IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 7-12-2009 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALILNGAM AND THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH CRL.A.No.425 of 2009 Rajendran .. Appellant vs State by Inspector of Police Attur Police Station Crime No.499/05 .. Respondent Criminal appeal preferred under Sec.374(2) of the Code of Criminal Procedure against the judgment of the Additional District and Sessions Judge, Fast Track Court No.I, Salem, made in S.C.No.169 of 2008 dated 29.5.2009. For Appellant : Mr.M.G.Sankaran For Respondent : Mr.Babu Muthu Meeran Additional Public Prosecutor JUDGMENT
(Judgment of the Court was delivered by M.CHOCKALILNGAM, J.)
This appeal challenges a judgment of the Additional Sessions Division, Fast Track Court No.I, Salem, made in S.C.No.169 of 2008 whereby the sole accused/appellant stood charged under Sections 302 and 201 read with 109 of IPC, tried, found guilty as per the charges and awarded life imprisonment along with a fine of Rs.10000/- and default sentence under Sec.302 IPC and 7 years Rigorous Imprisonment along with a fine of Rs.7000/- and default sentence under Sec.201 read with 109 IPC.
2.Short facts necessary for the disposal of this appeal can be stated as follows:
(a) P.W.1 is the wife of the deceased Thoppalan. The marriage between them took place 15 years before, and they were living happily. The deceased was not only doing coolie work, but also indulging in business activities with the accused in the sales of pigs and goats. On that count, the accused was to pay Rs.8000/- to the deceased and for a longtime, demands were made, but he was not making the payment.
(b) On the date of occurrence i.e., 26.5.2005, the deceased accompanied by P.Ws.1 and 2 went to the place of the accused and was making demand. At that time, the accused not only refused to pay the amount, but also uttered the words “Do you require money”. So saying, he took a coconut leafstalk (chekkumattai) and attacked him on different parts of the body. Then immediately P.W.1 took her husband to the house and gave native treatment for two days. But, he did not become all right. Then the matter was informed to the accused. The accused also joined P.W.1, and both of them took him to the private hospital at Kalpakanur where he was given initial treatment. But, they were advised to take him to the Government Hospital, Attur. When they took him to the Government Hospital, Attur, the accused instructed her not to reveal about the incident, and she took those words. He was admitted in the hospital and was given treatment by the Doctor. But, they were advised to take him to the Government Hospital, Salem. Accordingly, both of them took the deceased to the Government Hospital, Salem, where despite treatment, he died at 5.30 P.M.
(c) After the death of Thoppalan, all the ceremonies were done, and the body was actually buried. P.W.1 did not go to the police station even after the ceremonies were over. She was advised that it would be fit and proper to go to the police station and give a complaint. Accordingly, after 13 days, she went to the respondent police station and gave Ex.P1, the report, on 10.6.2005, to P.W.16, the Head Constable. On the strength of Ex.P1, the report, a case came to be registered in Crime No.499/2005 under Sections 302 and 201 of IPC. The printed FIR, Ex.P12, was despatched to the Court. A copy of the FIR was also served upon the Tahsildar of Salem.
(d) P.W.17, the Tahsildar, proceeded to the spot. He was informed that the dead body was actually buried. Then in the presence of witnesses, the body was exhumed. He also conducted inquest on the dead body in the presence of witnesses and panchayatdars and prepared Ex.P16, the inquest report. Thereafter, an intimation was given to the hospital authorities for the purpose of autopsy.
(e) On the requisition given, P.W.12, the Professor of Forensic Medicine, Government Mohan Kumaramangalam Medical College, Salem, conducted autopsy on the dead body of Thoppalan. He gave a postmortem certificate, Ex.P6, with his opinion that the deceased died of effects of blunt injury to the abdomen.
(f) On receipt of the copy of the FIR, P.W.18, the Inspector of Police, took up investigation, proceeded to the spot, made an inspection and prepared observation mahazars, Exs.P2 and P3, and also rough sketches, Exs.P18 and P19. Pending the investigation, the accused was arrested on 14.6.2005. Pursuant to the requisition made, his statement was recorded under Sec.164 of Cr.P.C. by the judicial Magistrate. He also gave a confessional statement during police custody. The same was recorded. The admissible part is marked as Ex.P4. He also produced a coconut leafstalk, M.O.1, which was recovered under a cover of mahazar. Then he was sent for judicial remand. On completion of investigation, the Investigator filed the final report.
3.The case was committed to Court of Session, and necessary charges were framed. In order to substantiate the charges, the prosecution examined 18 witnesses and also relied on 19 exhibits and 6 material objects. On completion of the evidence on the side of the prosecution, the accused was questioned under Sec.313 of Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses, which he flatly denied as false. No defence witness was examined. The trial Court heard the arguments advanced on either side and took the view that the prosecution has proved the case beyond reasonable doubt and hence found him guilty and awarded the punishment as referred to above. Hence this appeal at the instance of the appellant.
4.Advancing arguments on behalf of the appellant, the learned Counsel would submit that the prosecution has miserably failed to prove its case; that according to the prosecution, the occurrence has taken place at about 10.00 A.M. on 26.5.2005, and P.Ws.1 and 2 have been examined as eyewitnesses, and they have categorically spoken to the fact that they witnessed the occurrence when the accused attacked the deceased with the coconut leafstalk and thereby he sustained injuries, and he was taken to the house immediately, and treatment was given on the very day, and P.W.7 was the Sidha Doctor who gave him treatment for two days, and he was taken to the Government Hospital, Attur and thereafter to the Government Hospital, Salem, and on 30.5.2005 at 2.00 P.M. P.W.11, the Doctor, has declared him dead; that now, at this juncture, though P.Ws.1 and 2 have claimed that they witnessed the occurrence on 26.5.2005, the complaint was given only after a long period namely on 10.6.2005; that the prosecution does not come forward with any explanation to offer; that further, in the earliest statements which were recorded from these witnesses under Sec.161 Cr.P.C., both P.Ws.1 and 2 have not even whispered any act or the overt act of the accused at all; that insofar as P.W.7, the Sidha Doctor, they have not stated to him about the involvement of the accused, and the Doctor also does not speak about the same; that even the Medical Person attached to the Government Hospital, Attur, has not been examined; that even on 30.5.2005, he was taken to the Government Hospital; that P.W.11 has categorically admitted that he was also out of the hospital, and he got himself discharged even before the treatment was given; and that it would be quite clear that the medical evidence was not at all placed before the Court to corroborate the ocular testimony in that regard.
5.Added further the learned Counsel that even P.W.1 has categorically admitted that she gave a complaint after three days prior to giving Ex.P1, to the Superintendent of Police, and that complaint was not even marked and has been thoroughly suppressed; that all would clearly go to show that the prosecution had not proved its case in any manner known to law; that it is not only a case where the prosecution lacked in evidence, but also there was bereft of evidence, and the trial Court has taken an erroneous view; and that it would warrant an order of acquittal giving the benefit of doubt to the accused.
6.The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made.
7.It is not in controversy that the husband of the deceased by name Thoppalan following the treatment given by P.W.7, the Sidha Doctor, on 26.5.2005, for nearly about two days, was taken to the Government Hospital, Attur, and thereafter, he was taken to the Government Hospital, Salem, where he died. Now P.Ws.1 and 2 would claim that they were the eyewitnesses to the occurrence in which the appellant/accused attacked him with the dry coconut leafstalk, and as a direct consequence, he died. All the available materials when carefully scrutinised, this Court is afraid whether it can sustain the conviction recorded by the trial Court for more reasons than one.
8.Firstly, the occurrence has taken place on 26.5.2005. P.Ws.1 and 2 would claim that they have witnessed the occurrence. If to be so, there could not have been any impediment for bringing the matter to the knowledge of the police immediately. But, for the first time, a complaint was given only on 10.6.2005 to P.W.16, the Head Constable, and that too, 13 days after the death. Neither P.Ws.1 and 2 brought to the notice of the police immediately after the occurrence was over, nor they have brought to the notice of the police even 10 to 12 days after the death of the deceased. This would cast a doubt in view of the delay that was caused. That apart, this doubt becomes strengthened since they have not spoken even a word in their statements given at the earliest to the Investigator and recorded by him under Sec.161 Cr.P.C. Further, the defence was able to show during the evidence of P.W.1 that a complaint was given to the Superintendent of Police, Salem, three days prior to Ex.P1. If the said document was produced before the Court, it should have been the earliest document; but, the same has been suppressed. That would also cast a doubt.
9.Added above all, the prosecution had no medical evidence to offer. As far as P.W.7, the Sidha Doctor, was concerned, he gave initial treatment. But, neither the medical person attached to the Government Hospital, Attur, was examined, nor the medical evidence from that hospital was placed. Even the Doctor examined as P.W.11 from the Government Hospital, Salem, has categorically deposed that he gave initial treatment; but, Thoppalan got himself discharged and went away from the place. Thus, it would be quite clear that he did not have proper treatment, or not even any documentary evidence from the medical side was produced in order to corroborate the ocular testimony of the so-called eyewitnesses namely P.Ws.1 and 2. As far as the other part of the evidence was concerned, they were all nothing but cooked up in order to strengthen the prosecution case if possible. All would go to show that the prosecution has not proved its case in any manner. As rightly pointed out by the learned Counsel for the appellant, the trial Court has taken an erroneous view despite all the infirmities and lacunas found in the prosecution case. It can be well stated that there was thoroughly bereft of evidence. There is nothing to indicate the nexus of the crime with the appellant/accused. Under the circumstances, it is a fit case where the Court has to enter a judgment of acquittal. Accordingly, the judgment of the trial Court has got to be made undone only by upsetting the same.
10.In the result, this criminal appeal is allowed setting aside the judgment of the trial Court. The appellant is acquitted of the charges levelled against him. The bail bond executed by him shall stand terminated. The fine amounts if any paid by him will be refunded to him.
(M.C.,J.) (V.P.K.,J.)
7-12-2009
Index: yes
Internet: yes
nsv
To:
1.The Additional District and Sessions Judge
Fast Track Court No.I
Salem.
2.The Inspector of Police
Attur Police Station
Crime No.499/05
3.The Public Prosecutor
High Court, Madras.
M.CHOCKALILNGAM, J.
AND
V.PERIYA KARUPPIAH, J.
nsv
CRL.A.No.425 of 2009
Dt: 7-12-2009