IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 26/07/2005
Coram
THE HON'BLE MR. JUSTICE N.DHINAKAR
and
THE HON'BLE MR. JUSTICE M.CHOCKALINGAM
CRL.A. No.566 of 1999
State by
Public Prosecutor,
High Court, Madras. ... Appellant
-Vs-
1.Palani
2.Kandan
3.Velu
4.Munusamy
5.Lakshmanan
6.Chinnathambi
7.Durai
8.Murugan
9.Rajavelu
10.Raman
11.Ramasamy
12.Balakrishnan
13.Subramani
14.Kutta Velu
15.Veerasamy ... Respondents
Criminal Appeal filed under section 374 of the Code of Criminal
Procedure against the judgment passed by the I Additional Sessions
Judge-cum-Chief Judicial Magistrate, Krishnagiri in S.C.No.109 of 1990 dated
01.04.1999.
!For Appellant .. Mr.S.Jayakumar,
Addl. Public Prosecutor
^For Respondents .. Mr.R.Sankarasubbu
:JUDGMENT
(Judgment of the Court was delivered by
M.CHOCKALINGAM, J.)
Aggrieved over the judgment of the Court of Session, Dharmapuri in
Sessions Case No.109 of 1990, acquitting all the respondents, who are 15 in
number, the State has brought forth this appeal. The respondents/accused 1 to
15 stood charged and tried as follows :
Accused 1 to 15 were charged under Sections 148, 449 and 396 of the
Indian Penal Code.
Accused 1 was charged under Section 302 of the Indian Penal Code.
Accused 2 to 15 were charged under Section 302 read with 149 of the
Indian Penal Code.
Accused 1 to 3, 6, 7 and 9 were charged under Section 395 read with
397 of the Indian Penal Code.
Accused 1 to 3, 5 to 7, 11 and 12 were charged under Section 342 of
the Indian Penal Code.
Accused 1, 2, 5, 11 & 12 were charged under Section 427 of the Indian
Penal Code.
Accused 1 to 3, 5 to 7 11, 12 were charged under Section 342 ( 2
counts) of the Indian Penal Code.
Accused 1 and 2 were charged under section 324 of the Indian Penal
Code.
All the accused were acquitted of all the charges levelled against them.
2. The short facts necessary for the disposal of this appeal can be
stated thus :
(a) P.Ws.1 and 2 are the sons of the deceased Sengoda Gounder. P.W.3
is the wife of the deceased. All the prosecution witnesses were residing at
Mariampatti. The accused belong to a nearby village Karuvelampattu. There
had been a long standing enmity between the families of the deceased and the
accused for about more than two decades. Sengoda Gounder owned 20 acres of
land near the lands belonging to accused 1, 2, 4 and 5. Sengoda Gounder, in
order to go to his land, has to necessarily go through the land of the
accused. When the tractor belonging to Sengoda Gounder went by that way in
the year 1985, it was prevented and when the family members of Sengoda Gounder
questioned the accused, they were assaulted. A criminal case was pending on
the file of the Judicial Magistrate, Harur. On the other occasion, in the
year 1988, the tractor driver of Sengoda Gounder and P.W.2 were also assaulted
and a criminal case was also initiated in this regard and the same is pending.
Accused 1 and 2 tried to purchase the lands of one Thottammal and Lingammal,
but their intention did not fructify. The accused thought that it was only at
the instigation of the prosecution parties, they could not purchase those
lands and all these let to inimical terms between the parties.
(b) On 20.01.1989 at about 08.00 pm when P.Ws.1 and 2 were watching
television and P.W.3 was in the main hall of the house and Sengoda Gounder was
also in the kitchen, all the accused armed with deadly weapons came into the
house and called the inmates of the house. When they came outside, the first
accused attacked P.W.3 with knife on her head and hand. Accused 2 attacked
with an iron rod on the legs of P.W.3. Accused 2, 6 and 7 attacked the
deceased with crow bar. Accused-1 cut the deceased on the head with knife.
Accused 1 also attacked P.W.1 with an aruval on his head and on the left hand.
Accused 2 and 6 beat with an iron rod on P.W.1’s right hand. Accused 2 and 6
with an iron rod attacked on P.W.1’s right hand. They chased P. W.2, but
P.W.2 went out by climbing over the rice bags and by removing the tiles in the
roof of the house. P.W.1, the deceased, and P.W.3 were tied by the accused
with ropes. Muthu Gounder, the father of the deceased and Periakka, the
mother of the deceased were also attacked by the accused. The accused took
the almirah key from P.W.3 and opened it and took away the jewels and money
from there. They also damaged the television, telephone and other valuable
articles. Sengoda Gounder and the other witnesses could not move as they were
tied. P.W.2, who ran away from the house met P.W.4 and informed about the
situation and in his cycle they went to Kambainallur police station. There, a
police constable, who was not conversant with Tamil was alone available.
Therefore, he could not give anye information to the police constable. P.W.2
returned home by taking a jeep, which was in front of the police station.
P.W.2, on finding his parents and brother tied, untied them and took all the
injured witnesses to the Government Hospital, Dharmapuri and they reached
there at 09.40 pm.
(c) P.W.12, the doctor attached to the Government Hospital,
Dharmapuri, medically examined Sengoda Gounder at about 09.00 pm and found the
following injuries on him :
1.A lacerated injury left leg near knee of 2 cm x 1 cm x muscle deep.
2.A lacerated injury left leg of 2 cm x 1 cm x muscle deep 10 cm from injury
1.
3.A lacerated injury left leg near ankle of 2 cm x 1 cm x muscle deep.
4.A lacerated injury right leg of 2 cm x 2 cm muscle deep.
5.A lacerated injury left side forehead of 3 cm x 2 cm x bone depth.
6.A lacerated injury near left eyebrow of 5 cm x 3 cm x bone depth.
7.A contusion left forearm of 15 cm x 4 cm x skin colour.
8.A contusion over the upper lip of 5 cm x 3 cm x skin colour with missing
teeth.
9.C/o pain abdomen.
10.A lacerated injury in the parietal region of 2 cm x 3 cm x bone depth.
He issued Ex.P.57 a copy of the accident register. The doctor also examined
P.W.1 at 09.50 am and has issued a wound certificate, Ex.P.24 , wherein he has
noted the following injuries:
1. A lacerated injury left elbow of 3 cm x 2 cm x skin depth.
2.A contusion right elbow and forearm of 10 cm x 5 cm x skin colour.
3.A lacerated injury right occipito-parietal region 5 cm x 2 cm x skin depth.
4.A contusion left lateral Malleolus of 5 cm x 3 cm x skin colour.
5.A contusion centre of back 10 cm x 3 cm x skin colour.
At 10.00 pm, P.W.12 examined Periakkal, the mother of the deceased for her
injuries and found the following injuries on her person:
1.A lacerated injury right thumb of 5 cm x 3 cm x skin depth.
2.A lacerated injury right forearm of 5 cm x 2 cm x skin depth.
3.A contusion right leg of 10 cm x 3 cm x skin colour.
4.A contusion left elbow of 5 cm x 3 cm x skin colour.
He issued wound certificate, Ex.P.25. Thereafter, at 10.20 pm, the doctor
examined Muthu Gounder and found the following injuries on him, which he had
marked in Ex.P.26:
1. A lacerated injury right forehead of 10 cm x 1 cm x bone depth.
2.A lacerated injury left side forehead 10 cm x 2 cm x bone depth.
3.A lacerated injury left side parietal region of 10 cm x 3 cm x bone depth.
4.A lacerated injury left thigh of 3 cm x 2 cm x skin depth.
5.A contusion right forearm of 5 cm x 3 cm x skin colour.
P.W.3 was examined by the doctor 10.45 pm and a wound certificate Ex.P.27 was
issued narrating the injuries found on her:
1.A lacerated injury centre of parietal region of 10 cm x 2 cm x bone depth.
2.A contusion right knee of 5 cm x 3 cm x skin depth.
(d) On intimation from the hospital, a constable Ramasamy attached to
Kambainallur Police Station went to the Government Hospital and recorded the
statement of P.W.1. Ex.P.1 is the said statement. In the meantime, Sengoda
Gounder, who was undergoing treatment succumbed to the injuries. On the
strength of Ex.P.1, a case in crime No.4/89 came to be registered for the
offences punishable under sections 147, 448 , 323, 324, 325, 307 and 302 of
the Indian Penal Code. Express reports were prepared. The printed first
information report, Ex.P.39 was sent to Court.
(e) P.W.16, the Inspector of Police took up investigation in the case
and proceeded to the Government Hospital, Dharmapuri. There he conducted
inquest over the dead body of the deceased in the presence of the witnesses
and panchayatdars between 05.30 am and 08.30 am and prepared Ex.P.40 inquest
report. After the completion of inquest he issued a requisition, Ex.P.29 to
the doctor for conducting postmortem.
(f) Immediately after issuing requisition P.W.16 went to the place of
occurrence. He summoned the finger print experts to the place of occurrence.
He reached the place of occurrence at 09.00 am and in the presence of
witnesses he prepared an observation mahazar, Ex.P.2 and drew a rough sketch,
Ex.P.41. He seized M.Os.19 to 21, which were produced by P.W.10, the finger
print expert, under a mahazar, Ex.P.3. The broken articles in the house of
the deceased, M.Os.1 to 6 were recovered from the scene of occurrence under a
mahazar, Ex.P.4. The other material objects No.22 to 27 were also seized
under a mahazar, Ex. P.5.
(g) P.W.13, the doctor attached to the Government Hospital,
Dharmapuri, pursuant to the requisition, Ex.P.29, conducted autopsy on the
body of the deceased at 10.30 am and found the following injuries on the body
:
1.A Sutured wound on the left side of forehead crossing midline 3 cms long.
2.A sutured wound above left eye brow 5 cms long.
3.Two abrasions right side face 2 cms x 1 cm each.
4.A sutured wound in left parietal region 3 cms.
5.A contusion in upper lips 3 x 2 cms.
6.Two linear abrasions in right shoulder 3 x + cm each.
7.A diffused contusion in left forearm 15 cms x 12 cms.
8.A sutured wound below left knee 2 cms long.
9.Sutured wound left leg mid 1/3, 2 cms long.
10.A sutured wound in left leg near ankle 2 cms.
11.Sutured wound right leg mid 1/3 2 cms.
12.Central, lateral, incisor – upper jaw missing with laceration of gum
margins/cavities filled with blood clot.
He issued Ex.P.30 postmortem certificate with his opinion that the deceased
would appear to have died of shock and haemorrhage due to head injury.
(h) On 22.01.1989 P.W.16 went the Government Hospital, Dharmapuri and
examined the injured witnesses. He came to know that on 04.02.1989 accused 1,
2, 3 and 6 surrendered before the Judicial Magistrate, Salem. Accused 4 and 5
were arrested on 04.02.1989 at 12.30 pm. At that time they voluntarily gave
confessional statements, the admissible portions of such statements stood
marked as Exs.P.6 and 42. Pursuant to the admissible portions of the
confession statements, accused 4 and 5 produced iron pipes, M.Os.29 and 30,
which were recovered under mahazar, Ex.P.5. On 08.02.1989 accused 1 to 3 and
6 were taken to police custody. All the accused joined together and gave a
confession. The admissible portion of the said confession is marked as
Ex.P.43. Pursuant to Ex.P.43, the weapons, M.Os.7 to 11, 14 and 31 were
seized under a mahazar, Ex.P44. Accused 14 was arrested on 13.02.1989 at
06.30 am and he gave a confession statement, the admissible portion stands
marked as Ex.P.8. Pursuant to Ex.P.8, iron pipe, M.O.28 was produced, which
was seized under a Ex.P.9 mahazar. On 15.02.1989 at 08.30 pm accused 7, 8,
and 9 were arrested. Accused 7 gave a confession statement, the admissible
portions are marked as Exs.P.45, P.47 and P.48 respectively. Accused 10 was
also arrested and he also gave a confession statement, the admissible portion
is marked as Ex.P.49. All these accused produced M.O.15 aruval, and the money
taken from the house of the deceased, M.Os.33, 34, 35, iron rod, M.O.12 were
seized under mahazars, Ex.P.50 and P.51. Accused 9 was also arrested at 11.30
pm and he produced M.Os.36, 37 money and M.O.13 crow bar, which were seized
under a mahzar, Ex.P.52. Accused 10 produced some money, M.O.38 and iron
pipe, M.O.39 under a mahazar, Ex.P.53. Accused 11 was arrested on 10.03.1989
and pursuant to the admissible portion of the voluntary statement given by
him, Ex.P.54, he produced M.O.41 iron rod, M.O.42 and 43 money and stamp
papers, which were seized under a mahazar, Ex.P.56. The material objects
recovered from the place of occurrence, from the dead body of the deceased and
pursuant to the confession statement given by the appellants were all
subjected to chemical analysis. The reports of the chemical analyst are
Exs.P.35 and P.36 and the reports of the Serologist are Exs.P.37 and P.38. On
completion of the investigation final report was filed by the Investigating
Officer on 25.10.1989. The case was committed to the Court of Session and
necessary charges were framed as mentioned above.
3. In order to substantiate the charges levelled against the
appellants/accused, the prosecution marched 16 witnesses and relied on 59
exhibits and 44 material objects. On completion of the evidence on the side
of the prosecution, all the accused were questioned under Section 313 of the
Code of Criminal Procedure as to the incriminating circumstances found in the
evidence of the prosecution witnesses, and they flatly denied the same as
false. No witness was examined on their side. The report of the finger print
expert is marked as Ex.D1. After hearing both sides, the trial Court was of
the opinion that the prosecution has not proved its case beyond all reasonable
doubts and found the accused not guilty and acquitted all of them. Hence, the
appeal by the State.
4. Learned counsel for the State, inter alia, would submit that in
the instant case the injured witnesses are examined as P.Ws.1 and 3. They
have thoroughly narrated the occurrence. Immediately after the occurrence the
injured witnesses and the deceased were taken to the hospital, where P.W.1
gave a statement on the basis of which a case came to be registered. All the
accused at the time of arrest have given confession statements, pursuant to
which the weapons and the money and other valuable materials connecting the
accused with the crime have also been recovered by the investigation.
5. Added further the learned counsel for the State that all these
injured witnesses were medically examined and their wound certificates have
been produced before the Court, where they have clearly stated as to who
attacked them.
6. The learned counsel would also submit that the trial Court has
acquitted all the accused on filmy grounds, which should not have been given
any weight at all. Under the circumstances, the judgment of the trial Court
has to be set aside and the appellants have to be dealt with in accordance
with law.
7. The Court heard the learned counsel for the respondents on the
above contentions.
8. It is not in controversy that Sengoda Gounder, P.Ws.1 and 3 were
attacked at the time of occurrence. Apart from that Periakka and Muthu
Gounder were also attacked and they were taken to the hospital and wound
certificates have also been produ before the Court. It is also evident from
the evidence of P.W.13, the doctor, who conducted postmortem on the body of
Sengoda Gounder and from Ex.P.30 postmortem certificate issued by him that
Sengoda Goudner died on account of the injuries sustained by him at the time
of the occurrence and the injured sustained injuries at the time of the
occurrence. Hence, it can be safely held so.
9. It is the case of the prosecution that on the date of the
occurrence at 08.00 pm P.Ws.1 to 3 and the deceased were in their house. All
the accused armed with deadly weapons came inside their house and attacked
Sengoda Gounder and other witnesses, caused damages to the articles and fled
away from the place of occurrence. It has to be pointed out at this stage
that according to P.W.2, while the occurrence was going on, he ran away from
the house by removing a tile of the roof and he met P.W.4 on his way and he
and P.W.4 went to the police station, where he could not give a report about
the occurrence to the constable, since the constable was not conversant with
Tamil. But this version was falsified by the version of P.W.4. According to
P.W.4, he accompanied P.W.2 in a cycle and they went to Kambainellur Police
Station, where a police constable was available to whom P.W.2 gave the details
of the crime and that was recorded. This evidence of P. W.4 contradicts the
evidence of P.W.2.
10. According to the prosecution, a case came to be registered on the
strength of Ex.P.1, report given by P.W.1 at the Government Hospital at 11.30
pm to a police constable Ramasamy. From the evidence of P.W.4, it would be
quite clear that a statement was recorded by the constable in the police
station even before Ex.P.1 was recorded in the hospital. But that statement
is not placed before the Court. In such circumstances, a duty is cast upon
the prosecution to examine the Constable Ramasamy, who according to the
prosecution, recorded the statement, Ex.P.1 at the hospital from P.W.1, but he
was not examined and thus it casts a doubt whether Ex.P.1 produced before the
Court was the earliest document, which came into existence.
11. The second circumstance, as rightly pointed out by the Sessions
Judge, was the statement given by P.W.1 to doctor, P.W.12, which is the
earliest version about the occurrence. P.W.12 has recorded in the wound
certificate, Ex.P.24 issued in respect of the injuries found on P.W.1 that
P.W.1 has stated that he was attacked by unknown persons. It is seen that
P.W.1 was a college student and admittedly he knew the accused all along. Had
it been true that P.W.1 and other witnesses were attacked by known persons and
particularly the accused, with whom they had long standing enmity, there was
no impediment for P.W.1 to give the names of the accused, but he has not done
so. This also casts a doubt on the case of the prosecution.
12. The next circumstance is that the finger print expert was called
by the Investigating Officer to the scene of occurrence, who also came to
there and has also given a report. The finger print expert, who gave the
report was examined as P.W.10. His report, though not marked by the
prosecution, was marked by the defence as Ex.D1. A reading of Ex.D1 report
would clearly reveal that he was called to examine the finger prints available
at the scene of occurrence, since the accused were not known. This would
clearly indicate that at the time of investigation on the next day of the
occurrence, the Investigating Officer did not know as to who were the
assailants. This throws much doubt on Ex.P.1 complaint alleged to have been
given at 11.00 pm by P.W.1 to the Constable.
13. It is also pertinent to note that Muthu Gounder, who was also
injured at the time of occurrence, according to the prosecution, was not
examined as he died two months prior to the date on which P.W.1 gave evidence
in court. Ex.P.57, the copy of the accident register in respect of the
injuries found on Muthu Gounder was marked in Court and the original when
disputed was called for after a period of ten years from the hospital, but it
is pertinent to point out that there is a discrepancy with regard to an inter
lineation, which was available in the original, but was not in the copy and
this would cast a doubt whether the said Muthu Gounder was attacked at all at
the time of the occurrence.
14. It is also to be noted that P.W.3 has even informed to the doctor
that she was attacked by an iron rod and hence she gave evidence that she was
attacked by iron rod. But the medical evidence did not support her evidence.
15. In the instant case since Ex.P.1 is doubtful and injured witness
P.W.1 has stated to the doctor that he was attacked by unknown persons and the
summoning of the finger print experts to the scene of occurrence by the
Investigating Officer to find out the culprits would all indicate that all is
not well with the case of the prosecution.
16. Under the circumstances, the benefit of doubt to which accused
are entitled to, has to be given to them and it was accordingly given to them
by the lower Court. The lower Court has rightly found that the prosecution
has not proved its case beyond all reasonable doubts and therefore, the
judgment of the trial Court has to be sustained and it is accordingly
sustained. The appeal fails and it is accordingly dismissed.
Index: Yes
Internet:Yes
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To
1.The I Additional Sessions Judge-cum-
Chief Judicial Magistrate, Krishnagiri.
2.-do- through the Principal Sessions Judge,
Krishnagiri.
3.The Judicial Magistrate, Harur,
Dharmapuri District.
4.The Inspector of Police,
Kambainallur Police Station,
Dharmapuri District.
5.The Public Prosecutor,
High Court, Madras.