Full Judgment Text
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 76 OF 2008
(Arising out of SLP (Crl.) No. 863 of 2007)
Benjamin ….. Appellant
Versus
State Represented by Inspector of Police …. Respondent
JUDGMENT
S.B. SINHA, J.
1. Leave granted.
2. This appeal is directed against the judgment and order dated
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18 January, 2006 passed by a Division Bench of the Madras High
Court in Criminal Appeal No.142 of 1997 whereby and whereunder
the appeal filed by the appellant against an order of conviction dated
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30 January, 1997 passed by the Principal Sessions Judge, Dindigul
Anna District, was dismissed.
3. Appellant with Jesu Raj and Arokiyam were proceeded against
for commission of an offence under Section 302 of the Indian Penal
Code. The first and second accused were charged for commission of
an offence punishable under Section 302 of the Indian Penal Code
whereas the third accused was charged for commission of an offence
under Section 302 of the Indian Penal Code read with Section 34
thereof.
4. Enmity between the parties is admitted. There were instances
to show that the accused had been causing various kinds of mischief.
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The incident in question occurred on 26 November, 1994. Two
years prior thereto, accused Nos. 1 and 3 assaulted the deceased and
PW-4, Viyakula Mary. Four months thereafter, the appellant
(accused No.1) is said to have caused damage to the pipeline of the
water of the house of the deceased. A few months before the incident
in question, allegedly the haystack of the deceased was put on fire.
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Two weeks prior to the incident again, the deceased was
assaulted resulting in initiation of a criminal proceeding against the
accused.
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5. On 26 November, 1994 at about 9.00 p.m. while the deceased
and the informant - Kolandaisamy (PW-1) were proceeding towards
their house from Nilakkottai Market on their bicycles, somebody had
flashed torch light on the deceased. Deceased questioned thereabout.
At that time PW-1 also flashed light from his torch towards the
opposite direction and saw the appellant. Appellant assaulted the
deceased with a wood log which was marked as M.O.1. He saw the
accused No.3 catching hold of the deceased. He was threatened with
dire consequences, if he intervened, by the accused No.2 with a knife.
The deceased fell down but still was repeatedly assaulted. PW-1 ran
from the spot. He was chased. He allegedly hid himself in a bush.
6. PW-1 met PW-2 Saveriar and informed him about the incident
that had taken place. They rushed to their village. They came back to
the scene of occurrence and found that the deceased had expired.
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7. PW-1 went to Nilakottai police station. A First Information
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Report was lodged at about 1.00 A.M. on 27 November, 1994. The
Investigating officer reached the place of occurrence at about 2.00
A.M. He recovered blood stained earth and a blue shawl. Inquest of
the dead body was conducted between 3.00 a.m. and 5.00 a.m. He
had also examined some witnesses being PWs. 1, 2, 5 and 6. The
body was sent for post-mortem examination. Autopsy was conduced
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at about 11.15 a.m. on 27 November, 1994. The following anti
mortem injuries were found on the person of the deceased :-
“1. On the back side of the head a bruise of the
size 3 cm x 2 cm was found.
2. on the back of the left side of the head a
bruise of size 3 cm x 2 cm was found.
3. On the upper portion of the head a swelling
of the size 3 cm x 3 cm was found.
4. On the front side of the head a swelling of
size 3 cm x 3 cm was found.
5. On the right side of the eye brow a bruise of
size 2 cm x 1 cm was found.
6. Below the right eye a bruise of size 2 cm x 2
cm was found. Right eye was closed. Outside the
right was totally blackened.
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7. a swelling of the size 6 cm x 4 cm was
found on the right cheek.”
8. The learned Sessions Judge relying on or on the basis of the
material brought on record accepted the deposition of PW-1,
Kolandaisamy. All the other accused were held guilty of the charges
leveled against them. On an appeal preferred by the accused before
the High Court, it while upholding the conviction and sentence of the
appellant herein, it recorded a judgment of acquittal so far as accused
Nos. 2 and 3 are concerned. It was opined that accused No.2 being
father in law of he appellant, might not have any motive to cause the
murder of the deceased. Besides, no incised injury has been found on
the deceased. As regards accused No.3, it was held that there was no
cogent material to connect him with the crime.
9. Mr. T. Raja, learned counsel appearing on behalf of the
appellant in support of the appeal, inter alia would submit :-
1) That the High Court committed a serious error in
drawing presumption on the basis of the appellant’s
conduct, to hold that he had the requisite intention to kill
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the deceased. Such a presumption, learned counsel
would contend, is not available in law.
2) The cycle and torch used by PW-1 having not been
seized, which were material for the purpose of
corroborating his statement, the impugned judgment is
liable to be set aside.
3) If the articles which PW-1 had bought, could be seized,
there was absolutely no reason as to why the cycle and
the torch used by PW-1 could not have also been seized.
10. Mr. V. Kanakaraj, learned senior counsel appearing on behalf
of the State, on the other hand, supported the impugned judgment.
11. PW-1 and PW-4 have proved enmity between the parties.
Veracity of statements of the said witnesses to that effect was not
tested in the cross-examination. The fact that an incident had
occurred a few days prior to the incident in question is also not in
dispute.
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12. The First Information Report was received by the Investigating
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officer, PW-10, at 1.00 a.m. on 27 November, 1994. He
immediately came to the site. The distance between the place of
occurrence and Nilakkottai Police Station is about 3 kms. The
Investigating Officer reached the place of occurrence at about 2.00
a.m. Thus, the investigation commenced immediately after the
lodging of the First Information Report. It is not a case where an
undue delay in lodging the First Information Report took place.
13. Homicidal death of Maria Michel stands undisputed. It is also
evident from the post-mortem examination report that the injuries on
the deceased could have been caused by a log of wood which was
marked as M.O.1. The deceased suffered atleast three fractures on his
head.
14. PW-1, although may be a son of the deceased, but it is difficult
to disbelieve his statement that he had witnessed the occurrence.
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15. We have been taken through the entirety of his deposition and
do not find any reason to differ with the views of the learned Sessions
Judge as also the High Court. The cycle and the torch used by PW-1
had no connection with the commission of the offence. If they had
not been seized by the police, for one reason or the other, the same by
itself would not be a ground to disbelieve the statement of PW-1.
16. The following finding of the High Court had been commented
upon by Mr. Raja.
“From the conduct of the first accused, it can be
presumed that the first accused had the intention to
kill the deceased and therefore the prosecution has
proved its case in so far as the first accused is
concerned.”
17. The High Court while mentioning about the conduct of the
appellant, meant overt acts attributed on the part of the appellant.
The High Court merely opined that in view of the number of injuries
inflicted upon the deceased, he had an intention to kill him. Intention
to kill a person must be determined having regard to the factual
scenario involved in each case. The doctor PW-3, K. Subramaniam,
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has clearly stated that the injuries suffered by the deceased could have
been caused by the log of wood, which was marked as M.O.1.
Medical evidence, thus, corroborated the ocular evidence.
18. Keeping in view the number of injuries inflicted on the
deceased as also the nature thereof and furthermore in view of the
opinion expressed by the doctor, there cannot be any doubt
whatsoever that the appellant had the intention to kill the deceased.
19. For the reasons abovementioned we do not find any merit in
this appeal which is accordingly dismissed.
……………………………J.
( S.B. SINHA )
……………………………J.
( HARJIT SINGH BEDI )
New Delhi
January 11, 2008