Penal Code, 1860 – ss.148, 435 r/w. s.149 and s.302 r/w. s.149 – Case of the prosecution that when mother and brother of ‘S’ (PW-1 and PW-2 respectively) were going in an auto, ‘S’ along with PW-3 followed them on a motor cycle – Appellant along with other accused persons surrounded ‘S’ – One of the accused threw a lighted match stick into the petrol tank of the bike of ‘S’ and burnt it into fire – On seeing this, PW-1, ‘S’ and PW-3 ran in various directions with PW-1 following ‘S’ – When they reached near a field, all the accused surrounded ‘S’ – ‘S’ was stabbed with knives and died on the spot – Trial court convicted all the accused – High Court dismissed the appeal preferred by the appellant – Held: PW1 is the star witness for the prosecution – Evidence of PW-1 is clear that the accused persons had caused the injuries as stated by her – Her evidence is cogent, consistent and amply supported by medical evidence and other evidence – Overt act of the appellant that he cut the deceased with aruval had been categorically spoken by PW1 – Plea of appellant of false implication was concurrently rejected by both the courts below, there is no ground to interfere with such concurrent finding of fact – Upon appreciation of evidence, the courts below recorded concurrent findings of fact qua appellantaccused that he along with other accused murdered ‘S’– No ground warranting interference with the verdict of conviction. Evidence – Motive – When not important – Held: Where the case of the prosecution is based on the evidence of eye witnesses, the existence or non-existence of motive, sufficiency or insufficiency of motive will not play such a major role as in the case which is based on circumstantial evidence.
Evidence – Oral and Medical Evidence – Inconsistency between – Held: Oral evidence has to get primacy and the medical evidence is basically opinionative.
Criminal Trial – FIR – Delay in registration of – When not fatal – Discussed.
Dismissing the appeal, the Court
HELD: 1.1 PW-1, mother of deceased ‘S’, is the star witness for the prosecution. The evidence of PW-1 is clear that the accused persons had caused the injuries as stated by her. The overt act of the appellant-accused(A7) that he cut the deceased with aruval had been categorically spoken by PW-1. [Paras 9, 10][664-E; 665-B]
1.2 The overt acts described by PW-1 in the FIR were substantially corroborated by the medical evidence. Evidence of PW-1 is cogent and consistent and her evidence is amply supported by medical evidence and other evidence. Both the courts below having recorded concurrent findings of fact rejecting the contention of false implication, there is no ground to interfere with such concurrent findings of fact. Upon proper appreciation of evidence, the trial court has convicted the appellant/accused for causing the murder of deceased ‘S’ which was affirmed by the High Court. Upon appreciation of evidence, the courts below recorded concurrent findings of fact qua appellant-accused that he along with other accused caused the murder of deceased ‘S’. There is no good ground warranting interference with the verdict of conviction. [Paras 13, 21 and 23][666-A-B; 669-A, C-D]
2. Oral evidence has to get primacy and the medical evidence is basically opinionative. The testimony of the eye witness cannot be thrown out on the ground of inconsistency. When the opinion given is not inconsistent with the probability of the case, the court cannot discard the credible direct evidence otherwise the administration of justice is to depend on the opinionative evidence of medical expert. The medical jurisprudence is not an exact science with precision; but merely opinionative. In the case in hand, the contradictions pointed out between the oral and medical evidence are not so grave in nature that can prove fatal to the prosecution case. [Para 14][666-B-E]
3.1 For the occurrence at 05.00/05.30 PM on 19.08.1996, FIR was registered at 08.00 PM. Of course, there was a delay of two and half hours in registration of FIR; there was also delay in receipt of FIR by the Judicial Magistrate that is at 05.00 AM on 20.08.1996. There was attack on PW-1’s son in the first part near the temple. Thereafter, in the second part, deceased was chased by accused persons and on reaching the paddy field, accused persons surrounded the deceased and attacked him. Therefore, it is quite clear that the entire occurrence did not take place in a split second. The occurrence was held in two parts and in those circumstances, it is quite natural that there is some time gap before the complaint (Ex.-P1) was lodged at 08.00 PM. Deceased ‘S’ was brutally murdered with eleven incised wounds; naturally it must have taken some time for PW-1-sole eye witness to come to her normal and then discuss with her relatives and then proceed to the police station which is situated at a distance of four kilometres, to lodge the complaint. [Para 16][667-C-F]
3.2 So far as dispatching FIR, Head Constable (PW-10) submitted that the distance between the police station, Veeravanallur and house of Judicial Magistrate, Cheranmadevi was seven kilometres and due to this murder, the buses on the route from Tirunelvelli to Nagarcoil were not plying on that day and therefore, he had to travel to the house of Judicial Magistrate by walking. Courts below found that there is nothing abnormal in the receipt of the FIR by the Magistrate as to affect the prosecution case. Delay in setting the law into motion by lodging the complaint is normally viewed by the courts in suspicion because there is possibility of concoction of evidence against the accused. In such cases, it becomes necessary for the prosecution to satisfactorily explain the delay in registration of FIR. But there may be cases where the delay in registration of FIR is inevitable and the same has to be considered. Even a long delay can be condoned if the witness has no motive for falsely implicating the accused. In the present case, PW-1 had no motive to falsely implicate the accused. PW-1 seeing her own son being brutally attacked, the effect of the incident on the mind of the mother cannot be measured. Being saddened by the death of her son, it must have taken sometime for PW-1 to come out of her shock and then proceed to police station to lodge the FIR. The delay of two and half hours in lodging the complaint and registration of FIR and the delay in receipt of the FIR by the Magistrate was rightly held as not fatal to the prosecution case. [Paras 17, 18][667-F-H; 668-A-C]
4. Where the case of the prosecution is based on the evidence of eye witnesses, the existence or non-existence of motive, sufficiency or insufficiency of motive will not play such a major role as in the case which is based on circumstantial evidence. If the prosecution is able to prove its case or motive, it will be a corroborative piece of evidence; but if the prosecution had not been able to prove its case or motive or the motive suggested is too slender, that will not be a ground to doubt the prosecution case. When other evidence against the accused is clear and cogent as in the present case, absence of motive or insufficiency of motive is of no importance. [Para 20][668-E-F]
State of Haryana v. Bhagirath and others (1999) 5 SCC
96 : [1999] 3 SCR 529 – relied on.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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