TMI Blog2014 (5) TMI 1214X X X X Extracts X X X X X X X X Extracts X X X X ..... came with Aruval and attacked the deceased indiscriminately causing injuries on the neck, chest and other parts of the body, though, inadvertently, the trial court has mentioned that the injuries found on all over the body, had caused the death. It is a settled legal proposition that in case the question is not put to the witness in cross-examination who could furnish explanation on a particular issue, the correctness or legality of the said fact/issue could not be raised. Presence of light at the place of occurrence at the relevant time - HELD THAT:- The trial court recorded the findings to the fact that there was sufficient light. The High Court reappreciated the evidence and came to the conclusion that admittedly there was light in the facet of the house and there was also street light illuminating the place of occurrence. Even in the observation Mahazar Ex.P-18, the light has been shown. The evidence of Kumareshan (PW.19), the wireman of Electricity Board, was examined to prove the fact that at the relevant point of time, the electricity was in supply at the place of occurrence. There is some discrepancy in the statement of Malliga (PW.1) in this regard but she might ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso got injuries. After committing the offence, accused persons ran away. The matter was reported to the police by one Mr. Setu Raman to Mr. Gandhi (PW.16), the Head Constable of Viracholan Police Station. However, as the incident occurred outside the territorial jurisdiction of the said police station, the said Setu Raman informed the Inspector of Parthi Banoor Police Station at about 11 P.M. who went to the place of occurrence and recorded the statement of Malliga (PW.1), wife of deceased. On the basis of the same, an FIR was registered under Sections 147, 148, 324, 326, 307 and 302 of the Indian Penal Code, 1860 (hereinafter referred to as IPC ) in the morning of next day at 7.30 A.M., wherein 17 accused persons including two appellants had been named. The dead body was sent for post-mortem and the two sons of the deceased were medically examined. The accused were taken into custody on different dates and on their disclosure statement, recoveries were made. After completing the investigation, chargesheet was filed against 17 accused persons and the case was committed to the Sessions Court. The Trial Court vide judgment and order dated 27.11.2001 acquitted all the accused. C. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was no material discrepancy which go to the root of the cause. More so, in a case where a retrial was conducted, the witnesses could not give the same version after a long lapse of time. If some persons had been acquitted disbelieving the deposition of Malliga (PW.1), that cannot be a ground for acquittal of the appellants. The appeal lacks merit and is liable to be dismissed. 5. We have considered the rival submissions made by the learned counsel for the parties and perused the record. 6. Dr. Prakash Karath (PW.11) conducted the autopsy on the dead body of deceased on 31.7.1999 and found the following external injuries on the dead body. 1). An incised wound of 10 x 4-1/2 x 4cms in front of neck on the right side just below the lower border of the mandible right from the chin to the angle of mandible. The lower skin flab vessels found severed. Blood clots present over the wound. 2). An incised wound of 8-1/2 x 4-1/2 x 4cms in the front of the cheek just 3cm above the supra external notch 3cms on the right side midline 5-1/2cm on the left side in the horizontal direction. Trachea found cut. Vessels found severed. The cut ends are regular and smooth. Blood clots seen on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Maheswaran (PW.22) examined Paulmeli (PW.2) and he issued Ex.P.39-Accident Register Copy. He found the following injury: 1) Cut injury back left elbow 7 x 5 exposing bone, with skin deep. M.O.1 is the X-Ray taken for Vijayasamy and M.O.2 is the X-Ray taken for Paulmeli by Dr. Indrani (PW.12), Radiologist. 9. There had been recovery on the disclosure statement of the accused. So far as the present appellants are concerned in their statement under Section 313 of Code of Criminal Procedure, 1973 (hereinafter referred to as the `Cr.P.C. ), they denied their involvement and did not lead any evidence in their defence. 10. In the instant case, Malliga (PW.1), wife of deceased, in the FIR, in her statement under Section 161 Cr.P.C. and in her deposition in the court, had specifically named both the appellants. Even though, she had named other persons also. The appellants had been known to the said witness for a long time as they were closely related. There was sufficient light as per the evidence on record even otherwise there can be no difficulty to recognise so closely related persons even in darkness. The injuries found on the person of the deceased are duly supported by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting the place of occurrence. Even in the observation Mahazar Ex.P-18, the light has been shown. The evidence of Kumareshan (PW.19), the wireman of Electricity Board, was examined to prove the fact that at the relevant point of time, the electricity was in supply at the place of occurrence. There is some discrepancy in the statement of Malliga (PW.1) in this regard but she might have not been able to give exact specific account being an illiterate village woman and as the appellants have not been strangers, there could be no difficulty for her to identify the appellants even in the darkness. 14. The Trial Court recorded the finding that the FIR had been lodged promptly. The High Court re-appreciated the full particulars as under what circumstance the FIR had been lodged. The relevant parts thereof reads as under: 31. The evidence on record would show that there is no delay in registering the F.1.R. after the receipt of the complaint. P.W.21 registered the F.I.R. at 00.45 hours and send the same to the Judicial Magistrate through P.W.14 - Mohamed Sherif. P.W.14 received the F.I.R. at 2.15 A.M. Since it was night, at 6.00 A.M. he proceeded to the Paramakudi Judicial Magistrat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e witness cannot be discarded as a whole, and relevant parts thereof which are admissible in law, can be used by the prosecution or the defence. 18. Learned counsel for the appellants submits that in case, on the basis of the same evidence, 15 accused persons had been acquitted, the appellants could not have been convicted. We do not find any force in such a submission for the reason that there may be some exaggeration in depositions of the prosecution witnesses. The courts below had not accepted the evidence to that extent and have given benefit of doubt. 19. In Balka Singh Ors. v. State of Punjab, AIR 1975 SC 1962, this Court considered a similar issue, placing reliance upon its earlier judgment in Zwinglee Ariel v. State of Madhya Pradesh, AIR 1954 SC 15 and held as under: The Court must make an attempt to separate grain from the chaff, the truth from the falsehood, yet this could only be possible when the truth is separable from the falsehood. Where the grain cannot be separated from the chaff because the grain and the chaff are so inextricably mixed up that in the process of separation, the Court would have to reconstruct an absolutely new case for the prosecution ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
