IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 17/06/2003
Coram
The Honourable Mr. Justice T.V. MASILAMANI
C.A. No.645 of 1996
Raja .. Appellant
-Vss-
State of Tamil Nadu,
rep. by the Inspector
of Police,
Kaveripattinam,
Dharmapuri District. .. Respondent
Criminal Appeal against the judgment made in S.C. No.23 of 1992 dated
31.7.1996 on the file of the Principal Sessions Judge, Dharmapuri District at
Krishnagiri.
!For Appellant : Mr.C.Prakasam
^For Respondent : Mr.A.N. Thambi Durai,
Govt.Advocate (Crl.Side).
:JUDGMENT
Appellant is the accused who was tried before the Sessions Judge,
Dharmapuri District at Krishnagiri for an offence under Section 302 I. P.C.
The charge against him is that on 19.8.1991 at about 8.30 P.M., he due to
previous enmity had hit the deceased Kariyan @ Arunachalam with a brick on his
forehead nearby the public drinking water tap in the village Mahendramangalam
as a result of wh ich the said Arunachalam died on 27.8.1991 at about 8.25
P.M. in Epidemic Disease Hospital, Bangalore. The learned trial Judge held
on the basis of the evidence on record and on the arguments advanced on either
side that the accused is guilty of the offence under Section 335 I.P.C. and
convicted and sentenced him to undergo rigourous imprisonment for two years
and also to pay a fine of Rs.1,000/-, in default to undergo simple
imprisonment for two months. The accused challenges the above conviction and
sentence passed against him.
2. The case of the prosecution may be stated briefly as follows:-
The deceased Kariyan @ Arunachalam, husband of P.W.6 Tulasiammal and
brother of P.W.1 Chinnapaiyan, had reprimanded the accused on the date of
occurrence for his high handed act of abusing the witnesses Rukku, Kamalam,
Shanthi, Kunji and others and breaking the pots kept by them near the public
water tap and therefore an altercation ensued between the accused and the
deceased. While so, the accused had hit the deceased with brick M.O.1 on his
left eye-brow and therefore, he had fallen down. Arunachalam was taken to the
Government Hospital, Palacode where P.W.10 Dr.Murugesan had admitted him as
inpatient on 19.8 .1991 at 9.30 P.M. and on his examination he found that
Arunachalam sustained contusion on his left fore head. Ex.P-7 is the
intimation sent by P.W.10 to Palacode Police Station and thereafter, P.W.9,
Head Constable, Arumugam went to the hospital and examined Arunachalam and
obtained Ex.P-8 complaint from the injured. Further P.W.10 referred the
injured Arunachalam to Government Hospital, Dhamapuri for treatment and
P.W.11, Dr.Ramakrishnan treated him on 20.8.1991 and discharged him on
21.8.1991. P.W.1 Chinnapaiyan, brother of Arunachalam, had taken the latter
to Bangalore for treatment in St.John’s Hospital where he was admitted as
inpatient on 27.8.1991 at 2.30 P.M. P.W.12 Dr.Naina Rani has given evidence
about the death of Arunachalam in the hospital at about 8.25 P.M. on
27.8.1991 on account of tetanus (vide) Ex.P-12 death certificate. Thereupon,
P.W.1 lodged another complaint Ex.P-1 at Marandahalli Police Station on
28.8.1991 at 11.00 A.M and P.W.8, Ramu, Sub Inspector, received the said
complaint and registered a case under Section 302 I.P.C. in Crime No.621/91
and thereafter sent the documents to the higher police officials as well as to
the concerned Court. P.W.13 Arumugam Inspector of police took up
investigation of the case, went to the scene of occurrence at 4.00 P.M. on 28
.8.1991 and prepared Ex.P-5 observation mahazar and Ex.P-14 rough sketch. He
conducted inquest over the body of the deceased between 4.4 5 P.M. and 7.00
P.M. and Ex.P-15 is the inquest report. Thereafter, he sent the body for
post mortem. P.W.4 Dr.Vasantha Kokilam conducted autopsy on the dead body of
Arunachalam and issued the certificate Ex.P-4 with the opinion that he would
appear to have died due to shock and haemorrhage due to head injury about 32
to 40 hours prior to autopsy. The relevant injuries as per Ex.P-4 are
extracted hereunder:-
External injuries:- A cut injury about 4 cm x 1-1/2 cm bone deep wound
extending from above the lateral 3rd of the left Eyebrow to the left temporal
region. There is a recent scar extending from the lower end of the wound to
the left cheek.
Internal Examinations:
Hyoid bone intact. Thorax:- ribs no fracture. Head:- Weight normal,
cut section all the chambers filled with clotted blood about 400 grams.
Lungs:- weight normal, cut section congested. Abdomen:- Stomach weight
normal, cut section congested, contains 200 ml of black coloured fluid.
Liver:- weight normal cut section congested. Spleen:- Weight normal cut
section congested. Intestine:- Weight normal, cut section congested. Urinary
bladder contains about 100 ml of urine. Brain:- Weight normal cut section
pale. Duramater, arachnoid matter and piamater-intact. Skull bones: There
is a depressed partial fracture about 1-1/2 inches x 1/2 inches present over
the frontal bone 1-1/2″ below the left frontal eminence upto the bone marrow.
Inner table of the bone intact.
P.W.13, Inspector of Police arrested the accused on 30.8.1991 at 9.30 A.M.
and sent him to judicial custody. On being identified by P.Ws.1 and 2, he
recovered M.O.1 brick under Ex.P-6, mahazar. Thereafter, his successor
P.W.14, Ramasamy, Inspector of Police, took up further investigation and after
completion of the same, the final report under Section 302 I.P.C. was lodged
against the accused on 13.9.1991 in the Judicial Magistrate Court, Palacode
3. The accused had also been examined by P.W.10 Dr.Murugesan on 20.8
.1991 at 6.45 A.M. for injuries found on him (vide) Ex.P.10 accident register
copy and thereafter, P.W.9 Head Constable Adhimoolam had examined the accused
in the hospital at 10.30 A.M. on the same day after receiving the intimation
from P.W.10.
4. While the accused was questioned with reference to the
incriminating circumstance in the evidence adduced by the prosecution under
Section 313 Cr.P.C. he admitted that he had gone to the scene at the time as
alleged by the prosecution, but however, he has denied the occurrence.
According to him, there was a wordy quarrel between P.W.1 Chinnapaiyan and
others and he was not present during the occurrence as alleged by the
prosecution. He has stated further that since someone had thrown a brick at
him, he sustained injury on his left eyebrow.
5. In the above circumstances, it has become necessary to consider
whether the conviction and sentence passed by the trial Court under Section
335 I.P.C. as against the accused has to be set aside as prayed for.
6. The homicide in this case has been proved by the evidence of P.W.4
Dr.Vasantha Kokilam and Ex.P-4 post-mortem certificate. The cause of death,
according to her, is the injury found on the left eye-brow measuring about 4
cm x 1-1/2 cm bone deep w corresponds to the internal injury, namely,
depressed partial fracture about 1-1/2″ x 1/2″ present over the frontal bone
1-1/2″ below the left frontal eminence upto the bone marrow. The first
contention of the learned counsel for the accused is that the medical evidence
adduced by the prosecution is not only contradictory but also leads to a grave
suspicion in favour of the accused. He has pointed out the evidence of P.W.10
Dr. Murugesan who treated the deceased at the earliest opportunity in the
Government Hospital, Palacode on 19.8.1991 immediately after the occurrence
and he has stated categorically that only a lacerated injury over the left
side of forehead 2 cm x 1/2 cm bone deep was found sutured. P.W.11
Dr.Ramakrishnan has given a categorical opinion that the X-ray reports
relating to Arunachalam did not reveal any injury to the skull bone and it is
in his evidence that on 19.8.1991 Arunachalam was admitted as inpatient at
11.45 P.M. in the M.S. Ward for treatment and he treated him on 20.8.1991.
Ex.P-11 is the case sheet and M.O.6 (series) X-rays with reports corroborate
the contention of P.W.11 and therefore, it is urged and in my opinion rightly
by the learned counsel for the accused that the depressed skull fracture found
by P.W.4, Dr.Vasantha Kokilam at the time of post-mortem could not be ante
mortem in nature. On a careful perusal of the above evidence and upon hearing
the argument of the learned counsel for the accused, I am inclined to hold
that a grave doubt in the case of the prosecution arises in this case in
favour of the accused.
7. Nextly, the learned counsel for the accused has argued vehemently
that the earliest complaint received from the deceased himself was suppressed
by the police and only after receipt of death intimation, the prosecuting
agency obtained the complaint Ex.P-1 from P.W.1 on 28.8.1991 and prepared the
F.I.R., Ex.P-2 so as to avoid the delay and therefore, on this ground also,
the accused is entitled to the benefit of doubt. It is in the evidence of
P.W.10, Dr.Murugesan that on 19.8.1991, he sent the intimation Ex.P-7 to the
police with reference to the treatment of Arunachalam for the injuries said to
have been caused on 19.8.1991 at about 8.30 P.M. by assault with brick by one
known person and P.W.9, Adhimoolam, Head Constable received the intimation
Ex.P-7 and proceeded to the Government Hospital Palacode and obtained the
statement Ex.P-8 from the deceased Arunachalam at 10.15 P.M. and he has
stated that he forwarded both Exs.P-7 and P-8 to Marandahalli Police Station
having jurisdiction over the place of occurrence for further action. As has
been rightly argued by the learned counsel for the accused, the prosecution
has not explained anything about the fate of the complaint given by the
deceased himself under Ex.P-8. It is admitted by P.W.13, Arumugam, the then
Inspector incharge of Marandahalli Police Station, that he was holding
additional charge of Palacode Circle Inspector on 19.8.1991 while he was
serving as Inspector of Police Kaveripattinam and he has not explained as to
whether the law was set in motion on receipt of Exs.P-7 and P-8 by Palacode
Police Inspector and in this connection, it is relevant to note that only on
28.8.1991 after receiving the complaint Ex.P-1 from P.W.1 a case was
registered in Crime No.620/91 of Marandahalli Police Station and thereafter,
Ex.P-2 express F.I.R. was prepared and sent to the Court along with Ex.P-1
and copies to the higher police officials. Though the learned Government
Advocate (Criminal side) has made a feeble attempt to show that the initial
complaint given by the deceased under Section Ex.P-8 was given a number under
P.I.R. 103/91 dated 20.8.1991 such an entry cannot cure the lacuna in the
very basis of the case of the prosecution. In view of the decision in
T.T.ANTONY v. STATE OF KERALA (2001 AIR SCW 2571), it is well settled
proposition of law that as regards cognizable offence, there can be no second
F.I.R. in respect of the same cognizable offence, same incident or
occurrence. But in this case, such second F.I.R. had not only been
registered, but had also set the law in motion. In this context, it is useful
to refer the decision in THULIA KALI v. STATE OF TAMIL NADU (1974 L.R.(Crl.)
(J.S.) 30) which laid down the proposition as follows:-
“The importance of the above report can hardly be over-estimated from
the standpoint of the accused. The object of insisting upon prompt lodging of
the report to the police in respect of commission of an offence is to obtain
early information regarding the circumstances in which the crime was
committed, the names of the actual culprits and the part played by them as
well as the names of eye-witnesses present at the scene of occurrence. Delay
in lodging the first information report quite often results in embellishment
which is a creature of afterthought. On account of delay, the report not only
gets bereft of the advantage of spontaneity, danger creeps in of the
introduction of coloured version, exaggerated account or concocted story as a
result of deliberation and consultation. It is, therefore, essential that the
delay in the lodging of the first information report should be satisfactorily
explained.”
Hence, the contention of the learned counsel for the accused that inaction on
the part of the investigating agency immediately after receipt of the
complaint from the deceased himself is fatal to the prosecution has to be
accepted, especially, in view of ratio laid down in the said decisions and
therefore, the filing of second complaint and F.I.R., Exs.P-1 and P-2
respectively, after a considerable delay in this case cannot cure the defect
in the prosecution case. On this ground also, I find that the prosecution has
miserably failed to explain satisfactorily the delay in prosecuting the case
and therefore, the accused is entitled to the benefit of doubt.
8. The learned counsel for the accused has urged further in his
argument that the recovery of M.O.1 alleged to have been made by the
prosecution cannot be true for the simple reason that as per the evidence
adduced by the prosecution in this case, the place of occurrence was cleaned
on the same day immediately after the police visited the spot and since the
occurrence is said to have taken place on 19.8.1991 inasmuch as the evidence
of the prosecution is that on 28.8.2001 at about 7.15 P.M. M.O.1 brick was
recovered from the place of occurrence, the allegation of the prosecution in
this respect becomes unbelievable. It is in this circumstance that the trial
Court has rejected the contention of the prosecution for conviction under
Section 302 I.P.C. and held that the accused was liable to be punished only
for a lesser offence under Section 335 I.P.C. As rightly argued by the
learned counsel for the accused, if the recovery of the very offensive weapon,
namely, M.O.1 has not been proved beyond doubt, I am of the opinion that the
accused is entitled for an acquittal even of the charge under Section 335
I.P.C.
9. Nextly, the learned counsel for the accused has adverted to my
attention to the evidence of P.W.1, P.W.2 and P.W.6 who are closely related to
the deceased and argued that none of the independence witnesses who are
alleged to have been present in the place of occurrence has been examined by
the prosecution and therefore, the conviction rendered on the basis of the
interested testimony is not sustainable. Similarly, he has urged that the
private Doctor who treated the deceased for about 3 days immediately after his
discharge from the General Hospital, namely, Dr.Siva Shanmugam of Palacode was
not examined by the prosecution and therefore, the evidence of P.W.12 Dr.Naina
Rani that Arunachalam died of Tetanus would have been the probable cause of
death as a result of the alleged assault by the accused with the brick M.O.1.
Having regard to the totality of the evidence adduced by the prosecution in
this case, I am of the opinion that such contention also deserves
consideration. On a careful perusal of the evidence on record and in the
light of the arguments advanced on either side, I find that it is difficult to
uphold the conviction of the accused even under Section 335 I.P.C. and
therefore, I find that the appellant/accused is entitled for acquittal.
10. The appeal is allowed accordingly and the conviction and sentence
passed by the trial court are set aside and the accused is acquitted of the
charge under Section 335 I.P.C. Fine amount if paid by him shall be refunded.
Bail bond if any shall stand cancelled.
Index: Yes
Website: Yes
dpp
To
1. The Principal Sessions Judge, Dharmapuri District,
at Krishnagiri.
2. The Inspector of Police, Kaveripattinam.
3. The Public Prosecutor, High Court, Madras.