BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 25/02/2008
CORAM
THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM
AND
THE HONOURABLE MR.JUSTICE S.PALANIVELU
Crl.A.No.734 of 2007
1.Pandy
2.Chokkan
3.Karunanidhi
4.Seeni alias Seenivasan .. Appellants
Vs.
State by
the Inspector of Police,
Melur Police Station,
Madurai District.
(Crime No.558 of 1999) .. Respondent
PRAYER
This criminal appeal has been preferred under Section 374 Cr.P.C against
the judgment dated 28.07.2000 made in S.C.No.547 of 1999 by the II Additional
Sessions Judge, Madurai.
!For Appellants ... Mr.K.Jegannathan
for A1 and A2
Mr.P.Andiraj
for A3 and A4
^For Respondent ... Mr.C.Daniel Manoharan,
Addl.Public Prosecutor
:JUDGMENT
(The judgment of the court was made by M.CHOCKALINGAM, J.)
The appellants four in number challenging the judgment of the II
Additional Sessions Judge, Madurai, dated 28.07.2000 made in S.C.No.547 of 1999,
whereby the accused/appellants stood charged, tried, found guilty under Sections
341 and 302 r/w 34 IPC and they were awarded punishment to undergo one year
Rigorous Imprisonment for the first charge and also to undergo life imprisonment
for the second charge, have brought-forth this appeal.
2. The short facts that are necessary for the disposal of this appeal can
be stated thus:-
a) P.Ws.1 to 4 and also the deceased Balakrishnan and all the accused
belong to Ceylone Colony, Nondikovilpatti within the jurisdiction of the
respondent Police. On the day of occurrence that was on 15.06.1999, at about
8.00 p.m., P.W.5 was attacked by the deceased. At the time, the deceased
Balakrishnan and his brothers, who were P.Ws.1 and 2 along with others separated
them and brought P.W.5 home. At that time, A2 made a challenge. When P.W.1 was
assaulted, the deceased Balakrishnan in turn assaulted A2. Further, A2 made a
challenge, at that time, he left the place. At about 11.15 p.m., Balakrishnan,
who was employed in a Transport Corporation proceeded to his duty at about 11.45
hours. At that time, P.Ws.1 to 3 were all standing inside the house. When they
came outside and they were just chatting. When Balakrishnan left a distant of
50 feet, all the four accused who were hiding themselves started attacking the
deceased. A1 attacked him with a knife on his neck, A2 attacked him on the left
flank, A3 attacked him on his left foot, while A.4 attacked him on his left and
right fore arms. This was witnessed by all the P.Ws.1 to 4. Immediately, A1
was caught by the prosecution witnesses and they snatched the knife from his
hand and in that process A1 also sustained injuries, other accused fled away
from the place of occurrence. A1 was directly taken by P.Ws. 2 and 3 to the
respondent police station and in turn, P.W.15, who was present at the police
station, sent him along with a medical memo to the Government Hospital, Melur.
P.W.9 Doctor, who was in duty at 12.05 hours, examined A1 and he found injuries
as noted in Ex.P8 Accident Register. When the injured Balakrishnan was taken to
the Government Hospital, an intimation was given from the Government Hospital to
the respondent Police Station.
b) On receipt of the intimation, P.W.16, Inspector of Police proceeded to
the Government Hospital, Melur and recorded the statement of P.W.1 at about
01.45 a.m on 16.06.1999. On the strength of Ex.P1, a case came to be registered
in the respondent Police Station in Crime No.558 of 1999 under Sections 341 and
302 IPC. Express FIR Ex.P.20 was despatched to the Court and to the higher
officials.
c) On receipt of copy of the FIR, P.W.16, the Inspector of Police, took up
the investigation, proceeded to the scene of occurrence, made an inspection in
the presence of witnesses and prepared an Observation mahazar Ex.P.21, and a
rough sketch Ex.P.23. Further, he enquired some witnesses and recorded their
statements. He recovered sample earth M.O.7, bloodstained earth M.O.8 and also
other material objects from the place of occurrence under a cover of mahazer
Ex.P.23. He also recovered M.O.3, knife from P.W.3 at the Government Hospital
under Ex.P.19, form 95. The investigator conducted inquest on the dead body of
the deceased in the presence of the witnesses and panchayatdars and prepared an
inquest report, which was marked as Ex.P.24.
d)Following the same, the dead body of the deceased was sent to the
Government Hospital, for the purpose of autopsy. P.W.8, the Doctor, attached to
Melur Government Medical College Hospital, conducted autopsy on the dead body
of the deceased and issued Ex.P.7, the post-mortem certificate and has given his
opinion that the deceased would appear to have died of shock and haemorrhage due
to injury to vital vessels arch of arota, ten to fourteen hours prior to
autopsy.
e) Pending investigation, on 17.06.1999 at about 13.00 hours, the
investigator arrested A1, when he was under treatment at the Melur Government
Hospital and he was sent for judicial remand. Both of them A3 and A4 were also
arrested on 18.06.1999 and they gave a confessional statement voluntarily and
the admissible part of the said confessions were marked as Exs.P.2 and 11,
pursuant to which the third accused produced M.O.2 knife and the fourth accused
produced M.O.1 knife. Both were recovered under two cover of mahazers namely
Exs.P.10 and 12 respectively. They were also sent for judicial remand.
f) All the material objects recovered from the place of occurrence, from
the dead body of the deceased and the Material Objects recovered from the
accused, were sent for chemical analysis pursuant to a requisition, Ex.P.15,
given by the Investigating Officer to the concerned Judicial Magistrate. Two
reports were received. One is Ex.P.17, the Chemical analysis report and the
other is Ex.P.18, the Serologist report. On completion of the investigation,
the Investigating Officer has filed the final report before the concerned court,
which in turn committed the case to the court of sessions and necessary charges
were framed.
g) In order to substantiate the charges, at the time of trial, the
prosecution examined 16 witnesses and relied on 28 exhibits and 9 M.Os. On
completion of the evidence on the side of the prosecution, the
accused/appellants were questioned under Section 313 Cr.P.C. as to the
incriminating circumstances found in the evidence of prosecution witnesses. They
denied them as false. No defence witness was examined. After hearing the
arguments of the counsel and looking into the material available meticulously,
the lower court, took the view that the prosecution has proved the case beyond
reasonable doubts and found the accused guilty and awarded the punishment as
referred to above. Under these circumstances, this criminal appeal has arisen at
the instance of the accused/appellants.
3. Advancing arguments on behalf of the appellants, Mr.K.Jegannathan and
Mr.P.Andiraj, in their sincere attempt of assailing the judgment of the Court
below, made the following submissions.
a)In the instant case, the prosecution rested its case by examining four
witnesses as the occurrence witnesses. Out of those five witnesses, P.W.4
turned hostile. P.Ws.1 and 2 are the brothers of the deceased and P.W.3 is the
father of the deceased and therefore, all are interested witnesses. Apart from
that even as per the case of prosecution, the accused party and the prosecution
witnesses were in inimical terms and further in the instant case, even the
evidence of these witnesses inter se thoroughly filled with contradictions. The
case of the prosecution has failed from two angles.
b)Firstly, in the instant case, with reference to the genesis of the
occurrence, the prosecution has either failed to bring it to the notice of the
Court or has suppressed. According to prosecution witnesses, immediately after
the occurrence, the first accused was taken to the police station, P.W.15, who
was available there, sent him to the Government Hospital, Melur and the A.1 was
examined by P.W.9 doctor, who has noted all the injuries found on him, which
were 11 in number as described in Accident Register Ex.P.8; out of those
injuries, injury No.6 and 11 were found to be grievous and apart from that, bone
fractures were found. The explanation what was given by the prosecution was
that at the time of occurrence, P.Ws.1 to 3 intervened and snatched the knife
from the hands of A1 and also they attacked with wooden log. The explanation
tendered by the prosecution can not be true but false. Even as per the evidence
of P.W.15, P.Ws.2 and 3, who took A1 to the police station , also narrated the
occurrence to P.W.15, thereafter he went to the hospital and met PW.1 and
recorded Ex.P.1 report and as a result of which a case came to be registered.
The original information given by P.Ws.2 and 3 who were the witnesses to the
occurrence was thoroughly suppressed and now the information what was alleged
to have been recorded by P.W.15 at Government Hospital could not be the first
information.
c)Added further, P.W.15 has categorically admitted that the signature of
P.W.1 was obtained in Ex.P.20, first information report only at the police
station.
d) All these would go to show that the prosecution has not placed the
entire case before the court. Thus, they did not allow the Court to come to a
correct conclusion and the benefit of doubt should be given in favour of the
appellants.
e) The non-explanation of the injuries sustained by A1 and other
circumstances would be sufficient to reject the case of prosecution. But, the
lower Court has found the appellants as guilty and therefore, they are entitled
for the acquittal in the hands of this Court.
4. The court heard the learned Additional Public Prosecutor on the above
contentions and paid its anxious consideration on the submissions made and also
scrutinized the materials available.
5. It is not a fact in controversy that one Balakrishnan, brother of
P.Ws.1 and 2, son of P.W.3 was met his death following the incident taken on
15.06.1999 at about 11.15 hours and he was declared dead. Following the
registration of the case by P.W.15, P.W.16 the Inspector of Plice, pending
investigation conducted the inquest on the dead body and P.W.8 Doctor conducted
autopsy on the dead body and and gave an opinion that the Balakrishnan died out
of shock and hemorrhagedue due to injury to vital vessels of aorta. The fact
that the deceased died out of homicidal violence was never disputed by the
appellants and hence it has got to be recorded so.
6. In order to substantiate the case of the prosecution, four witnesses
were examined as the occurrence witnesses, who were P.Ws.1 to 4. Out of the
four witnesses, PW.4 turned hostile. P.Ws.1 to 3 have spoken the case of the
prosecution. According to all of them, when Balakrishnan was just proceeding to
his house at 11.15 hours, all the four accused/appellants armed with deadly
weapons hiding themselves attacked him indiscriminately and thereby caused his
death. Even as per the prosecution case, A1 was examined by P.W.9 Doctor at
about 12.05 hours and Accident Register Copy in that regard was placed as Ex.P8.
On a perusal of Ex.P8 would reveal that A1 was produced before the doctor by a
constable along with a medical memo. Hence, it would quite clear that before
being produced before the Government Hospital, he should have been produced
before the police station. Even according to P.W.15, Sub-Inspector of Police,
A1 was produced before him by P.Ws.2 and 3 and when they produced A1 along with
knife they have also narrated the incident. If to be so, that should have been
the first information.
7. According to the prosecution, P.W.15 had an intimation from the
Government Hospital, Melur, and thereafter, he went over there and recorded the
statement of P.W.1 namely Ex.P.1 and on the strength of Ex.P1, a case came to be
registered at the police station afterwards.
8. Now, at this juncture, the Court is able to see that when A1 was
produced before the police station and he was found sustaining injuries and he
was also produced before the medical person and Ex.P8 would indicate 11
injuries, and out of the 11 injuries, injury No.6 and 11 were found to be
grievous and bone fractures were also noticed. According to P.Ws.1 to 3, at the
time of occurrence, they snatched the knife from the hands of A1 and also
attacked him with wooden logs. The injuries found in the body of A1 and in
particular injury Nos.6 and 11 could not have been caused at all as such. Thus,
it would be quite clear that A1 was produced before the doctor PW.9, he has
clearly stated that he was attacked by known persons with knife and wooden log
etc. Under such circumstance, insofar as the injury sustained by A1 was
concerned, the prosecution did not put-forth a proper explanation which could be
accepted. Apart from that, the Inspector of Police has also not investigated in
that regard.
9. Thus, the Court is able to see two infirmities in this case. Firstly,
the fact that P.Ws.2 and 3 went to the police station and narrated the
occurrence. Under the circumstances, Ex.P.1 report, which according to P.W.15,
he recorded from P.W.1 at the Government Hospital, Melur could not be the first
information. Secondly, when the prosecution came forward to give the
explanation in respect of the injuries sustained to A.1, those injuries remain
unacceptable in view of the grievous injuries noticed. The injuries sustained by
A1 as put-forth by the prosecution witnesses could not have happened at all.
Thus, this Court is of the considered opinion that they have also suppressed the
entire facts of the case and the genesis of the case was not placed before the
Court. Therefore, it would suffice to give the benefit of doubt to the
accused/appellants and they are entitled for acquittal.
10. In the result, the Criminal Appeal is allowed. The accused/appellants
are acquitted of all the charges levelled against them. The bail bonds executed
by the accused/appellants, if any, stand terminated.
arul/asvm
To
1.The II Additional Sessions Judge,
Madurai.
2.The Inspector of Police,
Melur Police Station,
Madurai District.
(Crime No.558 of 1999)
3.The Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.