The Challenge
1. The Principal Sessions Judge, Kanyakumari District at Nagercoil, vide judgment and order dated 22nd March 2002, convicted the appellant for committing murder and sentenced him to life in prison together with 2 fine of Rs.1000/-, in default to undergo rigorous imprisonment for 6 (six) months. Aggrieved thereby, the appellant invoked the jurisdiction of the Madras High Court, Madurai Bench, under section 374(2) of the Code of Criminal Procedure, 1973. The High Court, vide judgment and order dated 12th November 2009, allowed the appeal in part. The appellant was convicted for an offence under section 304-Part II, of the Indian Penal Code, 1860 (“IPC”, hereafter) and sentenced to five years’ rigorous imprisonment. Still dissatisfied, the judgment and order of the High Court has been carried by the appellant in appeal before this Court.
Prosecution Case
2. The prosecution case is that the victim, Palas, and his wife (PW-3) after returning from their respective jobs on 12th March, 1996, had been to a tea stall run by Velukutti (not examined). At the tea stall were present Ponnaian (not examined) and Wilson (PW-2). In their presence, Palas had demanded Rs.50/-, being his wages, from the appellant. Incidentally, Palas was a “coconut cutting coolie” working under the appellant. Hearing such demand, the appellant abused Palas in filthy language which was followed by physical abuses by and between them. Suddenly, the appellant picked up one rubber stick (lying on the back side of the tea stall) and hit Palas on the front and back sides of his head while exhorting him to get lost. On receiving such blow from the appellant, Palas fell down whereupon Ponnaian, Devaraj (PW-1) and PW-3 separated the two (appellant and Palas). Holding the rubber stick, the appellant threatened those present thereat that they would have to suffer the same consequences as Palas, if any of them challenged him. Thereafter, the appellant fled towards the north side. Palas was taken to a private nursing home, viz. Sivanandam Nursing Home at Panichamuttu (sic, Panachamoodu) village, Kanyakumari district, and admitted there on the same day. On 13th March, 1996, the doctor at the nursing home (PW-7) advised shifting of Palas to another hospital, whereafter he was taken to a government hospital, viz. Medical College and Hospital, Thiruvananthapuram (the nearest government hospital, although in a State different from the State where the alleged incident occurred). Palas was admitted there at on 13th March 1996 at 11.00 p.m. but, unfortunately, breathed his last on 14th March 1996 at about 07.15 p.m. A death intimation memo (Ex. P3) was issued by the doctor (PW-8). It was on the following day, i.e. 15th March 1996, that the first information report (“FIR”, hereafter) was registered on a complaint by Devaraj (PW-1) against the appellant for the offence punishable under section 302, IPC at Arumanai Police Station at about 09.00 a.m. On 15th March 1996 itself, post mortem was conducted by an Assistant Professor of Forensic Medicine and Deputy Police Surgeon, Medical College, Thiruvananthapuram (PW-9). The post mortem report (Ex. P5) revealed the opinion that “head injury” sustained by Palas was the cause of death.
The Question
8. The question we are tasked to decide is whether, based on the evidence on record, the High Court was justified in returning a finding that the appellant was guilty of the offence punishable under section 304- Part II, IPC and liable to be sentenced as a consequence thereof, as has been imposed on him.
9. We have meticulously perused the materials on record as well as considered the contentions advanced at the Bar with the care and attention the same deserve.
When evidence shall be discarded?
10. In cases of the present nature, where material witnesses are withheld by the prosecution and it is the positive case set up by the defence that he has been falsely implicated for murder though death of the victim could be for reasons attributable to an accidental fall from a tree and such a case in defence finds some amount of corroboration from the other evidence on record, coupled with the fact that the appellate court has imposed a lesser sentence upon reversal of the finding of murder returned by the trial court, this Court as the court of last resort has a duty to separate the grain from the chaff and after sieving the untruth or unacceptable portion of the evidence, to also examine whether the residue is sufficient to prove the guilt of the accused. There seems to be no legal bar in convicting an accused resting on part of the evidence, which is primarily found to be credible and acceptable; however, where the evidence is so inseparable that any attempt to separate them would destroy the substratum on which the prosecution version is founded, then this Court would be within its legal limits to discard the evidence in its entirety. Bearing this settled principle in mind, we proceed to assess the evidence on record.
FIR appreciation: If the delay in lodging the fir is satisfactorily explained it should be considered
11. We start with the FIR, to which exception has been taken by the appellant urging that there has been no satisfactory explanation for its belated registration. It is trite that merely because there is some delay in lodging an FIR, the same by itself and without anything more ought not to weigh in the mind of the courts in all cases as fatal for the prosecution. A realistic and pragmatic approach has to be adopted, keeping in mind the peculiarities of each particular case, to assess whether the unexplained delay in lodging the FIR is an afterthought to give a coloured version of the incident, which is sufficient to corrode the credibility of the prosecution version. In cases where delay occurs, it has to be tested on the anvil of other attending circumstances. If on an overall consideration of all relevant circumstances it appears to the court that the delay in lodging the FIR has been explained, mere delay cannot be sufficient to disbelieve the prosecution case; however, if the delay is not satisfactorily explained and it appears to the court that cause for the delay had been necessitated to frame anyone as an accused, there is no reason as to why the delay should not be considered as fatal forming part of several factors to vitiate the conviction.
Customary practice of registering the fir at the police outpost prior to admitting the patient for treatment and forward the same to the police station
12. In the present case, we have noticed that the FIR was admittedly lodged on 15th March 1996 at about 09.00 a.m. although the incident was of 12th March 1996 and in between Palas was treated initially in a private nursing home and then in the government hospital where he passed away on 14th March 1996 around 07.15 p.m. From the evidence on record, what we find is that the crime was not reported to the police because, first, 10 none of the doctors who had attended to Palas had advised PWs 2 and 3 to so report; secondly, PW-2 did not report out of fear as the appellant had threatened PWs 2 and 3; and thirdly, PW-3 wanted to save her husband. It is the oral evidence of a head constable who was posted at Arumanai Police Station (PW-10) that PW-1 had visited the police station on 15th March 1996 and given a statement (Ex. P7) based whereon the FIR (Ex. P8) was prepared. He admitted that no message was received prior to the FIR (Ex. P8) and that one police outpost is there within the campus of the Trivandrum Medical College. He also admitted that generally an FIR should be registered at the police outpost prior to admitting the patient for treatment and that such FIR should be forwarded to the police station. It is also in the evidence of the Inspector of Police, Arumanai Police Station (PW-11) that the place of occurrence is at a distance of 15 kms. from his police station.
Contradictory version of P.W-2 and P.W-7 regarding the injury
14. PW-2 deposed that he had taken Palas to Sivanandan Nursing Home and had stated to the doctor (PW-7) that the appellant had hit Palas with a rubber stick. Such version of PW-2 has been contradicted by PW-7. 11 According to PW-7, Palas was brought to the nursing home on 12th March at about 07.30 p.m. Since he had injury on his head, PW-7 provided first aid to him. At such nursing home, Palas received treatment for a day whereafter he was advised by PW-7 to be admitted at a government hospital. It is in the version of PW-7 that information would have been given to the police had he been told that Palas was attacked by somebody. It is, therefore, clear that the version of PW-7 has a different tale to tell.
As per section 134 Evidence Act it is not the quantity but the quality of the evidence that would matter
15. Moving on to the oral testimony of the witnesses, what we have to bear in mind is section 134 of the Indian Evidence Act, 1872 (“Evidence Act”, hereafter) and the categorization of oral testimony into witnesses who are (i) wholly reliable; (ii) wholly unreliable; and (iii) neither wholly reliable nor wholly unreliable. It is not the quantity but the quality of evidence that would matter.
17. In the light of the above explanation proffered by PWs 2 and 3, which does not appear to us to be reliable and acceptable, we do feel that the absence of Ponnaian and Velukutti assumes importance. In fact, their absence has the effect of seriously damaging the prosecution case and rendering it quite unreliable.
Presence of witnesses during the assault were not examined
18. It is in the deposition of PW-11 that PW-10 had recorded the statement of, inter alia, Velukutti earlier and that PW-11 himself had recorded the statements of PWs 1, 2 and 3 as well as Ponnaian. Ponnaian and Velukutti were admittedly present at the tea stall when the alleged incident of assault took place (version of PWs 2 & 3). The prosecution has not explained why Ponnaian and Velikutti were not called upon to depose despite they being present at the place of occurrence and despite their statements having been recorded in course of investigation. If indeed they were unavailable to depose, it was incumbent on the prosecution to adduce relevant evidence in that regard. The prosecution having not examined Ponnaian and Velikutti, illustration (g) of section 114 of the Evidence Act is well and truly attracted in the present case.
Prosecution did not submit medical records to prove that the deceased was assaulted by a rubber stick
19. Next, there is something noteworthy about the injury inflicted on Palas if at all the version of the prosecution is to be believed. PW-2 in course of cross-examination deposed that Palas had suffered a “small injury”. It is also in the evidence of PW-7 that after Palas was brought to Sivanandam Nursing Home, he was provided first aid by PW-7. Providing first aid to Palas coupled with the statement of PW-2 of a small injury having been suffered by Palas, it is not unreasonable to presume that the injury was obviously not too serious and Palas himself was in a position to say how he had suffered the injury. From the evidence of the two doctors, viz. PWs 7 and 8, it does not appear that Palas was physically disabled to speak or that any conversation took place in course whereof Palas did disclose that he was assaulted by the appellant. It was incumbent on the prosecution to produce documents relating to admission of Palas in the nursing home and at the government hospital as well as those relating to his treatment to prove that Palas himself was not in a position to speak. None of these medical documents having been produced, there is no corroboration that the head injury which Palas suffered was caused by the blow of the rubber stick and also that the same could not have been suffered as a result of a fall from the tree.
Since presence of alcohol is in the body and there is every chance of fell from a grown high tree
20. That apart, it is seen from the evidence of the autopsy surgeon (PW-9) that there were several scratch injuries suffered by Palas near to his left shoulder, on his left elbow, on his upper right thumb, and lower to left knee on his left foreleg. Most importantly, there was a lacerated injury on the corner of the tongue. It was not elicited from PW-9 how these injuries could have been sustained by Palas; on the contrary, the chemical examiner’s report dated 31st March 1999 (Ex. P6) reveals positive results for Indoform, Dichromate and Ethyl Acetate tests. Presence of ethyl alcohol in the blood, liver and kidney of Palas, which was not disputed by PW-9 and his further statement that “liquor was remained up to 3 days” coupled with his testimony in course of cross-examination that it is “possible to have sustain injuries found on head if a person fallen down from a high tree”, gives us reason to entertain serious doubts about the prosecution case which get amplified by what is discussed now.
Mere absconding cannot establish guilt or guilty
23. Although not brought to our notice in course of arguments, it is revealed from the oral testimony of PW-11 that the appellant could be apprehended 3 (three) years after the incident from Puliyur road junction in (1 km. away from Ambalakalai) in Kerala after vigorous search. However, abscondence by a person against whom an FIR has been lodged and who is under expectation of being apprehended is not very unnatural. Mere absconding by the appellant after alleged commission of crime and remaining untraceable for such a long time itself cannot establish his guilt or his guilty conscience. Abscondence, in certain cases, could constitute a relevant piece of evidence, but its evidentiary value depends upon the surrounding circumstances. This sole circumstance, therefore, does not enure to the benefit of the prosecution.
Conclusion
25. We are of the firm opinion, having regard to the aforesaid discussion, that the prosecution cannot be held to have established even the accusation of culpable homicide not amounting to murder against the appellant beyond reasonable doubt and to extend the benefit of doubt to him is what the justice of the case demands; hence, he is entitled to be acquitted. Ordered accordingly.
Appellant acquitted.
Party
Sekaran … Appellant vs. The State of Tamil Nadu …Respondent – Criminal Appeal No. 2294 Of 2010 – 2023 INSC 1062 – December 12, 2023.
https://main.sci.gov.in/supremecourt/2010/5983/5983_2010_8_1502_49033_Judgement_12-Dec-2023.pdf
Sekaran vs. The State of T.N 5983_2010_8_1502_49033_Judgement_12-Dec-2023
