murugan under Sections 302 and 307 read with 34 IPC respectively. 3. The trial Court acquitted the appellants/accused in respect of the charge under Section 307 read with 34 IPC and convicted them for the offence under Section 302 read with 34 IPC. 4. The short facts would be summarized as follows: "(a) Appellants/accused are the Muslims and the victims are the Hindus. Since one Muslim fundamentalist, by name, Palani Baba was brutally murdered by Hindu fundamentalist at Pollachi in Coimbatore District, there was a continuous hatred between Muslims and Hindus, which resulted in the incidents of rioting and setting fire to Hindu's properties. Both the accused and the deceased were residing at Erimedu village. 500 Muslim families and 200 Hindu families were residing in that village. Having hatred over the Hindus, the accused persons, who belonged to Muslim community, compelled the Hindu families in Erimedu to vacate the area and go away. One of the families threatened by the accused was of the deceased Murthy. (b) P.W.1, Murugan, is the elder brother; P.W.2, another Murugan, is a friend and P.W.3 Rengaswamy and P.W.4 Ammini are father and mother of the deceased Murthy. (c) One day prior to the date of occurrence, the accused persons met Murthy and threatened him to vacate his house and leave the area without any delay. Murthy informed the matter to his elder brother P.W.1 and parents. When P.W.1 asked the deceased to identify those persons, the deceased took him to the area, in which the accused were residing and pointed them out. P.W.1, instead of questioning the accused, decided to inform the Jamath, in order to avoid further quarrel with the accused and came back home. (d) The unfortunate occurrence took place on 02.09.1997 at about 04.30 p.m. Murthy, the deceased, after finishing his work, was coming back home. On the way, he met his brother P.W.1, who was selling fruits in the street. (d) The unfortunate occurrence took place on 02.09.1997 at about 04.30 p.m. Murthy, the deceased, after finishing his work, was coming back home. On the way, he met his brother P.W.1, who was selling fruits in the street. After closing the business, P.W.1 also left the place for going home along with the deceased. (e) On seeing the deceased, all the four accused, who were standing near the road, waylaid and attacked him, causing several injuries all over the body. P.W.1, out of fear, ran away. (f) At that time, P.W.2, Murugan, friend of the deceased, who happened to go to that place, was also attacked by all the four accused; as a result of which, he sustained injuries and ran away from the scene. (g) P.W.1, who ran away and concealed himself behind a palm tree, came to the spot and noticed his younger brother dead, lying in a pool of blood. P.W.1 went to his parents and informed them. Then, P.W.1 and his father P.W.3 went to the police station and gave a complaint Ex.P-1 to P.W.12, Head Constable, who, in turn, registered a case for the offences under Sections 302 and 307 read with 34 IPC. (h) In the meantime, P.W.14, Sub-Inspector of Police, on noticing P.W.2, lying down with injuries near Anna Nagar Junction, took him in a car and admitted him in hospital. (i) P.W.7, doctor, gave treatment to P.W.2. Since he was in a serious condition, an operation was conducted on him. (j) P.W.17, Inspector of Police, took up investigation, came to the scene; prepared observation mahazar Ex.P-17 and drew a rough sketch Ex.P-27. (k) Inquest was held on 02.09.1997 at about 09.30 p.m. P.Ws.1,3 and 4 were examined during the course of inquest. Ex.P-28 is the inquest report. (l) The dead body was sent for post-mortem. P.W.8, doctor, conducted post-mortem on 03.09.1997 at about 10.15 a.m. and issued post-mortem certificate, Ex.P-11. On noticing 25 injuries, he gave opinion that the deceased would appear to have died of shock and haemorrhage, as a result of multiple injuries. (m) Then, the next investigating officer took up further investigation. In the meantime, he received information that all the accused surrendered before the Court on 08.09.1997. (n) On 15.09.1997, the investigating officer filed an application for custody of the accused. Accordingly, on 17.09.1997, police custody of A-1 to A-4 was granted. (m) Then, the next investigating officer took up further investigation. In the meantime, he received information that all the accused surrendered before the Court on 08.09.1997. (n) On 15.09.1997, the investigating officer filed an application for custody of the accused. Accordingly, on 17.09.1997, police custody of A-1 to A-4 was granted. On 18.09.1997, on the confession of A-1, aruval was recovered; in pursuance of the confession of A-2, a knife was recovered; similarly from A-3 and A-4 two more knives were recovered. Then, all the accused were sent for judicial custody. (o) An application was filed on 23.09.1997, requesting for identification parade, to identify the accused by the witnesses P.Ws.1 and 2. Accordingly, the same ordered on 24.09.1997. P.W.2 did not turn up for the parade; however, P.W.1 came and identified all the four accused. The material objects were sent for chemical examination. (p) After completion of the investigation, charge sheet was filed against the accused for the offences under Sections 302 and 307 read with 34 IPC." 5. On the side of prosecution, P.Ws.1 to 20 were examined; Exs.P-1 to P-29 were filed and M.Os.1 to 11 were marked. 6. When the accused were questioned under Section 313 Cr.P.C., they denied their complicity in the crime in question. 7. The trial Court, having analysed the evidence available on record, found the accused 1 to 4 guilty of the offence under Section 302 read with 34 IPC and sentenced them thereunder. Hence, this appeal. 8. Mr.A.Sirajudeen, learned counsel for the appellants, would take us through the entire evidence and elaborately contend, pointing out various irregularities, committed by the investigating agency during the course of investigation, and also the infirmities found in the other materials, collected by the prosecution. His submissions are two fold: (i) the entire case would depend upon the evidence of a single eye-witness, namely, P.W.1, who is the brother of the deceased, and, as such, he is the interested witness. He is also inimical against the accused persons, who have earlier threatened the deceased family to vacate the area and go way. Therefore, his evidence cannot be relied upon, especially when he has made a lot of improvements, while deposing the evidence on various aspects, which have not been mentioned in Ex.P-1 and in the statement made to the police. He is also inimical against the accused persons, who have earlier threatened the deceased family to vacate the area and go way. Therefore, his evidence cannot be relied upon, especially when he has made a lot of improvements, while deposing the evidence on various aspects, which have not been mentioned in Ex.P-1 and in the statement made to the police. Further, the conduct of P.W.1, who is the sole eye witness, in not reacting while the deceased was attacked by the four accused with dangerous weapons and, in view of the fact that he has failed to make any effort to prevent the accused from further attacking the deceased, is artificial. Therefore, the tainted evidence of P.W.1 cannot be the basis for conviction, particularly when there is no corroboration to his statement. (ii) The occurrence took place on 02.09.1997. The accused surrendered on 08.09.1997, but the identification parade was conducted only on 06.11.1997 i.e., about two months later. Therefore, the identification parade, which was belatedly conducted, cannot be taken as a ground to believe the case of the prosecution. Further, all the accused were shown to P.W.1 earlier in the Police Station and in the Court, while they were remanded. As such, the identification parade was a farce. 9. On the basis of these two main points, Mr.A.Sirajudeen, learned counsel for the appellants, would argue that the case of the prosecution would bristle with the incurable infirmities and, as such, the accused persons are liable to be acquitted. He would cite the following authorities, to substantiate his pleas: (i) 1976 CRL.L.J.496 (BADRI v. STATE OF RAJASTHAN); (ii) AIR 1987 SUPREME COURT 1222 (SUBASH AND SHIV SHANKAR v. STATE OF U.P.); (iii) 1982 (3) SUPREME COURT CASES 368 (SONI v. STATE OF UTTAR PRADESH); (iv) 1998 CRL.L.J.1588 (RAJVEER v. STATE OF U.P.) (v) III (2002) CCR 85 (SC) (TORAN SINGH v. STATE OF MADHYA PRADESH); (vi) III (2002) CCR 204 (DB) (DHOBULU SANTA AND BASU SANTA v. STATE OF ORISSA); and (vii) III (2003) CCR 250 (SC) (MOUSAM SINGHA ROY & ORS. v. STATE OF WEST BENGAL). 10. In reply to the above submissions, Mr.E.Raja, learned Additional Public Prosecutor, would submit that the evidence of P.W.1 is natural, which has been corroborated by P.Ws.3 and 4, parents of the deceased, and also by the medical evidence. There are materials to show that motive aspect has been clearly established. v. STATE OF WEST BENGAL). 10. In reply to the above submissions, Mr.E.Raja, learned Additional Public Prosecutor, would submit that the evidence of P.W.1 is natural, which has been corroborated by P.Ws.3 and 4, parents of the deceased, and also by the medical evidence. There are materials to show that motive aspect has been clearly established. Further, P.W.16, Judicial Magistrate, has received requisition even on 23.09.1997 and, due to administrative reasons, the identification parade was conducted on 06.11.1997 and, in that parade, P.W.1 correctly identified all the four accused persons. The so called improvements pointed out by the counsel for the appellants are not vital and will not affect the core of the prosecution. Consequently, the decision rendered by the trial Court is perfectly justified. He would cite the following authorities : (i) AIR 1957 SUPREME COURT 614 (VADIVELU THEVAR v. STATE OF MADRAS); (ii) 1997 (2) LAW WEEKLY (CRI) 532 (VENKATESAN v. STATE,BY INSPECTOR OF POLICE, TIRUPORUR); (iii) 2001 SUPREME COURT CASES (CRI) 553 (DAYA SINGH v. STATE OF HARYANA); (iv) 2003 SUPREME COURT CASES (CRI) 770 (ANIL KUMAR v. STATE OF U.P.); (v) 2004 SUPREME COURT CASES (CRI) 1055 ( SUNIL KUMAR v. STATE GOVT. OF NCT OF DELHI); (vi) 2005 SUPREME COURT CASES (CRI) 582 (STATE OF U.P. v. DEVENDRA SINGH); and (vii) 2005 SUPREME COURT CASES (CRI) 834 (STATE OF PUNJAB v. HARDAM SINGH AND OTHERS). 11. We have carefully considered the submissions made on either side. 12. According to the prosecution, the accused/appellants, who are Muslims, threatened the deceased and his family, being Hindus, to vacate the area, in which the Muslims are in majority, and go away from the place, as they had developed hatred towards Hindus, in the light of the incident that took place at Pollachi, in which one Muslim fundamentalist, by name, Palani Baba was brutally murdered by a Hindu fundamentalist. Despite the threat, the deceased had not cared to vacate the area. Therefore, on 02.09.1997 at about 04.30 p.m., when the deceased, after finishing his work, was coming back home, accompanied by P.W.1, his elder brother, all the four accused surrounded the deceased and made an attack on him, causing several injuries all over the body. P.W.2, who is a friend of the deceased, came in that way and he was also attacked. P.W.2, on receipt of injuries, ran away up to Pollachi Road and fell down. P.W.2, who is a friend of the deceased, came in that way and he was also attacked. P.W.2, on receipt of injuries, ran away up to Pollachi Road and fell down. On noticing P.W.2 lying down with injuries, P.W.14, Sub-Inspector of Police, took him to the hospital. P.W.7, doctor, gave treatment to P.W.2. In the meantime, P.W.1, on noticing that the deceased died on the spot, informed P.W.3, father, and P.W.4, mother, about the incident. Thereafter, P.Ws.1 and 3 went to the Police Station and gave a complaint to P.W.12, Head Constable. A case was registered for the offences under Sections 302 and 307 read with 34 IPC. P.W.17, Inspector of Police, took up the case and conducted investigation. 13. According to P.W.1, on noticing that the deceased was being attacked by all the four persons, he ran away from the place and concealed himself behind a palm tree. After verifying that all the accused disappeared from the scene, he came near to the deceased and found that he was dead. 14. It is strenuously contended by the learned counsel for the appellants that the conduct of P.W.1, who is the elder brother of the deceased, in keeping quiet when the deceased was attacked, would create a doubt as to whether he would have been present in the scene of occurrence. 15. On this ground, we are not able to reject the evidence of P.W.1. As pointed out by the Supreme Court, to discard the evidence of a witness on the ground that he did not react in any particular manner is to appreciate evidence in a wholly unrealistic and unimaginative way. Human behaviour varies from person to person. Different people behave and react differently in different situations. Human behaviour depends upon the facts and circumstances of each given case. How a person would react and behave in a particular situation can never be predicted. Every person, who witnesses a serious crime, reacts in his own way. Some are stunned, become speechless and stand rooted to the spot. Some become hysteric and start wailing. Some start shouting for help. Others run away to keep themselves as far removed from the spot as possible. Yet others rush to the rescue of the victim, even going to the extent of counterattacking the assailants. Each one reacts in his special way even in similar circumstances. Some become hysteric and start wailing. Some start shouting for help. Others run away to keep themselves as far removed from the spot as possible. Yet others rush to the rescue of the victim, even going to the extent of counterattacking the assailants. Each one reacts in his special way even in similar circumstances. So, the principle, regarding the varieties of reactions, has been laid down by the Supreme Court in STATE OF U.P. v. DEVENDRA SINGH, reported in 2005 SUPREME COURT CASES (CRI) 582 and STATE OF PUNJAB v. HARDAM SINGH AND OTHERS, reported in 2005 SUPREME COURT CASES (CRI) 834. 16. It is also contended by the learned counsel for the appellants that the conviction, on the basis of a single eye witness, is not proper, especially the evidence of P.W.1 cannot be said to be above reproach and beyond suspicion. He would cite 1976 CRI.L.J.496 (BADRI v. STATE OF RAJASTHAN) and AIR 1987 SUPREME COURT 1222 (SUBASH AND SHIV SHANKAR v. STATE OF U.P.) in this regard. 17. As correctly pointed out by the learned Additional Public Prosecutor, conviction can be based upon a single eye witness, provided he is reliable. 18. In this context, it would be worthwhile to refer to the observation made by the Supreme Court in AIR 1957 SUPREME COURT 614 (VADIVELU THEVAR v. THE STATE OF MADRAS), which is as under : "Generally speaking, oral testimony in this context may be classified into three categories, namely, (1) wholly reliable (2) wholly unreliable and (3) neither wholly reliable nor wholly unreliable. In the first category of proof, the Court should have no difficulty in coming to the conclusion either way – it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach. In the second category, the Court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial." 19. In the light of these principles, if we look at the evidence of P.W.1, we have to hold that his evidence is not only fully reliable, but also is corroborated by the material particulars. In the light of these principles, if we look at the evidence of P.W.1, we have to hold that his evidence is not only fully reliable, but also is corroborated by the material particulars. P.W.1, on seeing the attack and after verifying the fact that the deceased died, immediately came and told both P.W.3, father, and P.W.4, mother, that four persons, who earlier threatened them to vacate the area, attacked the deceased. Further, P.W.1 informed his parents, namely, P.Ws.3 and 4 even immediately after the threat, that was given out to the deceased family. This aspect has been spoken to by P.Ws.3 and 4. 20. In this regard, it would be appropriate to refer to Section 6 of the Evidence Act. "Relevancy of facts forming part of same transaction – Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places." Illustration (a) to Section 6 reads thus : "Whatever was said or done either by the victim or the accused or the bystanders at the time of occurrence, or so shortly before or after it as to form part of the transaction, is a relevant fact." 21. Thus, it is clear that whatever was said by P.W.1 to P.Ws.3 and 4 immediately after the occurrence or so shortly before or after the occurrence, the part of the transaction is admissible. The aspect of the law relating to Section 6 of the Evidence Act has been clearly dealt with in detail in 1997 (2) LAW WEEKLY (CRI) 532 (VENKATESAN v. STATE, BY INSPECTOR OF POLICE, TIRUPORUR), by a Division Bench of this Court. Further, the evidence of P.W.1,P.W.3 and P.W.4 and Ex.P-1 would clearly establish that there was a motive for the accused to attack the deceased, as the deceased did not oblige them, by vacating the area, in which the Muslims were in majority. Moreover, relating to the occurrence and the injuries caused on the deceased, the narration of events made by P.W.1 is perfectly reliable, especially when his evidence has been corroborated by the medical evidence, adduced by P.W.8, doctor, who conducted post-mortem. 22. It is contended that P.W.2 turned hostile and, as such, there is no corroboration for the evidence of P.W.1 by P.W.2. 23. 22. It is contended that P.W.2 turned hostile and, as such, there is no corroboration for the evidence of P.W.1 by P.W.2. 23. It is true that P.W.2 also sustained injuries. P.W.1 has stated about this in Ex.P-1 itself. According to P.W.1, P.W.2 ran away from the scene. 24. Learned counsel for the appellants would point out that the injuries found on the legs of P.W.2 are such that they would incapacitate P.W.2 to run away from the place and, as such, the evidence of P.W.1 is doubtful. 25. We are unable to accept this point, especially when the wound certificate issued to P.W.2 does not indicate that he had any fracture in the legs. It is also to be pointed out that nothing was elicited from the evidence of P.W.7, doctor, who treated P.W.2, that P.W.2 could not move away from the place because of the nature of injuries. Therefore, in our view, the evidence of P.W.1, who is reliable, has been sufficiently corroborated with all material particulars. 26. In regard to the identification parade, it is contended that the accused were shown to P.W.1 even before the parade and the parade was conducted belatedly. 27. Mere delay would not be a ground to reject the evidence about the identification of the accused in the parade, as laid down in 2001 SUPREME COURT CASES (CRI) 553 (DAYA SINGH v. STATE OF HARYANA). Further, the delay aspect has been explained by P.W.16, Judicial Magistrate, and P.W.18, investigating officer. 28. According to P.W.18, investigating officer, the occurrence took place on 02.09.1997; four accused surrendered on 08.09.1997; police custody of the accused was granted on 17.09.1997; a requisition was made immediately on 23.09.1997 for identification parade; on 24.09,1997 itself, there was an order by the Judicial Magistrate and since the Magistrate concerned was on leave on 07.10.1997, parade was postponed and, ultimately, on 06.11.1997, the accused were identified. 29. Even assuming that there was delay in conducting the identification parade, the peculiar facts of this case would indicate that P.W.1 knew the accused earlier and that was the reason why he mentioned in Ex.P-1 itself that he could identify all the four accused clearly. 30. 29. Even assuming that there was delay in conducting the identification parade, the peculiar facts of this case would indicate that P.W.1 knew the accused earlier and that was the reason why he mentioned in Ex.P-1 itself that he could identify all the four accused clearly. 30. According to the prosecution, when the deceased was threatened by all the four accused, the deceased came and complained to P.W.1; in order to question them, P.W.1 and the deceased went to the area, where the accused were residing, and, after seeing the accused, P.W.1 decided to report to Jamath against those persons, instead of questioning them, to avoid a further quarrel. 31. This would indicate that the accused were known to P.W.1, even before the occurrence. Therefore, there is no difficulty in holding that identity of the accused has been clearly established. That apart, the fact remains that all the accused surrendered before the Court on 08.09.1997 itself and, on their custody, they gave confession, which led to the recovery of weapons. This factor also fortifies the case of the prosecution. Therefore, there is no merit in this appeal. 32. Criminal Appeal is dismissed, confirming the conviction and sentence imposed on the appellants/accused by the trial Court.