IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 19.11.2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.RAJESWARAN CRIMINAL APPEAL NO.734 OF 2007 1.Chinnu @ Chinnusamy 2.Ponniyammal 3.Madhesh 4.Raja .. Appellants Vs. State by Inspector of Police, Marandahally Police Station, Dharmapuri District Crime No.538 of 2005 .. Respondent This criminal appeal has been preferred under Section 374(2) Cr.P.C. against the judgment of the learned Additional Sessions Judge, Dharmapuri made in S.C.No.231 of 2006, dated 30.07.2007. For Appellants : Mr.N.Manokaran For Respondent : Mr.P.Kumaresan, APP - - - - JUDGMENT
(The judgment of the court was delivered by
This appeal challenges the judgment of the Additional Sessions Division, Dharmapuri made in S.C.No.231 of 2006, whereby the appellants herein/Accused Nos.1 to 4 along with 4 others ranked as A-5 to A-8 stood charged as follows:
I Charge – A-1 to A-8 – S.147 IPC
II Charge – A-1,A-3 and A-4 – S.148 IPC
III Charge- A-1 to A-8 – S.341 IPC
IV Charge – A-1 and A-4 – S.324 IPC
V Charge – A-2,A-3,A-5 to A-8- S.324 r/w S.149 IPC
VI Charge – A-1 and A-3 – S.302 IPC
VII Charge- A-2,A-4 to A-8 – S.302 r/w S.149 IPC
VIII Charge A-3 and A-4 – S.302 IPC (2 counts)
IX Charge – A-1,A-2,A-5 to A-8- S.302 r/w S.149 IPC
X Charge – A-2 – S.323 IPC
XI Charge – A-1,A-3 to A-8 – S.323 r/w S.149 IPC
XII Charge- A-3 – S.324 IPC
XIII Charge A-1,A-2,A-4 to A-8- S.324 r/w S.149 IPC
XIV Charge- A-4 – S.352 IPC
XV Charge – A-1 to A-3,
A-5 to A-8 – S.352 r/w S.149 IPC
XVI Charge- A-5 to A-8 – S.336 IPC
XVII Charge A-5 to A-8 – S.337 IPC.
On trial, A-5 to A-8 were acquitted of the charges levelled against them. A-1 and A-3 were found guilty under Section 302 IPC and sentenced to undergo life imprisonment each and to pay a fine of Rs.1000/- each, in default to undergo one year RI each, A-1, A-3 and A-4 were found guilty under Section 324 IPC and were directed to pay a fine of Rs.1000/- each, in default to undergo 6 months RI and A-2 was found guilty under Section 323 IPC and was directed to pay a fine of Rs.500/-, in default to undergo 3 months S.I. and A-1 to A-4 were acquitted of the other charges levelled against them.
2.The short facts necessary for the disposal of this appeal can be stated thus:
a)P.W.1 is the native of Marahandahally. The first deceased is the father and the second deceased is the mother and P.W.2 is the sister of P.W.1. P.W.2 came for child birth and she was in advanced stage of pregnancy. A-1 is the husband of A-2. A-3 and A-4 are the children of A-1 and A-2. The first deceased is the brother of A-2. A-5 is the brother of A-1. A-6 is the wife of A-5. A-7 is the son of A-5 and A-8 is the wife of A-7. The second accused had a long pending dispute over the sharing of land with the family of the deceased. There were proceedings before the civil court.
b)On 1.12.2005, P.W.1 went to the land for watering and there was no electric energy and hence he was waiting and thereafter, at about 2.00 p.m. he was watering. At that time, all the accused came over there. It was A-1 and A-2 who prevented P.W.1 from ploughing the land. At that time, P.W.1 replied that it was their family land and therefore, he could do so. Immediately, it was A-4 who attacked P.W.1 with stick. Further, A-1 also attacked P.W.1 with stick. On seeing the same, the first deceased Murugan came and A-1 and A-4 attacked him. A-3 attacked the second deceased Palaniammal and A-5 also attacked her. The sister of P.W.1 was also attacked by A-4, A-6, A-8 and A-2. All the accused fled away from the place of occurrence.
c)The father and mother of P.W.1 were taken to the hospital. On the way, again the accused restrained them and it was A-5 who attacked P.W.3 on his head. P.W.3 was also taken to the hospital. All went to Palacode Government Hospital, where they were given treatment by P.W.14, the Doctor. Palaniammal was first medically examined by P.W.14, the Doctor, who has issued Ex.P.17, the accident register. He also medically examined Murugan and has issued Ex.P.18, the accident register. P.W.1 was treated by P.W.14, who has issued Ex.P.19, the wound certificate. P.W.2 was also medically examined and Ex.P.20, wound certificate was issued. P.W.14, the Doctor examined P.W.3 and has issued Ex.P.21, the wound certificate. A-1 was also taken treatment and his wound certificate was marked as Ex.P.22. Ex.P.23 wound certificate was marked in respect of the second accused. A-3 was also medically examined and his wound certificate was marked as Ex.P.24. The wound certificate in respect of A-4 was marked as Ex.P.25. A-6 was also medically examined by P.W.14, the Doctor, who has issued Ex.P.26, the wound certificate.
d)On information from the hospital, it was P.W.13, the Sub Inspector of Police, who went to the hospital on 02.12.2005 and recorded the statement of P.W.1. On the strength of Ex.P.1, the complaint, he registered a case in Crime No.538 of 2005 under Sections 147, 148, 341, 323 and 324 IPC. Ex.P.16, the F.I.R. was sent to the court. Further, on the complaint given by the first accused at the hospital, P.W.13 also registered a case in Crime No.539 of 2005 under Sections 147, 148, 341, 324 and 323 IPC.
e)After treatment, the first and second deceased were taken to Dharmapuri Government Hospital, where they were taken treatment from 1.12.2005 to 04.12.2005. Thereafter, due to serious condition, both were taken to Salem Government Hospital, where they died on 6.12.2005 and 7.12.2005 respectively.
f)P.W.18, the Inspector of Police, on receipt of the copy of the FIR, took up the investigation of both the cases. He proceeded to the spot and made an inspection in the presence of the witnesses. He prepared Exs.P.4 and P.28, the observation mahazars and Exs.P.29 and 30, the rough sketches. He examined the witnesses and recorded their statements. On receipt of the intimation that the first deceased died at Salem Government Hospital on 06.12.2005, he amended the FIR into Section 302 IPC and Ex.P.31, the amended report was despatched to the Court. Further, he went to the hospital and conducted inquest on the dead body of the first deceased in the presence of the witnesses and panchayatdars and prepared Ex.P.32, the inquest report. He also received an intimation that the second deceased also died at the hospital on 07.12.2005 and altered the FIR into Section 302 IPC. Ex.P.33, the amended report was despatched to the Court. He conducted inquest on the dead body of the second deceased in the presence of the witnesses and panchaytdars and prepared Ex.P.34, the inquest report. Then, the dead bodies of both the deceased were sent for the purpose of autopsy.
g)P.W.12, the Doctor attached to the Government Hospital, Salem, on receipt of the requisition, has conducted post-mortem on the dead body of the first deceased Murugan and has issued Ex.P.15, the post-mortem certificate, wherein he has opined that the deceased would appear to have died of shock and haemorrhage due to the injuries sustained. P.W.16, the Doctor attached to the Government Hospital, Salem, on receipt of the requisition, has conducted autopsy on the dead body of Palaniammal and has issued Ex.P.27, the post-mortem certificate, wherein she has opined that the deceased would appear to have died of shock and haemorrhage due to the injuries sustained.
h)Pending investigation, P.W.18 arrested A-1, A-4, A-5 and A-8 on 10.12.2005 and they came forward to give confessional statement voluntarily, which were recorded in the presence of the witnesses and the material objects were also recovered under a cover of mahazar. They were sent for judicial remand. A-2 and A-6 were also arrested and were sent for judicial remand. All the material objects recovered were subjected to chemical analysis by the Forensic Science Department, which resulted in Ex.P.10, the Chemical Analyst’s report and Ex.P.11, the Serologist’s report. On completion of the investigation in Crime No.538 of 2005, the Investigating Officer has filed the final report. So far as Crime No.539 of 2005 was concerned, this was referred to as mistake of fact.
3.The case was committed to the Court of Sessions and necessary charges were framed. In order to substantiate the charges levelled against the accused, the prosecution examined 18 witnesses and also relied on 36 exhibits and 8 M.Os. On completion of the evidence on the side of the prosecution, the accused were questioned under Section 313 Cr.P.C. as to the incriminating circumstances found in the evidence of prosecution witnesses, which they flatly denied as false. No defence witness was examined, but only one document was marked. The trial court, on hearing the submissions made on either side and looking into the materials available, has found A-1 to A-4 guilty as stated above and awarded punishments as referred to above and A-5 to A-8 were acquitted of the charges levelled against them.
4.Advancing arguments on behalf of the appellants, the learned counsel has made the following submissions:
a)In the instant case, admittedly the occurrence has taken place at about 2.00 p.m. on 1.12.2005. The prosecution has examined P.Ws.1,2 and 3 as eyewitnesses. According to the prosecution, all those were also injured in the occurrence. P.Ws.1 and 2 are brother and sister and they are the children of the deceased Nos.1 and 2. P.W.3 is also close relative. The first and foremost circumstance which stood against the prosecution case was that a case was registered at the instance of A-1 on 2.12.2005. When the first case was registered by P.W.13, the Sub Inspector of Police, there was a delay of 23 hours. Secondly, the case was altered to Section 302 IPC on 08.12.2005 on the death of the first deceased on 06.12.2005 and the second deceased on 07.12.2005. Though the case was altered to Section 302 IPC on 08.12.2005, all the case records reached the court only on 29.12.2005, but the prosecution had no explanation for this delay in any way.
b)Admittedly, there was a land dispute between the family and two suits were filed. One has been filed by A-1 and A-5 in OS.No.435 of 1995 for declaration and the other one by A-2 in OS No.468 of 1995 for partition. Both the suits were actually decreed. Thus, at that time, it has been declared that the lands in question belonged to the accused party. Despite the same, P.W.1 along with the deceased Nos.1 and 2 criminally trespassed into the land and attempted to plough the same. Naturally, the accused party questioned the same. Thus, it would clearly indicate that P.W.1 and the deceased were the aggressors.
c)Further, at the time of occurrence, except these three witnesses, the prosecution had two independent witnesses, namely one Swaminathan and Ganesan. Though their names were found in the memo of evidence, they were not examined by the prosecution for the reasons best known to them. Hence the non examination of those independent witnesses was fatal to the prosecution. Both the deceased were taken first to Palacode Government Hospital, where they were given first aid and were treated by P.W.14, the Doctor, who has also treated P.Ws.1,2 and 3 and also accused Nos.1,2,3,4 and 6 and the accident registers were also marked by the prosecution. Thereafter, both the deceased were taken to Dharmapuri Government Hospital. At this juncture, it is pertinent to point out that from the evidence of P.W.14, it would be quite clear that when he examined the second deceased Palaniammal, he found a sutured wound, but it was not explained to him as to when and by whom that suture was actually given. Under these circumstances, there was previous treatment given to her and those documents were suppressed. Thereafter, they were taken to the Government Hospital, Salem and were given treatment from 04.12.2005. The first deceased died on 06.12.2005 and the second deceased died on 07.12.2005. Insofar as the treatment given at Salem Government Hospital, no documents were placed before the court and thus, the cause of death remained unknown till the end.
d)Apart from that at the instance of the first accused, a case came to be registered in Crime No.539/2005 at the very same time. The investigator has not investigated that case at all, but he has referred the same as mistake of fact. Under what circumstance the case came to be referred to as mistake of fact was not explained. Neither F.I.R. nor Section 161 Cr.P.C. statements nor the relevant records were not filed before the court. Thus, the prosecution did not allow the court to find out the truth or otherwise of the case. Under these circumstances, the prosecution has miserably failed to prove its case. The lower court has not considered any one of the above aspects stated above, but has found the appellants guilty and hence they are entitled for acquittal in the hands of this court.
5.The court heard the learned Additional Public Prosecutor on the above contentions and has paid its anxious consideration on the submissions made.
6.It is not in controversy that the occurrence has taken place at about 2.00 p.m. on 1.12.2005, in which the deceased Nos.1 and 2, P.Ws.1,2 and 3 and A-1, A-2, A-3, A-4 and A-6 were also injured. Following the occurrence, the deceased Nos.1 and 2 and P.Ws.1 to 3 were originally taken to Palacode Government Hospital, where they were given initial treatment. Thereafter, till 04.12.2005, the deceased Nos.1 and 2 were given treatment at the Government Hospital, Dharmapuri and thereafter, they were taken to the Government Hospital, Salem. It is not in dispute that both the deceased Nos.1 and 2 died on 6.12.2005 and 7.12.2005 respectively. Following the inquest, both the dead bodies were subjected to post-mortem by P.W.12 and P.W.16, the Doctors respectively, who have issued post-mortem certificates, wherein they opined that both the deceased died out of homicidal violence. Thus, they died out of homicidal violence cannot be the fact which could be disputed and hence it has got to be recorded so.
7.In the instant case, in order to substantiate the case of prosecution, it has examined P.Ws.1,2 and 3, who were all injured witnesses, according to the prosecution. The court is mindful of caution made by the settled proposition of law that in a given case like this where the occurrence witness has been examined as injured witness, his evidence should not be discarded unless or until a strong circumstance is noticed by the court. In the instant case, number of circumstances are found against the prosecution, which could be narrated as follows.
8.The occurrence has taken place on 1.12.2005 at 2.00 p.m., in which P.Ws.1,2 and 3 and the deceased Nos.1 and 2 were injured. Equally, A-1, A-2, A-3, A-4 and A-6 were also injured. It was P.W.14, the Doctor attached to the Government Hospital, Palacode who has treated all of them and has given accident registers as referred to above. It is pertinent to point out that the deceased Nos.1 and 2 were taken to the Government Hospital, Palacode immediately, where P.W.14 has medically examined them. When the second deceased Palaniammal was medically examined, P.W.14 found sutured wound on her head. According to P.W.14, no explanation was coming forth as to by whom she had been sutured. The prosecution was unable to explain the same and it passes in a reasonable mind that it was the earliest document. Thus, the document for the said suture was not forthcoming to the court.
9.Further, in the instant case, at the time of occurrence, apart from the three witnesses, namely P.Ws.1 to 3, there were two independent witnesses, who are Swaminathan and Ganesan. But, both the witnesses were not examined before the court. Since P.Ws.1 to 3 were interested witnesses, those independent witnesses could speak the truth. But, the non examination of those witnesses, in the considered opinion of the court, has affected the case of the prosecution.
10.Apart from that, when the deceased Nos.1 and 2 were taken to the Government Hospital, Salem, they were given treatment from 4.12.2005 till the death of both the deceased, namely 06.12.2005 and 07.12.2005 respectively. But, the documents and records pertaining to their treatment were not filed nor any Doctor was examined in this regard. Thus, as rightly pointed out by the learned counsel for the appellants, the cause of death remained unknown till the end.
11.The added circumstance is that a case was originally registered at the instance of P.W.1 on 02.12.2005 under Section 324 IPC and the other provisions in Crime No.538 of 2005 and the first and second deceased died on 6.12.2005 and 7.12.2005 respectively and on intimation, the case was altered to Section 302 IPC on 06.12.2005 and 08.12.2005 respectively. Apart from that, though the case was altered to Section 302 IPC on 08.12.2005, the FIR, the statements under section 161 Cr.P.C. and also the records pertaining to the case reached the court only on 29.12.2005, i.e. nearly about 20 days after the amendment of the FIR. In a serious crime like this, the court is at a loss to understand as to how the Investigator placed all the records before the court after a delay of 20 days and all manipulations were possible within the said interval. It is not in controversy that the same Police Officer has actually taken up investigation in Crime No.539 of 2005 at the instance of the first accused. The accused were also sent for medical examination and wound certificates have also been filed. Admittedly, it was a case and counter and when in a particular transaction, one case was registered at the instance of P.W.1 in Crime No.538 of 2005 and the other in Crime No.539 of 2005 at the instance of the first accused, all the records pertaining to both the cases must be placed before the court for correct and proper appreciation of the entire factual positions. But, in the instant case, the prosecution has not filed the FIR, the statements under Section 161 Cr.P.C. or the connected records pertaining to Crime No.539 of 2005. Hence it could be well commented that the prosecution did not enable the court to appreciate the truth or falsity of the case what was placed before the court. Under these circumstances, in a given case like this where A-1, A-2, A-3, A-4 and A-6 were also injured in the course of the same transaction and when the case was also registered, the non presentation of those documents before the court would certainly affect the prosecution case. Hence in view of the circumstances noticed by the court as recorded above, it would be highly unsafe to sustain the conviction imposed by the trial court. Without appreciation of any one of the factual or legal positions, the trial court has taken an erroneous view, which has got to be made undone only by upsetting the same.
12.Accordingly, this criminal appeal is allowed, setting aside the judgment of conviction and sentence imposed on the appellants by the trial court. The appellants herein are acquitted of the charges levelled against them. The appellants 1 and 3/the accused Nos.1 and 3, who are in jail, are directed to be released forthwith unless their presence is required in connection with any other case. The fine amounts if any paid by the appellants shall be refunded to them.
1.The Additional Sessions Judge,
2.The Inspector of Police,
Marandahally Police Station,
3.The Additional Public Prosecutor,