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Rabi vs State Represented By on 30 March, 2010

Madras High Court
Rabi vs State Represented By on 30 March, 2010
       

  

  

 
 
 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 30/03/2010

CORAM
THE HONOURABLE MR.JUSTICE P.MURGESEN
AND
THE HONOURABLE MR.JUSTICE T.MATHIVANAN

Criminal Appeal (MD)No.513 of 2002

Rabi						...	Appellant
		
Vs

State represented by
Inspector of Police,
Thiruvattar Police Station,
Kanyakumari District.
Crime No.409/93					..	Respondent


Appeal filed under Section 374 of Cr.P.C. against the judgment passed in
S.C. No.74 of 1997 on the file of the Additional Sessions Judge, Kanyakumari
District at Nagercoil, dated 11.03.2002.

!For Appellant	   ... Mr.R.Shanmugasundaram,
		       Senior Counsel for
		       Mr.C.Mayilvahana Rajendran
^For Respondent    ... Mr.P.N.Pandidurai,
		       Addl.Public Prosecutor


:JUDGMENT

(Judgment of the Court was delivered by
P.MURGESEN, J.)

This Criminal Appeal is directed against the judgment passed in S.C. No.74
of 1997 on the file of the Additional Sessions Judge, Kanyakumari District at
Nagercoil, dated 11.03.2002.

2. The appellant is the first accused and the respondent is the
complainant.

3. The case of the prosecution is as under:-

P.W.1-Vincent is the resident of Kallankuzhi, Marthandanvilai. The
deceased Ponnappan was his brother. P.W.2-Palaiyan is the resident of
Kallankuzhi and he is an agriculturist. P.W.3-Chelliahkan and P.W.4-Singarayan
are also the residents of Kallankuzhi. P.W.5-Robinson is the resident of
Manalikarai, Christhavapuram. P.W.6-Lazer is the resident of Vayanadu. The
deceased’s wife is the sister of P.W.6. P.W.7-Christudhas is the resident of
Kallankuzhi and he is a coolie worker. P.W.8-Kanagappan is the resident of
Anaiyadi and he is also a coolie worker. P.W.9-Rasaiyan is the resident of
Kallankuzhi. P.W.10-Thangam is the wife of the deceased Ponnappan.

4. The deceased Ponnappan is the husband of P.W.10 and elder brother of
P.W.1. P.W.6 is the elder brother of P.W.10, and brother-in-law of the deceased.
The first accused is the paternal uncle’s son of P.Ws.10 and 6. On 28.06.1993 at
11.30 p.m., the deceased and P.W.1 went to Mavaravilai to arrange labourers.
While they were returning from Mavaravilai to their house, the occurrence took
place. The first accused-Rabi obstructed the deceased and attacked him with
Vettukathi (btl;Lf;fj;jp), the second accused-Raja @ Sam Selvakumar attacked the
deceased with a rod (fk;gp), the third accused-Rajathambi attacked the deceased
with a rod (fk;gp). The fourth accused-Thangamani was present in the place of
occurrence. When the first accused attacked the deceased repeatedly, the cuts
fell on the fourth accused. Also, the cuts made by the second and the third
accused on the deceased fell on the fourth accused.

5. There were cases between the prosecution witnesses and one Chelladurai
with regard to a land dispute even before two years of the date of occurrence.
The second accused-Raja, who is an Advocate, intervened in the matter and made a
compromise between them and in the result, the deceased Ponnappan was directed
to pay an amount, but he did not pay the amount. So there was an enmity between
them. On the date of occurrence, there was no light failure, which is evident
from the evidence of P.W.13-Raj, who was the Switch Operator in the Panchayat
Office of Kallankuzhi.

6. After the occurrence, P.W.1 took the deceased in a car driven by
P.W.11, to Kottar Government Hospital. The deceased Ponnappan was admitted in
the Kottar Government Hospital, Nagercoil at about 01.15 a.m. on 29.06.1993 and
at that time, he was unconscious. P.W.14-Dr.Sornam examined the deceased and
found the following injuries:-

“30 cm x 1 cm x depth not probed due to bleeding. Brain comes out on the
back. Oblique incised wound from the right eyebrow (nc) the left parietal region
depth from right side to left bleeding present.”

Ex.P8 is the Accident Register issued for the treatment given to the deceased by
P.W.14. Thereafter P.W.14 gave intimation about the admission of the deceased to
the hospital, to Police under Ex.P9.

7. P.W.25-Chandrasekaran was the First Grade Constable in the Kottar
Police Station. On receipt of Ex.P9 from the hospital, he went to the Kottar
Government Hospital and recorded the statement from P.W.1 at about 01.50 a.m. on
29.06.1993. Thereafter P.W.25 gave information to P.W.26, who was the Head
Constable of Thiruvettar Police Station, since the place of occurrence falls
within the jurisdiction of Thiruvettar Police Station. P.W.26, on receipt of the
information from P.W.25 and the statement of P.W.1, registered a case in Crime
No.409 of 1993 at about 05.30 hours on 29.06.1993 under Sections 341 and 324 IPC
and prepared Ex.P23-printed First Information Report and sent the same to the
Judicial Magistrate, Padmanabhapuram and the concerned officials. Thereafter,
the investigation was taken over by P.W.27-Sub-Inspector of Police of
Thiruvettar Police Station. He took up the case for further investigation at
about 06.45 a.m. on 29.06.1993. P.W.27 thereafter, visited the scene of
occurrence at about 07.30 hours on that day in the presence of witnesses and
prepared Ex.P2-Observation Mahazar and Ex.P24-Rough Sketch in the presence of
P.W.3 and one Balu. Thereafter P.W.27 recovered M.O.2-Blood-stained earth and
M.O.3-Sample earth under the cover of Ex.P3-Athakshi.

8. In the mean time, the fourth accused-Thangamani, who also sustained
injuries in the attack, was admitted in the Kottar Government Hospital,
Nagercoil. He was treated by P.W.17-Dr.P.Kandappapillai. P.W.17 found as many as
12 injuries on A-4 and issued Ex.P14-Wound Certificate to that effect. The
injuries as stated in Ex.P14 are as under:-

1)An incised wound of 2x1x1cm over the lower 1/3 of right forearm.

2)An abrasion of 1x1cm over the middle 1/3 of the right forearm with swelling.

3)Contusion of 3x2cm over the right hand.

4)Abrasion of 1x1cm over the posterior aspect of right arm(nc)

5)An abrasion 1 x . cm over the middle of the lateral aspect.

6)An incised like wound of 8x1x1cm over the middle of scalp (partial region)

7)A lacerated wound of 1x1cm over the lateral aspect of left eyebrow.

8)A contusion of 10x6cm over the lateral aspect of left side of chest.

9)A lacerated wound of 2x1x . cm over the posterior aspect of left elbow.

10)A contusion of 6x2cm over the left lateral aspect of thigh.

11)Fullness of abdomen with tenderness.

12)An incised wound of 5x2x1cm over the (nc) border of left little fingers on
its base.

P.W.19-Velappan, who was the constable attached to Kottar Police Station, on
receipt of intimation from the hospital, went to the hospital and recorded the
statement from A-4 under Ex.P19 at about 09.30 hours on 29.06.1993 and forwarded
the intimation and statement to Thiruvettar Police Station. P.W.23 was the Head
Constable in the Thiruvettar Police Station at that time. On receipt of the
statement of the fourth accused, he registered the case in Crime No.410 of 1993
at about 18.00 hours on 29.06.1993 under Sections 147, 148, 452, 323 and 324 IPC
and prepared Ex.P21-Printed F.I.R.

9. At about 12.45 hours on 29.06.1993, the deceased Ponnappan died.
P.W.15-Dr.Radhakrishnan gave death intimation under Ex.P11. P.W.20, on receipt
of the death intimation, forwarded the same to Thiruvettar Police Station at
about 17.30 hours on that day. On receipt of the death intimation of the
deceased, P.W.23, who was the Head Constable in the Thiruvettar Police Station,
altered the case in Crime No.409 of 1993 to Section 302 IPC and prepared Ex.P20-
Express Report.

10. P.W.27-Sub-Inspector of Police in the Thiruvettar Police Station,
conducted inquest over the body of the deceased at 7.30 a.m. on 29.06.1993 and
prepared Ex.P25-Inquest Report. Thereafter, he gave a requisition under Ex.P12
to conduct post mortem over the body of the deceased through P.W.22-Constable.
P.W.16-Dr.Muthuraj, attached to the Kottar Government Hospital, on receipt of
Ex.P12, conducted post mortem on 30.06.1993 and issued Ex.P13-Post Mortem
Certificate. It is stated in the Post Mortem Certificate as under:-
“Appearances found at the Post Mortem:-

A male body lies on back. Moderately nourished sym with the following external
injury:-

1)A small abrasion over the anterior surface of the elbow joint 2cm x 1 cm.

2)A sutured wound running obliquely from the right outer end of the eyebrow
partly over the right frontal bone; left parietal bone 30cm in length. Eyelids
closed. Heart 350g C/s. Chambers empty. Lungs Right 600 gms. Left 500 gms. C/s
congested Hyoid bone intact. Stomach 150 gms c/s Stomach empty. Liver 1900G. C/s
congested. Spleen 150gms C/s Congested. Kidneys 200G. C/s congested. Brain 1400G
C/s congested. Skull (torn) of the skin over the scalp blood clot (large) seen
over the (torn) parietal bone. A fracture seen from the right orbit passing
upwards & backwards across the right frontal bone extending to the left parietal
bone 25cm in length.

On dissection of the skull bone the brain matter found cut in the left parietal
lobe and right frontal lobe over the upper surface. Bky;ghfk;
Blood clot seen over the brain surface more on the left side 150ml of blood in
the Cranial cavity.”

11. Thereafter, P.W.28-Inspector of Police took up further investigation
in the matter and examined the witnesses on 08.07.1994. Then, P.W.29-Inspector
of Police took up the case for further investigation. After completing the
investigation, he filed the charge sheet against the accused on 17.02.1995 under
Sections 341 and 302 r/w 34 IPC.

12. Before the Trial Court, P.Ws.1 to 29 were examined and Exs.P1 to P26,
D1 to D16 and M.Os.1 to 6 were marked. On consideration of the evidence on
record, the Trial Court convicted the first accused under Section 341 IPC and
sentenced to undergo one month S.I.; convicted the first accused under Section
302 IPC and sentenced to undergo life imprisonment and to pay a fine of
Rs.1,000/- in default to undergo 1 year imprisonment. The Trial Court acquitted
the accused 2 to 4.

13. Challenging the conviction and sentences imposed by the Trial Court,
the present Criminal Appeal has been filed by the appellant / first accused.

14. The motive as projected and portrayed by the prosecution is that there
was a dispute between the deceased Ponnappan and one Chelladurai. The second
accused, who is an Advocate, interfered in the matter and made a compromise and
in that compromise, the deceased Ponnappan was directed to pay an amount, but
he did not pay the amount. So there was an enmity between them. The difference
of opinion was spoken to by P.W.10-the wife of the deceased, and P.W.12.

15. Evidence of P.W.10 would show that there was no civil dispute between
the deceased Ponnappan and Chelladurai, but it is the evidence of P.W.12 that
there was a civil case between them. Admittedly, P.Ws.1, 7 and 12 are having
number of criminal cases. Even P.W.12 was detained under the Goondas Act and he
was having 5 criminal cases in his credit. P.Ws.1, 7 and 12 are accused in
various cases. Apart from that, they are having number of cases. According to
the prosecution, the dispute was between the deceased Ponnappan and one
Chelladurai. Here it has to be noted that the said Chelladurai was not
examined. If the deceased Ponnappan was not prepared to pay the amount as per
the settlement, A-1, A-3 and A-4 need not have any grievance over the non-
payment of the amount, because the dispute was only between the deceased
Ponnappan and one Chelladurai. The non-examination of the said Chelladurai is a
defect in the case of the prosecution.

16. The second accused gave the complaint against the complainant-party
which has been registered under Ex.P22 in Crime No.389 of 1993 on the file of
the Thakkalai Police Station. In this case, there is a doubt about the scene of
occurrence as raised by the Senior Counsel. The complainant-party claimed that
they were returning from Mavaravilai to Kallankuzhi Road. The Investigating
Officer said that there was no necessity for them to come to the scene of
occurrence at that time. Though the witnesses claimed that they went to secure
some persons for carrying out some work, the non-explanation on the side of the
prosecution as to why they have chosen a different route when there was a
straight road to the house, creates a doubt in the case of the prosecution.

17. Learned Senior Counsel appearing for the appellant / first accused has
stated that the theory of securing the persons for work is not correct.
According to the prosecution, the occurrence took place in the road and the same
is depicted in the Sketch as No.1. The fourth accused’s house is situated 30
feet from the scene of occurrence, but the prosecution claimed that blood-
stained earth was recovered from the scene of occurrence. P.W.11 is the taxi
driver, engaged in removing the victim from the scene of occurrence to the
hospital. His evidence would disclose that the deceased Ponnappan was taken from
the house of the fourth accused. The deceased Ponnappan had no business to enter
into the house of the fourth accused. There was no necessity for P.W.11 to
depose against the prosecution witnesses. His evidence nails the case of the
prosecution. It is clear from his evidence that the victim was removed from the
house of the fourth accused. The occurrence took place in the night. The
complainant party has no business to enter into the house of the fourth accused.
On behalf of the fourth accused, a complaint was given under Ex.P21 in Crime
No.410 of 1993 on the file of the Thiruvettar Police Station, which would show
that the complainant party entered into the house of the accused and attacked
them. That case was not investigated by the Investigating Officer according to
law. When such a serious allegation was mentioned, P.W.7 was not enquired by the
Police as regards how A-4 sustained injuries. So, that case was not disposed
according to law. This would go to show that the Investigating Officer did not
investigate the case properly. A-4 sustained 12 injuries. According to the
prosecution, there are few injuries sustained by A-4, but on the other hand, he
sustained 12 injuries in which 1 injury was grievous in nature and 4 ribs were
broken. This all would go to show the force with which the attack was made on A-
4, but A-1 and A-3 would not have delivered such a huge blow on A-4, who is
their own father, when he alleged to have intervened in the attack. So, the
theory of the prosecution that A-4 sustained injuries when he intervened in the
attack, falls to the ground. Moreover, P.W.1 admitted in his evidence that A-4
was aged 75 years at the time of occurrence and he was not in a position to
walk. P.W.1 also admitted that A-4 sustained only 5 to 6 injuries. When A-4
was not in a condition to walk, the case of the prosecution that A-4 intervened
in the attack cannot be true. Therefore, the case of the prosecution that an old
man who was in immobile condition was assaulted by his sons, cannot be true.
So, the non-explanation of the injuries on A-4 and the shifting of the scene of
occurrence, would clearly demolish the case of the prosecution. The motive
attributed is not established in the manner known to law.

18. Further, the learned counsel for the appellant / first accused raised
a doubt about the origin of F.I.R. P.W.25 admitted that, once he receives a
complaint, he would make an endorsement as to what was recorded by him. He also
admitted that in the words endorsed in the F.I.R. relating to Crime No.281 of
1993 and that of Ex.P1 are different. As per the evidence of P.W.25 he would
not have received the complaint from the victim. Moreover, in Ex.P1, the
signature is not that of P.W.25. On the same day, he received another complaint
from A-4 which has been marked as Ex.D11. He admitted that the signature in
Ex.D11 is correct. A comparison of Ex.P1 and Ex.D11 would show that the
signatures in both these documents, varies. He admitted the variation of
signatures in both these documents. Both the F.I.Rs have been endorsed by him.
Further, his name is Chandrasekar and he will not write his name as “Chandan” in
the records, but it is shown as “Chandran” in Ex.P1. When P.W.25 was assertive
that he will not sign as “Chandran” in the Government records, the presence of
the name “Chandran” who was said to have recorded the statement, would show that
F.I.R. is not true. So, when the F.I.R. itself is suspicious, the entire case of
the prosecution is bound to fail.

19. Learned Senior Counsel appearing for the appellant / first accused
relied on the judgments of the Hon’ble Supreme Court in State of Punjab v. Mohri
Ram and Others
(1994 Supreme Court Cases (Cri) 737) and in Marudanal Augusti v.
State of Kerala
(1980 Supreme Court Cases (Cri) 985) and argued that since the
F.I.R. itself is held to be fabricated, the entire prosecution’s case would
collapse.

20. It is seen from the evidence on record that the complainant-party are
having number of cases to their credit. There are 15 Nos. of F.I.Rs filed on
the side of the defence which would show that the eye-witnesses are involved in
the criminal cases. Further the evidence of P.W.16-the Doctor, who conducted
post mortem over the body of the deceased, would shake the case of the
prosecution. He said that the victim sustained one injury in the forehead. In
this case, the weapon is shown as “Vettukathi”. The doctor opined that the
injuries would have been caused by a bent weapon, but the injuries sustained by
the deceased, would show that there is a doubt about the weapon produced on the
side of the prosecution. Further, the doubt raised by the doctor, as stated
above, is not answered on the side of the prosecution. This also creates
suspicion in the case of the prosecution.

21. Learned counsel appearing for the appellant / first accused, has
submitted that the F.I.R. reached the Court belatedly. The F.I.R. was lodged on
29.06.1993 at 05.30 a.m., but it reached the Court only at 6.55 p.m. on that
day. The distance between the Police Station and the Magistrate’s Court is not
far off, but the F.I.R. reached the Court belatedly. For this, no convincing
reason was adduced on the side of the prosecution. Further the complaint given
by the accused-party was not investigated properly.

22. In the facts and circumstances recited above, we are clearly of the
view that the prosecution has not come up with the true story. It has suppressed
the facts. If that be the case, the whole prosecution story would stand on
quicksand. The prosecution has failed to establish its case beyond reasonable
doubt. It is a well-settled principle of law that if two views are possible, the
one in favour of the accused and the other adversely against it, the view
favouring the accused must be accepted. Therefore, the conviction and sentences
imposed on the appellant / first accused are liable to be set aside.

23. In the result, the conviction and sentences imposed on the appellant /
first accused are set aside and the appellant / first accused is acquitted of
all the charges levelled against him. Accordingly, the Criminal Appeal is
allowed.

KM

To

1.The Additional Sessions Judge,
Kanyakumari District at Nagercoil.

2.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.

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