IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 13.06.2008 C O R A M THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR Crl.R.C.No.1190/2005 and Crl.M.P.No.7241 of 2005 Albert @ Athimoolam ... Revision Petitioner Vs. State of Tamil Nadu Rep. by Sub-Inspector of Police Uthiramerur Police Station Kancheepuram District ... Respondent This Criminal Revision Case has been filed under Section 397 and 401 of Criminal Procedure Code against the Judgment dated 01.09.2005 passed in Crl.Appeal No.74 of 2005 on the file of Addl. Sessions Judge, Fast Track Court II, Kancheepuram upholding the conviction made and sentence passed by the learned District Munsif Cum Judicial Magistrate II, Uthiramerur, Kancheepuram District dated 11.04.2005 made in C.C.No.3 of 2001. For Petitioner : M/s.A.Stalin, Amicus Curiae For Respondents : Mr.R.Muniapparaj Govt Advocate (Crl.Side) O R D E R
This Criminal Revision Case is directed against the judgment dated 01.09.2005 made in Crl.Appeal No.74 of 2005 dated 01.09.2005 on the file of Addl. Sessions Judge, Fast Track Court II, Kancheepuram confirming the conviction recorded by the learned District Munsif cum Judicial Magistrate in C.C.No.3 of 2001 by his judgment dated 11.04.2005 and the sentence of punishment imposed thereon for an offence punishable under Section 324 IPC.
2. The sole accused in C.C.No.3 of 2001 who stood charged and tried for an offence punishable under Section 326 IPC, but found guilty of an offence punishable under Section 324 and sentenced to undergo one year rigorous imprisonment and to pay a fine of Rs.2,000/- for the said offence with a default sentence to undergo 2 months rigorous imprisonment in case of default in payment of the fine, by the learned District Munsif-cum-Judicial Magistrate, Uthiramerur by his judgment dated 11.04.2005, had challenged the said conviction and sentence imposed on him before the lower appellate court (Addl. Sessions Judge, Fast Track Court II, Kancheepuram) in Crl.Appeal No.74 of 2005. The learned Additional Sessions Judge, Fast Track Court II, Kancheepuram, by his judgment dated 01.09.2005, confirmed the conviction recorded and the sentence imposed by the trial court. Challenging the correctness and legality of the same, the petitioner has preferred the present Criminal Revision Case.
3. The case of the prosecution, in brief, can be stated as follows:-
P.W.1 Amudha and P.W.3 Pushpa are daughters of P.W.5 Adhilakshmi. P.W.6 Mala is the daughter-in-law of Adhilakshmi. P.W.2 Raji is also a close relative of the said persons. All of them are residents of Kallamma Nagar village within the jurisdiction of Uthiramerur Police Station. Albert (a) Athimoolam, the petitioner/accused was doing herbal business for which he used to borrow money from P.W.1-Amudha. Prior to the date of occurrence, P.W.1-Amudha had pledged her jewels for lending money to the petitioner/accused. On 22.09.1996 at about 7.30 AM when P.W.1 and P.W.3 were chatting with each other in the vacant site situated near the house of P.W.1, the petitioner/accused came there. On seeing him, P.W.1 and P.W.3 asked him to redeem the jewels of P.W.1 by paying the necessary amount to the pawnee. Enraged by the same, the petitioner/accused slapped P.W.3 on her cheek. When he was questioned by P.W.1 regarding the proprietary of such an act on his part, he attacked her with a knife and caused a stab injury on her left side shoulder. Immediately P.W.2 – Raji took her to the Government Medical College Hospital, Chengalpattu. P.W.4 – Dr.Jeyapal examined her, prepared Ex.P2 Accident Register and gave initial treatment. After initial treatment at the said hospital, P.W.1 – Amudha was referred to Stanley Medical College Hospital at Chennai for better management, where she was treated as an in-patient and was discharged on 16.11.1996. P.W.7 – Dr.Chittan was the Medical Officer who admitted her in Stanley Medical College Hospital and the Wound Certificate issued by the said hospital is Ex.P3. P.W.3 – Pushpa also accompanied the injured P.W.1 to the said hospitals. As the relatives of the injured P.W.1 had gone to the hospital to attend on her, the police was not informed of the incident till the expiry of 2 days. On 24.09.1996, P.W.3 – Pushpa lodged a complaint (marked as Ex.P1) on the file of Uthiramerur Police Station. Based on the said complaint P.W.8 – Manimaran, the then Sub-Inspector of Police, Uthiramerur Police Station registered a case in Crime No.1110/1996 on the file of the said case for offences punishable under Section 323 and 324 I.P.C. P.W.8 who conducted the investigation, examined the witnesses, collected documents, completed the investigation and altered the case into a case for offences punishable under Section 326 instead of offences punishable under Section 323 and 324 and submitted a final report alleging commission of the said offence by the petitioner/accused on the file of the learned Judicial Magistrate No.2, Chengalpattu.
The said final report submitted by P.W.8 was taken on file by the learned Judicial Magistrate No.2, Chengalpattu as C.C.No.3 of 2001 on his file. In the said court, necessary charge for offence under Section 326 was framed and trial was partly conducted in the said court. As thereafter, a separate Judicial Magistrate Court at Uthiramerur came to be established, on point of jurisdiction, the same was transferred to the said court and re-numbered as C.C.No.3 of 2001.
3. In order to substantiate the charge framed against the petitioner herein/accused, the prosecution examined as many as eight witnesses P.W.1 to P.W.8 and marked four documents as Ex.P1 to P4. No material object was produced. On completion of evidence on the side of the prosecution, the accused was questioned under Section 313(i)(b) regarding the incriminating materials found in the evidence adduced on the side of the prosecution. The petitioner/accused denied them as false. No witness was examined and no document was marked on the side of the petitioner herein/accused.
4. The learned trial judge (the learned District Munsif-cum-Judicial Magistrate, Uthiramerur) heard the arguments advanced on either side and took the view that the prosecution had proved its case that the petitioner herein/accused stabbed P.W.1 on her left shoulder with a knife and thereby committed an offence of causing grievous hurt punishable under Section 324, found him guilty of the offence under Section 324 IPC instead of an offence punishable under Section 326 IPC, convicted him for the said offence and awarded punishment as stated above.
5. As against the conviction recorded and the sentence imposed by the trial court, the petitioner herein/accused preferred an appeal on the file of the Principal Sessions Judge at Chengalpattu in C.A.No.74/2005. The said appeal was made over by the learned Principal Sessions Judge, Chengalpattu to the Fast Track Court II, Kancheepuram for disposal according to law. The learned Additional Sessions Judge, Fast Track Court II, Kancheepuram after hearing, dismissed the said appeal by his judgment dated 01.09.2005 confirming the conviction recorded and sentence imposed by the trial court. Questioning the correctness and legality of the said judgment of the lower appellate court, the petitioner herein/accused has filed the present Criminal Revision Case under Sections 397 read with Section 401 of Criminal Procedure Code.
6. Mr.A.Stalin, learned counsel advancing arguments on behalf of the petitioner in the Criminal Revision Case contended that the courts below committed error in not considering the valid grounds of defence taken by the petitioner herein/accused; that the courts below did not properly appreciate the implication of an unexplained delay in lodging the complaint; that both the courts below have erred in not accepting the contention of the petitioner herein/accused; that the non-examination of any one of the independent witnesses in the light of unexplained delay in lodging the complaint causing a serious doubt regarding the prosecution version had not been properly appreciated by the courts below; that even among the eye witnesses there was a vital contradiction regarding the weapon used which would affect the reliability of the concerned prosecution witnesses; that both the courts below omitted to notice certain vital discrepancies found in the records; that the material contradictions found in the prosecution evidence had not been properly adverted to by the courts below and that if all these factors were taken into consideration, the courts below would have definitely come to a conclusion that the prosecution had failed to prove its case beyond reasonable doubt. Contending further, the learned counsel for the petitioner argued that viewed from any angle, the judgments of the courts below should be held defective, erroneous and against law and hence they were liable to be reversed and set aside using the Revisional powers of this court and that for all the above said reasons this court should set aside the conviction recorded and sentence awarded by the trial court and confirmed by the lower appellate court and set the petitioner/accused at liberty by holding him not guilty of either the offence punishable under Section 326 with which he stood charged or a lesser offence, namely offence punishable under Section 323 or any lesser offence.
7. This court also heard the arguments advanced by Mr.R.Muniappa Raj, learned Government Advocate appearing on behalf of the State in reply to the above submissions made by the learned counsel for appellant and paid its anxious considerations to the same. The materials available on record were also perused.
8. The occurrence is said to have taken place at 7.00 AM on 22.09.1996. Excepting the official witnesses all the witnesses examined on the side of the prosecution are closely related to each other. The injured P.W.1 – Amudha and P.W.3 – Pushpa are the daughters of P.W.5 – Adhilakshmi. P.W.6 is none other than the daughter-in-law of the above said Adhilakshmi. P.W.2 – Raji is admittedly a close relative (bghpa khkdhh;) of P.W.1. As per P.W.1’s evidence, about 200 persons were witnessing the occurrence. However, P.W.6 would state that there were about 50 to 60 persons witnessing the occurrence. P.W.3 happened to be the person on whose complaint the case was registered. P.W.1 is the injured. Neither P.W.1 nor P.W.2 spoke about the presence of either P.W.5 or P.W.6 in the place of occurrence. It is not the case of the prosecution that the petitioner/accused rushed towards to P.W.5 and made an attempt to stab her also. However, P.W.5 has stated that the petitioner/accused did so. The same, as rightly pointed out by the learned counsel for the petitioner, will make the presence of P.W.5 in the scene of occurrence improbable, at any rate more doubtful. The contradiction regarding the number of persons witnessing the occurrence found in the evidence of P.W.1, the injured witness and P.W.6 coupled with the absence of any reference to the presence of P.W.6 in the scene of occurrence by P.W.1 and P.W.3 in their evidence will make the presence of P.W.6 also doubtful. This aspect has not been properly dealt with by the courts below.
9. As rightly pointed out by the learned counsel for the petitioner, the case as projected in the complaint is different from the evidence adduced in the trial regarding the pledge of the jewel. According to the complaint marked as Ex.P1, the petitioner/accused got the jewels (ear studs) of P.W.1-Amudha and he himself pledged them that is why he was asked by P.W.1 and P.W.3 to redeem them.
“mth; vd;Dila mf;fh mKjhtpd; eif – fk;ky; – th’;fp mlF itj;jpUe;jhh;/ me;j eifia vdJ mf;fhs; kPl;Lf; bfhL vd;W nfl;lhh;/”
10. But the evidence of P.W.1 in this regard is contra to what is found in Ex.P1. She has stated that she used to pledge her jewels and lend money to the petitioner/accused and that similarly she had pledged her jewels and lent money to him prior to the date of occurrence. At the same time she had also stated that she did not produce any receipt to show her raising funds by pledging her jewels. She has also admitted that she did not get anything in writing from the accused acknowledging the borrowal. On the other hand, P.W.3 has stated in her evidence that it was the practice of the petitioner/accused to get the jewels of P.W.1 and raise funds for his business by pledging them and that prior to the occurrence also, the petitioner/accused had got the studs of P.W.1 and had pledged them. The said contradiction, regarding the motive part of the prosecution case between Ex.P1 and the parole evidence and between the evidence of P.W.1 and P.W.3 are material contradictions making the story of the prosecution regarding the motive doubtful.
11. The learned counsel for the petitioner also pointed out a vital discrepancy found in the evidence of P.W.1 and P.W.3, the only probable eye witnesses, regarding the weapon allegedly used by the petitioner/accused to stab the injured P.W.1. According to the complaint and according to P.W.1’s evidence she was stabbed by the petitioner/accused on the left side shoulder using a knife (fj;jp) whereas P.W.3 in her evidence has stated that he used a scissor (fj;hp) to stab P.W.1. P.W.7 was not in a position to give any opinion as to whether the stab injury found on the left side shoulder of P.W.1 could have been caused by a sharp edged bamboo stick. It is also pertinent to note that none of the medical officers have noted the depth of the injury. P.W.7 would admit during cross-examination that unless the depth of the injury is measured, the nature of weapon used for stabbing and the force with which the same was used could not be found out. It is his further admission that he could not say whether the injury could have been caused with a knife. When such is the evidence of the medical officer, the above said contradiction found in the evidence of P.W.1 and P.W.3 regarding the weapon used assumes greater importance. This vital aspect has escaped the scrutiny of the courts below. Therefore, as rightly pointed out by the learned counsel for the petitioner, the courts below would have doubted the prosecution version had they taken into consideration the above said aspect.
12. It is the further contention of the learned counsel for the petitioner that though there was no proper explanation for the delay of more than 2 days from the date of occurrence in lodging the complaint, the courts below have taken upon themselves the job of finding an explanation for the delay and that in fact, the courts below found out some kind of explanation for the delay on surmises and suppositions without being supported by positive evidence on the side of the prosecution. Nothing is mentioned in Ex.P1, as the reason for the delay in lodging the complaint. In Ex.P4, First Information Report, it has been noted that the delay was caused by the informant (defacto complainant). The only person capable of giving an explanation for the delay caused in lodging the complaint is P.W.3. P.W.3, apart from stating that she accompanied her sister (the injured witness P.W.1) initially to the Chengalpattu hospital and then to Stanley Medical College Hospital, Chennai, she did not state anything about the delay and the cause for it. According to the evidence of P.W.3, 17 persons went to Utthiramerur Police Station station and gave the complaint in writing. Though she has identified her signature found in Ex.P1 there is no evidence as to who wrote the same. If at all P.W.3 had gone to the police station and lodged the complaint based on which the case was registered, her signature would have been obtained in the First Information Report in token of having received a copy of the same. But in Ex.P4 First Information Report there is no such signature of P.W.3. The endorsement found in Ex.P1 complaint does not state that the statement was recorded by the police. It simply states that a case was registered based on the complaint. If at all P.W.3 personally went to the police station and lodged the complaint, her statement under Section 161 Cr.P.C. would have been recorded then and there itself. But, according to P.W.8 she was examined in the hospital. The same will give rise to a serious doubt on the prosecution version.
13. Yet another discrepancy, a more vital one, was also pointed out by the learned counsel for the petitioner. According to the evidence of P.W.6, her statement was recorded and her signatures were obtained on the day subsequent to the date of occurrence while she was in the hospital. If it is so, the said statement could have been the first information received by the police. The learned counsel for the petitioner, has rightly contended that either the said evidence of P.W.3 could be false or the first information received by the police should have been suppressed. In the light of the said facts pointed out supra, yet another discrepancy found in the records produced by the prosecution also causes serious doubt regarding the prosecution version as to when and how the first information was received by the police. The learned counsel for the petitioner has pointed out the fact that corrections have been made in the crime number noted not only in Ex.P1 complaint but also in Ex.P4 First Information Report at Pages 1 and 2. There is also a correction in the year column of the date found in Pages 1 and 2 of Ex.P4 First Information Report. All these aspects assume greater importance in the light of the fact that no proper explanation for the delay of more than 2 days in lodging the complaint has come-forth from the prosecution witness. It is unnecessary to cite all the decisions dealing with the effect of unexplained delay in lodging the complaint. If there is a considerable delay in lodging the complaint and such delay is not explained, the Apex court has held that such an unexplained delay is fatal to the prosecution. In support of the said view that unexplained delay in lodging the FIR is fatal to the prosecution, the following judgments of the Supreme Court can be noticed in “Bijoy Singh and another Vs. State of Bihar” reported in AIR 2002 SUPREME COURT 1949, “Karnesh Kumar Singh and others v. State of Uttar Pradesh” reported in AIR 1968 Supreme Court 1402, “Ramsewak and others v. State of M.P.” reported in (2004) 11 Supreme Court Cases 259) and “Harjinder Singh Alias Bhola vs. State of Punjab” reported in (2004) 11 Supreme Court Cases 253. In all those cases, it has been held that unexpected delay in lodging FIR is fatal to the prosecution case.
14. It is true as contended by the learned Government Advocate (Crl.Side) that all the mere delay alone will not be enough to discard the prosecution case as unbelievable, unless such delay gives room for an inference or a reasonable suspicion that some kind of concoction suppressing the actual occurrence could have been made. In this case, as pointed out supra, there are more vital discrepancies and contradictions regarding the weapon used. The delay of 2 days in lodging the complaint has not been satisfactorily explained. Whether P.W.3 could have gone to the Police Station to present the complaint Ex.P1? – is also doubtful as pointed in the foregoing paragraphs. Above all, though there were nearly 200 independent witnesses witnessing the occurrence, none of the said witnesses has been examined on the side of the prosecution. All the witnesses examined on the side of the prosecution, excepting official witnesses, are closely related to each other. As per the evidence of P.W.6, her statement was recorded and her signatures were obtained on the very next day after the occurrence. Hence the same gives a rise to a reasonable suspicion that the information furnished to the police at the first instance was suppressed and after deliberation, Ex.P1 complaint has been brought into existence and pressed into service.
15. All the factors pointed out above are enough to come to the conclusion that the unexplained delay coupled with the above said suspicion shall be used in favour of the accused to hold him not guilty. The courts below have not properly appreciated these factors and this court is satisfied that the judgment of the courts are discrepant and are not in accordance with law and hence the same are liable to be interfered with and reversed in this Criminal Revision Case.
16. In the result, the Criminal Revision Case succeeds and the same is allowed. The conviction recorded and the sentence awarded by the trial court and confirmed by the lower appellate court are set aside and the revision petitioner / accused is acquitted in respect of the offence with which he stood charged. It is admitted that the accused is on bail. The bail bond executed by him is directed to be cancelled. The amicus curiae shall be paid his remuneration as per the schedule applicable to the legal aid counsel.
asr
To :
1) The Addl. Sessions Judge, Fast Track Court II,
Kancheepuram
2) The District Munsif Cum Judicial Magistrate II,
Uthiramerur, Kancheepuram District
3) The Sub-Inspector of Police
Uthiramerur Police Station
Kancheepuram District