IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 19.06.20089
CORAM
THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM
AND
THE HONOURABLE MR.JUSTICE C.S.KARNAN
Criminal Appeal Nos.1012 of 2007 and 168 of 2008
1. Devan
2. Dhandapani
3. Arjunan
4. Peruma @ Perumayee
5. Meena
6. Palaniammal .. Appellants in C.A.No.1012 of 2008
7. Muthu @ Muthuraman @
Muthuramalingam .. Appellant in C.A.No.168 of 2009
Vs.
State by
Inspector of Police,
Deevattipatti Police Station,
(Crime No.353/2005) .. Respondent in both the appeals.
These criminal appeals have been preferred under Section 374(2) Cr.P.C. against the judgment of conviction and sentence passed by the learned Additional District & Sessions Judge, Salem made in S.C.No.232 of 2006, dated 24.10.2007.
For Appellants : Mr.Xavier Felix
For Respondent : Mr.N.R.Elango, APP
COMMON JUDGMENT
(The judgment of the Court was delivered by M.CHOCKALINGAM, J.)
These two appeals challenge the judgment of the Additional Sessions Division, Salem made in S.C.No.232/2006 whereby the appellant in Crl.A.No.168/2009 ranked as A4 and the Appellants in Crl.A.No.1012/2007 ranked as A1 to A3, A5 to A7 stood charged, tried and found guilty and awarded punishments as follows:
ACCUSED
CHARGES
FINDINGS
SENTENCES
A-1 and A-2
148 IPC
Guilty
1 year RI each
A-3 to A-7
147 IPC
Guilty
6 months RI each
A-1 to A-3
302 IPC
Guilty
Life imprisonment along with fine of Rs.20,000/- each, in default to undergo 1 year RI each
A-4 to A-7
302 r/w 149 IPC
Guilty
Life imprisonment along with fine of Rs.20,000/- each in default to undergo 1 year RI each.
A-3 and A-6
323 IPC
Guilty
6 months RI each
A-1 and A-2
324 IPC
Guilty
1 year RI each
A-7
323 IPC
Guilty
6 months RI
A-4 and A-5
323 IPC
Guilty
6 months RI each
A-1 to A-7
506(ii) IPC
Not guilty
..
2. The short facts necessary for the disposal of these appeals can be stated as follows:
(a) The deceased Arthanari and A1 are brothers. A2 to A7 are the family members of A1. The deceased and A1 had piece of lands adjacent to each other. There was a ridge in between the two land and there was dispute over the ridge and stones were placed in the ridge which was actually broken and there was quarrel in that regard. Therefore, panchayat was convened on 7.8.2005 at Mariamman temple where the parties participated. At the time of Panchayat, there was an enquiry conducted as to the breaking of the stones on the ridge and also as to ploughing of the land. Both claim that they have ownership and possession and they would plough the land. On the next day i.e., on 8.8.2005 at about 9.30 a.m., when P.Ws were making attempt to plough the land, the same was questioned by the opposite party. Thus, there arose quarrel among them. At that time, the accused constituted unlawful assembly. A1 armed with crow bar, A2 armed with kuduval and A3 armed with lathi attacked the deceased and the prosecution witnesses. A1 attacked the deceased with crow bar on the right hand. A2 attacked the deceased on his head with Kuduval. A3 and others attacked the deceased with sticks and in that process the deceased Arthanari died instantaneously. A1 to A7 ran away from the place of occurrence.
(b) Immediately, P.Ws. 1 to 3 injured were taken to the Government Hospital and P.W.13 examined both P.Ws. 1 and 2 and gave treatment and noticed the injuries as found in Ex.P.22 and Ex.P.21 respectively. Equally, P.W.9 doctor medically examined P.W.3 and noticed the injuries as found in Ex.P.16. On the same day, P.W.13 doctor examined A1 where the injuries are noticed as found in Ex.D1. Equally, A2 and A3 were examined by P.W.14 doctor and the wound certificate in that regard was Ex.P.25 and Ex.P.26 respectively. On receipt of the intimation, the Sub-Inspector of Police recorded the statement made by P.W.1 and registered the case in Crime No.353/2005 at about 11.30 p.m. on 8.8.2005. The express F.I.R. Ex.P20 along with Ex.P1 complaint were despatched to the Court. On the same day, at the instance of A1, a case came to be registered by the same police in Crime No.354/2005 under section 323 and 324 I.P.C.
(c) Investigation was taken up by P.W.15, Inspector of Police. On receipt of the copy of the F.I.R. Ex.P20, Investigating Officer proceeded to the spot, made an inspection in the presence of witnesses and prepared the Observation Mahazar Ex.P9 and drew rough sketch Exs.P27 &P P28. The place of the occurrence along with the dead body were photographed through P.W.6 photographer and the photos and negatives were marked as Exs.P6 and P7 respectively. The Investigating Officer also recovered the material objects, namely sample earth and blood stained earth under a cover of mahazar. Inquest was conducted in the presence of witnesses and panchayatdars and Ex.P29 Inquest report was prepared. Then, the statements of the witnesses were recorded.
(d) On 9.8.2005, A2 appeared before the Village Administrative Officer-P.W.7 and gave confessional statement. The same was recorded in the presence of witnesses. Then, he was taken to the Police Station. P.W.15 Investigating Officer arrested A2 at 12.30 hours on 9.8.2005. He gave confessional statement voluntarily. The same was recorded, pursuant to which, he produced crow bar, Koduval and 5 lathis which were recovered under a cover of mahazar. The other accused were arrested at 16.30 hours on the same day i.e., on 9.8.2005. All the witnesses were examined. The dead body of Arthanari was subjected to post mortem. P.W.10 doctor who conducted autopsy on the dead body of the deceased Arthanari has issued post mortem certificate Ex.P.19 wherein he has opined that the deceased would appear to have died out of shock and haemorrhage due to multiple injuries sustained by him. All the witnesses were examined and their statements were recorded. So far as Crime No.354/2005 at the instance of the accused is concerned, the investigating officer closed the case as one ‘mistake of fact’. After completion of the investigation in Cr.No.353/2005, the final report was filed.
(e) The case was committed to the Court of Sessions. Necessary charges were framed. In order to substantiate the charges, the prosecution examined 15 witnesses and also relied on 30 exhibits and 9 material objects. 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 their evidence on the side of the witnesses and they denied them as false. Three witnesses were examined on the side of the defence, from whom, 13 exhibits were marked. On completion of the evidence on either side, the Court heard the arguments advanced on either side and took a view that the prosecution has proved the case beyond reasonable doubt and convicted the accused and awarded the sentence of imprisonment as referred to above. Hence, these appeals at the instance of the appellants.
3. Advancing the arguments on behalf of the appellants learned counsel made the following submissions.
(a)In the instant case, according to the prosecution the occurrence has taken place at 9.30 a.m. on 8.8.2005. At the time of occurrence, according to the prosecution A1 to A7 constituted unlawful assembly and with a common object of murdering Arthanari, committed the offence of murder and also caused injuries to P.Ws. 1 to 3. Even from the evidence of the witnesses examined on the side of the prosecution who were called eye witnesses, there was a quarrel between the parties and in that process not only P.Ws.1 to 3 were injured but also A1, A2 and A3 were injured. These three injured accused were actually taken to the hospital and were treated and on their arrest they were given treatment by D.W.1 doctor and the other doctor who actually served in prison and the document in that regard were marked as Ex.D1, Ex.P25 and Ex.P.26. When these accused persons were actually injured in the same transaction, the prosecution had no explanation to offer how these injuries were sustained by the accused. There is no whisper in the F.I.R. about Crime No.354/2005 or in the course of investigation recorded by the investigating officer all along. Hence, the injuries sustained by the accused remained unexplained which was fatal to the prosecution case.
(b) Added further learned counsel, the investigating officer has fairly admitted that at the instance of A1, a case came to be registered in Crime No.354/2005 and it is also further admitted that the injuries sustained by A1 to A3 as found in the F.I.R. in Crime No.354/2005 were caused in the course of the same transaction as found in Crime No.353/2005. Hence, the prosecution in its fairness should have placed all the materials before the trial Court for the purpose of proper appreciation of evidence and also to find out the genesis of the occurrence. But in the instant case, not even one record was placed before the Court regarding Crime No.354/2005. When questions were put to Investigating Officer during cross examination, he candidly admitted that it was he who actually investigated Crime No.354/2005. In respect of all questions put to the Investigating Officer in respect of Cr.No.354/3005, he would depose that he must peruse the records only then he could answer and thus, the answers given by the Investigating Officer were not helpful to the trial court to find out the truth or genesis of the prosecution case. In the instant case, as per the prosecution, there was quarrel at the time of occurrence and there was free fight among the parties and the evidence also would indicate the same. Under such circumstances, the prosecution was duty bound to explain the genesis of the occurrence but failed to do so.
(c) Added further learned counsel, the evidence of D.W.1 doctor who was examined on the side of defence would clearly indicate that all these three accused A1 to A3 had sustained number of injuries. A1 sustained injury on his skull but the same remains unexplained. The learned counsel would further submit that in the instant case, the prosecution marched three occurrence witnesses who are also injured witnesses but the prosecution miserably failed to bring to the notice of the trial court about the entire transaction to enable the trial court to make full appreciation of the evidence. The lower Court, instead of acquitting the accused has rendered the judgment of conviction which is erroneous and illegal, hence, the same has got to be set aside by this Court.
4. The Court heard the Additional Public Prosecutor on the above contentions and paid it anxious consideration on the submissions made.
5. It is not in controversy that one Arthanari was done to death in the incident that took place at 9.30 a.m. on 8.8.2005 as alleged by the prosecution. Following the inquest made by P.W.15 Investigating officer, the dead body was subjected to post mortem. P.W.10 doctor who conducted autopsy has categorically opined in the post mortem certificate Ex.P19 as well as a witness before the trial Court that Arthanari died out to shock and haemorrhage due to multiple injuries sustained by him. The fact that Arthanari died out of homicidal violence was never disputed by the accused/appellants before the trial court. Under such circumstances, there is no impediment felt by this Court in recording that the deceased Arthanari died out of homicidal violence.
6. In order to substantiate the charges that there was unlawful assembly constituted by the accused/appellants and in furtherance of the common object, A1 attacked the deceased with crow bar, A2 attacked with koduval and A3 along with the other accused attacked with the sticks on the deceased and also in the course of the same transaction, P.Ws.1 to 3 were also attacked, the prosecution marched number of witnesses and P.Ws.1 to 3 were not only eye witnesses but also injured witnesses.
7. The Court is mindful of the caution made by the Apex Court and also the settled principles of law that in a given case like this when the eye witnesses happen to be the injured witnesses, the evidence of such witnesses should not be discarded unless or until the Court is able to notice a strong circumstance or a reason is brought forth. But in the instant case, the evidence of P.Ws. 1 to 3, though shown as injured witnesses, their evidence cannot be believed for more reasons than one.
8. Admittedly, a case came to be registered by P.W.12 on the complaint given by P.W.1 marked as Ex.P1 at 11.30 a.m. on 8.8.2005 and the F.I.R. was marked as Ex.P20. A perusal of the F.I.R. does not indicate that any one of the accused was injured in the course of the same transaction. Even P.Ws.1 to 3, injured witnesses do not speak about the fact. On the contrary, there was a candid admission by P.W.15 Investigating Officer that a case came to be registered by the Sub Inspector of Police P.W.12 on the strength of the complaint given by the first accused which was registered as Crime No.354/2005 in the same police station and investigation in both the cases were taken up. When questions were raised as to the injuries sustained by A1 to A3 and as to the investigation done, P.W.15 investigating office wanted to make an easy walk over, without giving reasonable answer. He stated that he has to look into all the material records pertaining to the case in Cr.No.354/2005. It is a matter of surprise to note that when the same police has registered two cases, one in Crime No.353/2005 at the instance of P.W.1 and the other in Crime No.354/2005 at the instance of A1, that too, when both the crime numbers had arisen from the same transaction, the prosecution is duty bound to place before the trial Court, all the materials available for the purpose of finding out the genesis to the occurrence and also for the appreciation of the evidence before the trial Court but the prosecution did not produce any one of the records in Crime No.354/2005. Thus, the prosecution did not enable the trial Court to find out the genesis of the occurrence or for proper appreciation of the evidence. Thus, the non-production of the records in Cr.No.354/2005 was fatal to the prosecution case.
9. The strong circumstance in favour the appellants was the non-explanation of the injuries sustained by A1 to A3 at the time of the same transaction. Admittedly, D.W.1 was the doctor attached to the Central Prison, Salem and he has categorically deposed at length that he along with doctor Rajendran medically examined A1 to A3 and have also given certificate under Ex.P1, D25 and P.26 narrating all injuries sustained by them. All would go to show that A1 to A3 sustained injuries at the time of same transaction.
10. It is true that the injuries sustained by A1 to A3, when noticed, are not grievous injuries but simple injuries. Even then, in a case like this, when simple injuries were sustained by the accused, when circumstances warrant, the prosecution is duty bound to explain how those injuries were sustained, when there was free fight between both parties and when the prosecution witnesses and the accused persons were injured. It is to be noted that two cases came to be registered but the prosecution failed to produce any records relating to Crime No.354/2005 registered on the strength of the complaint given by A1. The prosecution did not give any explanation regarding the injuries sustained by the accused in the course of the same transaction which would lead to irresistible conclusion that the prosecution did not enable the trial Court to find out the truth or genesis of the occurrence and for proper appreciation of the evidence placed before it. All would go to show that the accused/appellants are not found guilty of the charges levelled against them. Hence, it would be unsafe to sustain the conviction on such evidence and therefore, the appellants are entitled for acquittal. The lower court, without considering all the aspects, has erroneously found the appellants guilty and hence, the judgment of the lower court has got to be made undone only by upsetting the same.
11. Accordingly, these criminal appeals are allowed, setting aside the conviction and sentence imposed on the appellants by the court below. The appellants are acquitted of the charges levelled against them. The bail bonds if any executed by the appellants shall stand terminated and the fine amounts if any paid by them is ordered to be refunded to them.
vsi
To
1. The Additional District & Sessions Judge,
Salem
2. Inspector of Police,
Deevattipatti Police Station,
Salem District
3.The Additional Public Prosecutor,
High Court,
Madras