BEFORE THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 10-06-2009 CORAM THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR Crl.R.C.No.1632 of 2005 Siva .. Petitioner / A1 Vs. State of Tamil Nadu rep by Sub-Inspector of Police, Kandamangalam Police Station, Villupuram District. .. Respondent / Complainant
Prayer:- This Revision has been filed under Sections 397 & 401 of Cr.P.C., against the judgment dated 23.11.2005 in C.A.No.49 of 2005 passed by the learned Principal Sessions Judge, Villupuram, confirming the judgment dated 23.06.2005 in S.C.No.173 of 2004 on the file of the Chief Judicial Magistrate-cum-Assistant Sessions Judge, Villupuram.
For Petitioner : Mr.M.Devaraj For Respondent : Mr.R.Munniapparaj Government Advocate (Crl.Side) JUGMENT This Criminal Revision Case has been preferred against the judgment of the learned Principal Sessions Judge, Villupuram, dated 23.11.2005 made in C.A.No.49 of 2005, confirming the conviction recorded and the sentence imposed on the revision petitioner herein by the trial Court viz., learned Chief Judicial Magistrate-cum-Assistant Sessions Judge, Villupuram made in S.C.173 of 2004, dated 23.06.2005. 2.The petitioner in this Criminal Revision Case, who figured as A1 in S.C.No.173 of 2004 on the file of the Chief Judicial Magistrate-cum- Assistant Sessions Judge, Villupuram, was prosecuted along with three other persons viz., Selvam, Sankar and Murthy, arrayed as A2 to A4 in the said Sessions Case. They stood charged in the said Sessions Case as follows:- The revision petitioner (A1) stood charged for offences punishable under Section 304(ii), 352 & 324 r/w 34 IPC. The other three persons viz., A2 to A4 stood charged for offences punishable under Section 304(ii) r/w 34, Section 352 and Section 324 IPC.
3.After trial, the Trial Court pronounced a judgment on 23.06.2005 holding the accused 2 to 4 not guilty of any of the offences with which they stood charged and acquitting them of all the charges framed against them. The trial Court held the revision petitioner herein (A1) not guilty of two out of the three charges viz., charges for the offences punishable under Sections 352 and 324 r/w 34 IPC (in respect of the alleged injury caused to P.W.2-Chandran). However, the trial Court holding the revision petitioner (A1) guilty of an offence punishable under Section 324 IPC, instead of an offence punishable under Section 304 IPC convicted him for the offence under Section 324 IPC (as against the deceased) and sentenced him to undergo rigorous imprisonment for three years and to pay a fine of Rs.3,000/-. A default sentence of six months rigorous imprisonment was also awarded to be undergone by the revision petitioner in case of default in payment of fine.
4.No appeal or revision was preferred against the acquittal of A2 to A4 and the acquittal of the revision petitioner (A1) for the offences punishable under Section 352, 324 r/w 34 IPC (charge Numbers 2 to 5 framed in the trial court). The revision petitioner (A1) alone preferred an appeal in C.A.No.49 of 2005 on the file of the learned Principal Sessions Judge, Villupuram, challenging his conviction for the offence punishable under Section 324 IPC in respect of charge Number 1 framed for an offence punishable under Section 304(ii) IPC and the sentence imposed thereon as indicated supra.
5.The learned Principal Sessions Judge, Villupuram, after hearing, concurred with the judgment of the trial court, dismissed the appeal and thereby confirmed the conviction recorded and the sentence imposed by the learned trial Judge for an offence punishable under Section 324 IPC.
6.Questioning the legality and correctness of the said judgment of the learned Principal Sessions Judge, Villupuram, by which the conviction recorded and the sentence passed by the trial court for an offence punishable under Section 324 IPC against the revision petitioner was confirmed, the present Criminal Revision Case has been preferred by the first accused on various grounds set out in the grounds of Criminal Revision Case.
7.This Court heard the submissions made by Mr.M.Devaraj, learned counsel appearing for the petitioner and by Mr.R.Munniapparaj, learned Government Advocate (Crl.Side) appearing for the respondent.
8.Based on the following allegations the revision petitioner and the other three persons were prosecuted for the offences punishable under Sections 304(ii), 304(ii) r/w 34, 352, 324, 324 r/w 34 IPC;
(a) Due to election rivalry the revision petitioner herein along with Selvam, Sankar and Murthy (A2 to A4) trespassed into the house of the deceased Venkatesan in Krishnapuram Village, Villupuram District, at 4.30 pm on 18.10.2001 with an intention of attacking the deceased. Out of the above said four accused persons, the revision petitioner (A1) caught hold of the shirt of the deceased Venkatesan, pulled him out of the house and attacked him with a knife on his head. It was followed by an assault on the deceased by Selvam (A2) on the back of the deceased with a stick. When P.W.2 -Chandran, the elder brother of the deceased, intervened, he was assaulted with a stone by Sanker (A3) and Murthy (A4). P.W.3-Manikandan, the son of P.W.2, who was also there in the scene of occurrence, was assaulted by Salvam (A2) with a stick. The revision petitioner (A1) was adumbrating that he would kill all the above said persons, while they were attacked.
(b)After the occurrence, the deceased Venkatesan, who sustained injuries on the head, was initially taken to Karikkalampakkam Community Health Centre (a Government Institution), Karikkalampakkam, where he was examined at about 7.40 pm on the date of occurrence by P.W.7- Dr.J.Mary. After going through the X-ray and based on the clinical examination made by her, P.W.7 opined that the injuries sustained by the deceased were simple in nature. However, the deceased Venkatesan was given further treatment in Government Hospital, Pondicherry (now Puducherry), then at ‘JIPMER’ Hospital, Puducherry and lastly in Government General Hospital, Chennai. The deceased Venkatesan was given treatment for four months in Government General Hospital, Chennai, as an in-patient.
(c)On 01.04.2002, the wife of the deceased viz., P.W.1-Amaravathy lodged a complaint on the file of the Kandamangalam Police Station, marked as Ex.P.1. Based on the complaint, a case was registered on the file of the said Police Station in Cr.No.69 of 2002 against all the four accused persons for offences punishable under Section 323, 324 & 506(ii) IPC. The FIR prepared for the said purpose in printed format is Ex.P.9. Subsequent to the registration of the case, the deceased Venkatesan was discharged from hospital on 4.4.2002, and after discharge he died on 11.4.2002 at about 11.00 p.m. in his house in Krishnapuram Colony. After his death, the same was intimated to the police, the case was altered by including section 302 IPC and an alteration report was sent to the concerned Jurisdictional Magistrate on 12.4.2002. (The said alteration report has been marked as Ex.P.11. The death intimation given to the police by P.W.2-Chandran in writing has been marked as Ex.P.12.) Thereafter, inquest was conducted and further investigation was made.
(d)On completion of investigation, the Investigating Officer submitted a final report before the Judicial Magistrate No.II, Villupruam, alleging the commission of an offence punishable under Section 304(ii) r/w 34 IPC by the revision petitioner (A1) and offences punishable under Sections 352 & 324 r/w 34 IPC by the said other accused persons viz., A2 to A4.
9.The said final report was taken on file by the learned Judicial Magistrate No.II, Villupuram as PRC.No.52 of 2003. After, supplying copies of the records proposed to be relied on by the prosecution under Section 207 Cr.P.C. to the accused persons, the learned Judicial Magistrate committed the case for trial to the Sessions Court. The case was taken on file by the learned Principal Session Judge as S.C.No.173 of 2004 in the Sessions Division of Villupuram and the same was made over to the learned Chief Judicial Magistrate / Assistant Session Judge, Villupuram for disposal according to law.
10.Though the Investigating Officer had submitted a final report alleging commission of an offence punishable under Section 304(ii) r/w 34 IPC by the Revision Petitioner (A1) and offences punishable under Sections 352 & 324 r/w 34 IPC by the other accused, the trial court framed charge No.1 against the revision petitioner (A1) for an offence punishable under Section 304(ii) IPC, charge No.2 for an offence punishable under Section 304(ii) r/w 34 IPC against A2 to A4, charge No.3 for an offence punishable under Section 352 IPC against all the four accused, charge No.4 for an offence punishable under Section 324 IPC against A2 to A4 and Charge No.5 for an offence punishable under Section 324 r/w 34 IPC against the revision petitioner (A1).
11.The accused persons pleaded not guilty. In order to substantiate the charges, P.W.1 to P.W.15 were examined and Ex.P.1 to Ex.P.16 were marked on the side of the prosecution. No material object was produced. After questioning the accused under Section 313 Cr.P.C., regarding the incriminating materials available for the offences adduced on the side of the prosecution, the accused stated that they had no oral and documentary evidence to be adduced on their side.
12.The learned trial Judge heard the arguments advanced on either side, considered the evidence brought before him in the light of such arguments and on such consideration, acquitted A2 to A4 of all the chargers viz., charge Nos.2, 3 & 4 with which they stood charged. The trial Court also held the revision petitioner (A1) not guilty of offences punishable under Sections 352 & 324 r/w 34 IPC, and hence he was acquitted of charge Nos.3 & 5. So far as charge No.1 is concerned viz., the charge for an offence punishable under Section 304(ii) is concerned, the trial court held that the revision petitioner (A1) was guilty of an offence punishable under Section 324 IPC instead of an offence of culpable homicide not amounting to murder punishable under Section 304(ii) IPC and sentenced him as indicated supra.
13. The said judgment of conviction and sentence was challenged before the lower appellate Court viz., Court of the learned Principal Sessions Judge, Villupuram, in C.A.No.49 of 2005 mainly on the ground of delay in lodging the FIR. In addition to that many improbabilities were also pointed out before the lower appellate court. The lower appellate court rejecting the contentions raised before it on behalf of the revision petitioner hearin (A1), dismissed the appeal holding that there was no merit in it and thereby confirmed the conviction and sentence so far as the revision petitioner is concerned.
14.The correctness and legallity of the said judgment of the lower appellate Court is questioned in this Criminal Revision Case.
15.The point that arose for consideration in this revision case is as follows:-
Whether the judgment of the lower appellate Court, confirming the conviction of the revision petitioner for an offence punishable under Section 324 IPC and the sentence of punishment passed thereof by the trial court, suffers from any defect or illegality warranting interference by this Court in exercise of its revisional powers?
16.Out of the four persons prosecuted in the very same Sessions Case three were acquitted and the revision petitioner (A1) alone was convicted not for the offence with which he stood charged viz., an offence punishable under Section 304(ii) IPC, but for a lesser offence viz., an offence punishable under Section 324 IPC. P.W.1 is the wife of the deceased Venkatesan. The deceased Venkatesan is said to have been attacked by the revision petitioner with a knife on his head. According to the prosecution version, the head injury caused by the revision petitioner using a knife ultimately resulted in the death of the deceased. But the trial court considering the evidence of the medical officer, who treated the deceased initially and the opinion of the medical officer who conducted autopsy, came to the conclusion that there was no direct nexus between the injuries allegedly caused by the revision petitioner (A1) and the death of the deceased Venkatesan. On the other hand, the trial Court came to the conclusion that the death was due to post operative complications resulting in intracerebral haemorrhage and brain edema. The trial court came to the said conclusion based on the medical evidence that there was a canceral cerebral tumor, for the removal of which surgical intervention was made. The Investigating Officer himself was not sure as to whether the injuries allegedly caused by the accused persons led to the death of the deceased Venkatesan. However, not having the courage to say that the injuries did not lead to the death of the deceased, he had chosen to submit a final report as if the injuries led to the death of the deceased Venkatesan, but expressing his conclusion the same would amount an offence of culpable homicide not amounting to murder punishable under Section 304(ii) IPC as no intention could be imputed to the assailants to cause the death of the deceased. There are averments found in Ex.P.1-complaint and the evidence of the witnesses P.W.1 to P.W.3 that the deceased was attacked by the revision petitioner (A1) adumbrating that he would kill him. Therefore, the assumption made by the Investigating Officer that there could not be any intention to cause death was not based on the materials collected by him. The Investigating Officer himself was not sure as to the cause of death and that is why he had chosen to submit a charge sheet alleging the commission of an offence punishable under Section 304(ii) IPC instead of an affence punishable under Section 302 IPC. However, the trial Court as well as the lower appellate Court approached the evidence adduced on the side of the prosecution regarding the cause of death in proper perspective and came to a correct conclusion that the injuries allegedly caused in the occurrence that took place on 18.10.2001 did not result in the death of the deceased and on the other hand, the complications following the removal of cancerous cerebral tumor found in the brain of the deceased Venkatesan alone led to his death. The said finding of the trial court, as confirmed by the lower appellate court, is based on sound principles of law regarding appreciation of evidence. Hence, the findings of the Courts below regarding cause of death deserves to be recorded so. In fact there is no appeal or revision against the said findings of the trial Court. For the reasons stated above, the findings of the trial Court that the injuries allegedly caused by the accused persons did not lead to the death of the deceased and that post operative complications after the removal of cancerous tumor found in the brain of the deceased alone was the cause of the death of the deceased, shall stand confirmed.
17.The only question that remains to be considered in this case is: “whether the case of the prosecution that the revision petitioner (A1) attacked the deceased with knife on his head and caused simple injuries has been substantiated by the prosecution beyond reasonable doubt?”
18.The case of the prosecution is that the revision petitioner (A1), due to the election rivalry, trespassed into the house of the deceased, held him by his shirt, pulled him out of the house and attacked him on his head with a knife proclaiming that he would kill him. Ofcourse, P.W.1 to P.W.3 have been examined eye witnesses for the said occurrence. But it is an undisputed fact that all the three witnesses are interested witnesses so far as they happen to be the close relatives of the deceased Venkatesan. P.W.1 is the wife, P.W.2 is the elder brother and P.W.3 is the brother’s son of the deceased Venkatesan. The witnesses being interested shall not be the sole ground for disbelieving and rejecting their evidence as unreliable. However, before accepting and acting on the evidence of such interested witnesses, it must be put to the test of careful scrutiny. Had the evidence of P.W.1 to P.W.3 been put to the test of careful scrutiny, the courts below would have come to the conclusion that there were improbabilities in the story propounded by the prosecution.
19.The prosecution case is that all the four accused together trespassed into the house of the deceased, whereupon the deceased was dragged out of the house by the revision petitioner (A1) to be followed by the attack on him by the revision petitioner (A1) and A2-Selvam. It is also the case of the prosecution that P.W.2 and P.W.3, who tried to intervene when the deceased was attacked, were also attacked by the Accused 2 to 4. According to the testimony of P.W.1, the revision petitioner (A1) attacked the deceased on his head with a knife and when his elder brother viz. P.W.2 intervened, he was jointly attacked by all the accused persons. But P.W.2 would say that the revision petitioner (A1) attacked (cut) the deceased on his head with a knife, whereas Sankar and Murthy (A3 & A4) attacked the deceased with sticks. It is his further statement that he intervened and he was attacked by Sanker (A3) alone with a stick. The testimony of P.W.3 is different from that of P.W.1 and P.W.2. He would state that the revision petitioner (A1) attacked the deceased on his head with a knife and when P.W.2 intervened, Murthy (A4) attacked P.W.2 with a stick on his back.
20.Apart from the above said contradictions among the evidence of P.W.1 to P.W.3, more vital and material contradictions are found, when their testimonies are compared with the complaint (Ex.P.1). None of the witnesses has stated that any one of the accused was armed with cycle chain and attacked anybody with cycle chain. On the other hand, Ex.P.1-complaint contains a recital to the effect that P.W.2 & P.W.3 were attacked with cycle chain and P.W.3 was attacked by all the accused with cycle chain, stone and sticks. In this regard the admission of P.W.3 assumes more importance. He admits that he did not sustain any injury “vdf;F monahJk; gltpy;iy”. P.W.4-Chandramathi has been examined as yet another eye witness. But, she would give a general statement that all the four accused persons entered the house of the deceased, dragged him out of the house and attacked him with weapons like stick and knife. She would also state that the deceased sustained a cut injury on his head and that P.W.2 also sustained injuries. However, she would state that she did not know who caused the injuries to the deceased and P.W.2.
21.The evidence of P.W.5-Duraisamy is quit contrary to the prosecution case. According to the prosecution case, A1 attacked the deceased on his head with a knife. But, P.W.4 would state that the revision petitioner (A1) handled a stick and attacked the deceased on his head. Similarly, P.W.6-Jayapal would state that the revision petitioner (A1) and Selvam (A2) were having sticks in their hands, which is quit contra to the prosecution case. Both of them were treated hostile and cross-examined on behalf of the prosecution. However, it yielded no fruitful result as the prosecutor was not able to elicit any point in favour of the prosecution case from the said witness.
22.Apart from the above said contradictions showing the improbabilities of the prosecution case, there is yet another discrepancy, fatal to the prosecution case. The occurrence took place on 18.10.2001. The complaint was lodged only on 01.04.2002. In fact, the date originally mentioned in the complaint (Ex.P.1) has been scored out and the date 01.04.2002 has been written. Such an inordinate delay of 5 = months in lodging the complaint and setting the law in motion has not at all been explained with convincing reasons. Even a delay of one day, if not explained, has been held to be fatal to the prosecution case. It is unnecessary to cite all the the judgments dealing with the consequences of unexplained delay in lodging the complaint. The court is aware of the position that mere delay, even for a longer period, alone will not be enough to disbelieve the prosecution case. But, when the delay is unexplained, it shall cause a reasonable suspicion that there could be concoction after deliberation and embellishment, and such unexplained delay shall be construed to be the time taken for deliberation, as a result of which a story with concoction and embellishment might have been brought forth. In this case, the only explanation offered by the prosecution is that since P.W.1, the wife of the deceased, had to be in the hospital taking care of her husband, there was a delay in lodging the complaint. But, P.W.2 & P.W.3, who are respectively the brother and brother’s son of the deceased, were very much available for lodging a complaint with the police. But they have not chosen to do so.
23.In addition to that, the deceased was taken to the Community Health Centre, (a Government Medical Institution), at the first instance for treatment. P.W.7-Dr.J.Mary is said to have given initial treatment to the deceased. She has stated in clear terms that there was no fracture on the skull. She has also stated in her evidence that when the deceased was brought to her for treatment, she was informed that he sustained injuries as he was attacked by four known persons on 18.10.2001 at about 5.00 pm with knife and sticks. If at all, it was true that the medical officer was furnished with such information, being apprised of the fact that the same was medico legal case, she should have given an intimation to the police. In fact, P.W.7 in her evidence has stated that such an intimation was given to the police. But, it is quit surprising that the police have not chosen to examine the deceased or the person who accompanied the deceased while he was taking treatment in the hospital and record the statement of such person for registering a case. The wound certificate issued by P.W.7 specifying the injuries sustained by the deceased has been marked as Ex.P.2. It is obvious from the wound certificate that X-ray for his skull was taken in the Government Hospital, in which no fracture in the skull was noticed. But nothing has been mentioned in Ex.P.2-wound certificate issued to the deceased or Ex.P.3-wound certificate issued to P.W.2, regarding any intimation given to the police. The inference that can be drawn from the same is that either the said documents would have been brought into existence subsequently or that the statement recorded pursuant to the intimation sent to the police by the medical officer would have been burked and Ex.P.1 should have been pressed into service after five months when the condition of the deceased became critical. If at all the police had got the intimation from the Community Health Centre, Karikkalampakka, they would have very well enquired P.W.7 and got information that the deceased had been sent to Government Hospital, from there to JIPMER Hospital and then to Government General Hospital, Chennai. There was ample time for the police to examine the deceased while he was taking treatment in the hospital. In Ex.P.9 FIR also no reason for the delay has been furnished. On the other hand, it has been simply noted that the delay was caused by the Defato-complainant. As the prosecution has come forward with a story that the deceased was not examined for the entire period of 5 = months (from the date of occurrence till he died), the same will definitely affect the prosecution case by giving room for a reasonable suspicion that the said time should have been used for deliberation, as a result of which the case has been concocted with embellishment.
24.Yet another aspect worth mentioning is that there is no clear cut evidence as to when the deceased was discharged from the hospital. The evidence of P.W.1 & P.W.2 are to the effect that when the doctors informed them that there was no chance of saving the life of the deceased, they got him discharged from the hospital and kept him in their house till he died on 11.04.2002. According to the evidence of P.W.2, two days after having been discharged from the hospital the deceased died. The evidence of P.W.2 as to who gave the intimation to the police regarding the death of the deceased is quit contrary to the documentary evidence. Ex.P.12 has been produced as the written intimation given by P.W.2 to the Sub-Inspector of Police on 12.04.2002. The same has been marked through P.W.11. Based on that intimation alone, the case was altered by adding the penal provision of Section 302 IPC under Ex.P.11 alteration report. However, P.W.2 would deny having given such an intimation to the police. On the other hand, it is his evidence that it was one Padmanaban and not P.W.2, who gave the intimation to the police after the death of the deceased. As pointed out supra the same is against the documentary evidence, which makes the veracity of P.W.1, as a whole, questionable.
25.All the aspects pointed out above have not been properly considered either by the trial court or by the lower appellate court. Had they considered them in a proper perspective, they could have held that there were many improbabilities in the prosecution case. It is the contention of the learned counsel for the petitioner that election to the local body was held on 18.10.2001, that during the course of the said election, there had been some problems somewhere else, the deceased might have sustained injuries in such an incident and that suppressing the said fact and burking the records that might have been brought into existence soonafter the incident, as a result of due deliberation, the case has been concocted against the revision petitioner and the other accused persons after a long gap of 5 = months. It is not in dispute that on the date of occurrence viz. 18.10.2001 election for panchayat board was held. The panchayat board election dispute itself has been projected as the motive for the revision petitioner and the other accused persons to attack the deceased and P.W.2 & P.W.3. As such this court has to accept the contention of the learned counsel for the revision petitioner that all the contradictions and defects found in the evidence of prosecution, coupled with the unexplained delay of 5 = months in lodging the complaint, will give rise to a reasonable suspicion regarding the case of the prosecution that the revision petitioner (A1) attacked the deceased with a knife and caused head injury. As rightly pointed out by the learned counsel for the revision petitioner, the courts below have failed to appreciate the evidence in proper perspective, disregarded the implications and legal consequences of the unexplained and inordinate delay in lodging the complaint and arrived at an erroneous conclusion that the revision petitioner (A1) was guilty of an offence punishable under Section 324 IPC.
26.For all the reasons stated above, this Court is convinced that the courts below have failed to apply proper principles of law, that there is manifest error in the approach made by the Courts below and that there is every reason to hold that the judgments of the Courts below convicting the appellant for an offence under Section 324 I.P.C. are tainted with defect, infirmity and illegality capable of being set aside and reversed by this Court in exercise of its power of revision.
27.In the result, the Criminal Revision Case succeeds and the conviction recorded and sentence awarded by the trial Court on the revision petitioner (A1) for the offence punishable under Section 324 IPC, which was confirmed by the lower appellate Court, is hereby set aside. The Revision Petitioner (A1) is acquitted holding him not guilty of any of offences with which he stood charged or any lesser offence. Fine amount, if any paid, shall be refunded to the revision petitioner.
ssv
To,
1.The Sub-Inspector of Police,
Kandamangalam Police Station,
Villupuram District.
2.The Public Prosecutor,
High Court,
Madras