IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATE : 06.08.2007
CORAM:
THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN
Crl. R.C. No.941 of 2005
Kittusamy ..Revision Petitioner
Vs.
1. The Inspector of Police
Alahgiyam Police Station
Dharapuram Taluk
Erode Dsitrict.
(Cr.No.28/2001)
2. Panneerselvi
3. Manikandan ..Respondents
Prayer:
This revision has been preferred against the
judgment dated 25.2.2005 made in S.C.No.47 of 2004 on the
file of the Additional Sessions Judge, Dharapuram.
For Petitioner : Mr.M.M.Sundresh
For Respondents : Mr.V.R.Balasubramaniam, Additional Public Prosecutor (for R1)
Mr.C.S.K.Sathish (for R2 to R3)
ORDER
This revision has been preferred against the judgment
in S.C.No.47 of 2004 on the file of the Additional Sessions
Judge, Dharapuram, by the complainant. The charge sheet was
filed against A1 & A2 under Section 307 & 323 IPC.
2.The learned Judicial Magistrate, Dharapuram, after
furnishing the copies to the accused under Section 207 of
Cr.P.C., on his appearance on summons, had committed the
case to the Court of Sessions under Section 209 of Cr.P.C.
3.On appearance of the accused, the learned Trial Judge
had framed the charges under Section 307 & 323 IPC and when
questioned the accused pleaded not guilty. On the side of
the prosecution, P.W.1 to P.W.8 were examined and Ex.P.1 to
Ex.P.7 were marked. No material objects were marked before
the Trial Court.
4.P.W.1 is an injured witness. According to him, due
to previous enmity in respect of bailing water from the
common well on 28.3.2001 at about 11.00 pm he along with his
brother went to the land and when they were irrigating the
land, the accused came there and stopped the motor. When
this was questioned by P.W.1, A1 had assaulted him on the
back with stone and A2 also assaulted him on the back with
stone and another accused Rani had assaulted with stone on
his left leg. The accused, thereafter, criminally
intimidated P.W.1 and had thrown him into the well. P.W.1
has further deposed that when he came out of the well he saw
A2 beating P.W.1 with a stick and A2 assaulting P.W.2 with
hands and the deceased Rani had been assaulting P.W.2 with a
stone on the left cheek and that on hearing their distress
call neighbours rushed to the place of occurrence and on
seeing them, the accused took to their heels. Both P.W.1 &
P.W.2 were taken to government hospital at Dharapuram, where
they were treated as out patients. Ex.P.1 is the complaint
preferred by P.W.1.
5.P.W.2 is the brother of P.W.1. He would also
corroborate the evidence of P.W.1 and would say that at the
time of occurrence A1 had assaulted P.W.1 with hands, the
deceased Rani had assaulted P.W.1 with stone on the left leg
and A2 had assaulted P.W.1 with stone on his back and they
have pushed P.W.1 into the well and before P.W.1 could claim
up, A2 had assaulted him (P.W.2) on his back with a stick
and A2 had assaulted him on the back with hands and the
deceased Rani had assaulted him on the left cheek with stone
causing injuries and on hearing their distress call,
witnesses Subramaniam, Kathiresan & Manivel rushed to the
place of occurrence and on seeing them, the accused ran away
from the place of occurrence. Thereafter, P.W.1 and P.W.2
went to the Government Hospital at Dharapuram, where they
were treated and on the next day P.W.1 had preferred a
complaint with the police.
6.P.W.3 is an eye witness to the occurrence. According
to him, on 28/29.3.2001 at about 1.30 am, on hearing a noise
near the well, he rushed there and saw A1, A2 and the
deceased Rani attacking P.W.1. According to him, the
overtact attributed to A1 is that he gave blows on the back
of P.W.1 and A2 gave a blow on the eye of P.W.1 and the
deceased Rani pelted stone on the back of P.W.1 and after
criminally intimidating P.W.1, the accused pushed him into
the well and A2 had assaulted P.W.2 with a stick on his
back and A1 had assaulted P.W.1 with hands on the back and
the deceased Rani had assaulted with stone and on seeing
him, the accused took to their heels.
7.P.W.5 is the then Sub-Inspector of Police, Erode
Taluk Police Station. On information, he had registered the
statement of P.W.1 on 29.3.2001 at Government Hospital,
Dharapuram and registered a case in Erode Taluk Police
Station Cr.No.28 of 2001 under Section 323 & 324 IPC.
Ex.P.5 is the FIR. He had visited the place of occurrence
and the Head Constable had prepared observation mahazar
Ex.P.2 and also Ex.P.6-rough sketch. He has also examined
the Head Constable and recorded his statement.
8.P.W.7 is the Investigating Officer in this case. He
had altered the charges from Section 323 & 324 IPC to
Section 307 & 323 IPC. Altered FIR is Ex.P.7.
9.P.W.5 is the doctor, who had examined P.W.1 on 2.50
pm on 29.3.2001 at Government Hospital, Dharapuram and
issued Ex.P.3 copy of the accident register. He has also
examined P.W.2 on 29.3.2001 at about 2.40 am and Ex.P.4 is
the copy of the accident register relating to the injuries
sustained by P.W.2. The doctor has opined that the injuries
are simple in nature.
10.P.W.8 after completing the formalities had filed the
charge sheet against the accused on 13.8.2002 under Section
323 & 307 IPC.
11.When incriminating circumstances were put to the
accused under Section 313 of Cr.P.C., the accused would deny
their complicity with the crime. The accused have exhibited
Ex.D.1 to Ex.D.5, documents relating to Cr.No.29 of 2001,
the counter case filed by the accused against P.W.1 & P.W.2.
After scanning the evidence both oral and documentary, the
learned trial Judge has come to the conclusion that the
prosecution has failed to prove the charges levelled against
the accused beyond any reasonable doubt and accordingly
acquitted the accused from all the charges levelled against
them, which necessitated the complainant-P.W.1 to prefer
this revision.
12.Now the point for determination in this revision is
whether the findings of the learned trial Judge is full of
manifest error or perverse in nature leading to miscarriage
of justice to warrant any interference from this Court?
13.The Point: At the same time of occurrence the
accused also sustained injuries at the hands of P.W.1 &
P.W.2 and A1 had preferred a counter case under Cr.No.29 of
2001. The said fact was admitted by the Investigating
Officers in this case viz., P.W.6 & P.W.7 in their cross-
examination. The charge sheet, FIR, rough sketch,
observation mahazar and the list of material objects filed
along with the charge sheet in Cr.No.29 of 2001 were
exhibited in this case on the side of the accused as Ex.D.1
to Ex.D.5. But there is no explanation given by the
Investigating officer in this case as to why the provision
under Section 588(A) of the PSO was not followed in this
case. The said complaint in Cr.No.29 of 2001 was preferred
by Panneer Selvi, A1 herein. It is seen from Ex.D.2, that
case was registered under Section 324 & 506(ii) IPC against
Kittusamy, P.W.1 herein and Rangasamy-P.W.2 herein and also
against one Chinnadurai. P.W.6, the Investigating Officer
in this case, would admit that in the cross-examination he
has not filed any wound certificate in respect of the
accused for the injuries they have sustained in the same
occurrence. If the prosecution fails to explain the
injuries of the accused then it is fatal to the prosecution
case, is the dictum laid down in AIR 1976 SC 2363 (Lakshmi
Singh and others etc., Vs. Sate of Bihar), wherein the
prosecution has failed to explain the injuries sustained by
the accused at about the same time of occurrence or in the
course of alteration. The honourable Apex Court has held
that the non-explanation of the injuries sustained by the
accused would amount to suppression of genesis and the
origin of the occurrence itself and it throws doubt on the
prosecution case, which will inure to the benefit of the
accused. The exact observation in the above said dictum
runs as follows:
“Particularly when the prosecution does not
give any explanation for the grievous and other
serious injuries on the person of Dasrath Singh.
This is a case where it is not possible to
disengage the truth from falsehood, to sift the
grain from the chaff. The truth and falsehood
are so inextricably mixed together that it is
difficult to separate them. Indeed if one tries
to do so, it will amount to reconstructing a new
case for the prosecution which cannot be done in
a criminal case.
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Non-explanation of the injuries sustained by the
accused at about the time of the occurrence or in
the course of altercation is a very important
circumstance from which the Court can draw the
following inferences:
(1) that the prosecution has suppressed the
genesis and the origin of the occurrence and has
thus not presented the true version;
(2) that the witnesses who have denied the
presence of the injuries on the person of the
accused are lying on a most material point and
therefore their evidence is unreliable;
(3) that in case there is a defence version
which explains the injuries on the person of the
accused it is rendered probable so as to throw
doubt on the prosecution case. (AIR 1968 SC 12
81 and AIER 1975 SC 1674 relied on).
………………………………………….
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………. The omission on the part of the
prosecution to explain the injuries on the person
of the accused assumes much greater importance
where the evidence consists of interested or
where the defence gives a version which competes
in probability with that of the prosecution
case.”
Apart from the above said flaw the prosecution has also
suffered from other infirmities like the statement of the
injured P.W.1 and P.W.2 before the doctor, P.W.5, that they
have been assaulted by six persons at the time of
occurrence. But before the Court they would confine
themselves to three persons. The evidence of P.W.2 will go
to show that he would not have witnessed the alleged assault
made by the accused on P.W.1 because his evidence is to the
effect that even before P.W.1 could come out of the well he
had seen A1 & A2 assaulting P.W.1 with stone and stick.
Further P.W.1 before the doctor P.W.5 at the time of his
treatment has informed that six known persons have assaulted
him with aruval which is not the case of P.W.1. In Ex.P.4
copy of the accident register, also the doctor P.W.5 has
mentioned that P.W.2 had informed him, at the time of
treatment, that he was assaulted by six known persons with
aruval causing grievous injuries. Further no material
objects were also produced by the prosecution in this case.
Under such circumstances, I do not find any illegality or
manifest error or perverseness in the findings of the
learned trial Judge leading to miscarriage of justice to
warrant any interference from this Court. Point is answered
accordingly.
14.In fine, the revision is dismissed confirming the
judgment of the trial Court in S.C.No.47 of 2004 on the file
of the Additional Sessions Judge, Dharapuram.
ssv
To
1. The Additional Sessions Judge
Dharapuram.
2. -do-The District & Sessions Judge
Dharapuram.
3. The Public Prosecutor
Madras High Court
Madras.
4. The Inspector of Police
Alahgiyam Police Station
Dharapuram Taluk
Erode.