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State vs Sivasankar on 20 September, 2010

Madras High Court
State vs Sivasankar on 20 September, 2010
       

  

  

 
 
 IN THE HIGH COURT OF JUDICATURE AT MADRAS

Date:- 20.09.2010

Coram

The Honourable Mr. Justice M. CHOCKALINGAM 

and

The Honourable Mr. Justice M. SATHYANARAYANAN

Crl. A. No.69 of 2010

State, rep. by
the Inspector of Police,
Kandhikuppam Police Station,
Krishnagiri District.					... Appellant

..Vs..


1. Sivasankar
2. Munusami @ Kozhi Munusami
3. Nondi Thirupathi
4. Salammal @ Saliammal				... Respondents

	Appeal filed against the judgment dated 25.11.2009 passed by the learned Additional Sessions Judge, Krishnagiri in S.C. No.190 of 2006.

		For Appellant     : Mr. V.R. Balasubramanian,
				 	Addl. Public Prosecutor

		For Respondent : Mr.  Rajagopalan,
				        Sr. counsel for
				        Mr. P. Ezhil Nilavan
				         

JUDGMENT

(Judgment was delivered by M. CHOCKALINGAM, J.)

This appeal is arisen from the judgment of acquittal dated 25.11.2009 passed by the learned Additional Sessions Judge, Krishnagiri in S.C. No.190 of 2006, whereby first and second appellants stood charged for the offences under Sections 148, 307 and 302 of the Indian Penal Code and third and fourth appellants stood charged for the offences under Sections 148, 307 read with 149, 109 and 302 read with 149 of the Indian Penal Code and on trial, the appellants were acquitted of all the charges framed against them.

2. The short facts necessary for the disposal of the case can be stated thus:

(i) P.W.1 is the son of the deceased Rajamma. P.W.2 is the sister of P.W.1. The first accused entertained a suspicion that P.W.1 had developed illicit intimacy with his wife and apart from that, P.W.1 did not sell his 50 cents of land to the niece of the first accused. Aggrieved over the same, the first accused was waiting for an opportunity to do away P.W.1.

(ii) As per the complaint, on 31.12.2004 at about 7.30 p.m. when P.Ws.1, 2 along with the deceased Rajamma were sitting on the steps of the house of the deceased and taking dinner, all the accused were standing in the upstairs of the house of P.W.4, having petrol filled bottles and while accused 4 and 5 lit fire, accused 1 to 3 threw the bottles towards P.W.1 and in that process, P.W.1 and deceased Rajamma both sustained injuries. This was actually witnessed by P.W.2, who was also sitting by the side. On hearing the noise, P.W.3 came over there.

(iii) From the place of occurrence, the deceased Rajamma `was taken to the Government Hospital, Krishnagiri, where she was given initial treatment by the Doctor. Accident Register was marked as Ex.P12. P.W.1 was also given treatment in the said Hospital and the Wound Certificate is marked as Ex.P11. Thereafter, the deceased Rajamma was taken to Victoria Hospital, Bangalore where she was given treatment by P.W.14 Doctor.

(iv) On receipt of intimation, P.W.10 Head Constable proceeded to the Government Hospital, Krishnagiri and recorded the statement of P.W.1, on the strength of which, a case came to the registered by the appellant-police in Crime No.399 of 2004 for the offences under Sections 147 and 307 of the Indian Penal Code and Express First Information Report Ex.P10 was despatched to the Court.

(v) On receipt of copy of First Information Report, P.W.16 Inspector of Police took up investigation, went to the place of occurrence, made an inspection and prepared Observation mahazar Ex.P2 and rough sketch Ex.P14. He also recovered Material Objects from the place of occurrence under the cover of mahazar Ex.P3. He has also interrogated the witnesses and recorded their statements under Section 161 of the Criminal Procedure Code. Despite treatment, the deceased Rajamma died in the Hospital. Hence the case was amended to one under Section 302 of the Indian Penal Code. Amended Report Ex.P9 was sent to the Court.

(vi) Thereafter, P.W.16 Inspector of Police conducted inquest on the dead body in the presence of witnesses and the inquest report is marked as Ex.P13 and sent the dead body for conducting autopsy through requisition Ex.P4. P.W.6 Doctor, who conducted autopsy, issued post-mortem Certificate Ex.P5 wherein he has opined that the death is due to Septicaemic as a result of burn injuries sustained by him. All the accused persons were arrested on 1.1.2005 and they were sent for judicial remand. All the material objected were sent to Forensic Department for chemical analysis and the chemical analysis report is marked as Ex.P8. On completion of investigation, final report is filed. The case was committed to the Court of Sessions. Necessary charges were framed against the accused.

3. In order to substantiate its case, the prosecution examined 16 witnesses and relied on 14 documents and also relied on M.O.1. On completion of examination of witnesses on the side of the prosecution, when the accused were questioned under Section 313 of the Criminal Procedure Code, they denied them as false. No witness was examined on the side of the accused.

4. The Court below heard the arguments advanced on either side and took the view that the prosecution has not proved its case beyond reasonable doubt and recorded an order of acquittal. Hence, this appeal is filed at the instance of the appellant-State.

5 Advancing arguments on behalf of the appellant, learned Additional Public Prosecutor would submit that in the instant case, the judgment of the Trial Court was perverse and the Trial Court made an order of acquittal erroneously, while the prosecution has placed necessary and sufficient evidence before the trial Court. In the instant case, the occurrence had taken place at about 7.30 p.m. on 31.12.2004. The occurrence was witnessed by P.Ws.1 and 2. In the same transaction, one Rajamma, mother of P.Ws.1 and 2 died. P.W.1 was not only an eye witness but also an injured witness.

6. Learned counsel for the State added further that in a given case like this, when the eye witness happened to be the injured witness, his evidence should not be discarded unless and until strong circumstance is brought forth or strong reason is noticed by the Court. In the instant case, P.W.1 has categorically spoken to about the occurrence. This evidence is corroborated by the evidence of P.W.2 that when they are all sitting in front of the house and taking food, accused 1 to 3 who are having the petrol filled bottles in their hands, threw them from the upstairs of P.W.4’s house after accused 4 and 5 lit the fire. P.W.1 was targetted in that process. But, not only P.W.1 but also Rajamma sustained burn injuries. This evidence was fully corroborated through medical evidence. In such circumstances, the Trial Court should not have rejected the case of the prosecution that too in a given case like this when direct evidence was available.

7. Learned counsel for the State added further that in the instant case, the learned Trial Judge disbelieved the evidence of P.Ws.1 and 2 merely resting the judgment on the sketch prepared by the Investigating Officer. Even assuming the sketch was found to be defective, the learned Trial Judge cannot reject the evidence of the witnesses, who have spoken to about the truth of the case. Learned Trial Judge has also not considered all the aspects of the matter Therefore, the judgment of the trial court has got to be set aside and the respondents herein have got to be dealt with in accordance with law.

8. The Court heard the learned Senior Counsel for the respondents, who made the submissions in his sincere attempt for sustaining the judgment of acquittal passed by the trial Court. The Court paid its anxious consideration and also made thorough scrutiny of the entire materials available.

9. The respondents stood charged before the Trial Court, alleging that on 31.12.2004 at about 7.30 p.m., when P.Ws.1 and 2 were sitting along with the deceased Rajamma in front of the house by taking food, accused 1 to 5 were all in the upstairs of the house, which belongs to P.W.4 and from that house, accused 1 to 3 threw petrol filled bottles after it was being lit fire by accused 4 and 5. In that process, P.W.1 and his mother Rajamma sustained burn injuries and the said Rajamma died. Pursuant to the said incident, P.W.1 has informed the same to the police. Before analysing the evidence, which led the Trial Court to enter the judgment of acquittal, the Court must state that in a given case like this, if an appeal is preferred by the State seeking reversal of the judgment of the Trial Court, on appreciation of evidence, the appellate Court, in the absence of any of the two grounds, should not reverse the judgment. Firstly, the judgment of the Trial Court must be perverse or the judgment of the Trial Court regarding the order of acquittal is without any reason whatsoever. In the instant case, after the settled legal principle is applied, the Court is satisfied that the judgment of the Trial Court has got to be affirmed.

10. When the occurrence had taken place at about 7.30 p.m., P.Ws.1 and 2 and deceased Rajamma were sitting in front of their house. All the accused, according to P.Ws.1 and 2, were actually standing in the upstairs of the house of P.W.4. P.W.4 has turned hostile. According to the investigator, he prepared the sketch after making an inspection of the place of occurrence and preparing Ex.P2 Observation mahazar. Both the Observation mahazar and sketch were placed in the hands of the Court. As could be seen from the sketch, the distance between the house of P.Ws.1 and 2 and also the house of P.W.4, which is situated in the opposite direction, there was a gap of 40 feet. Insofar as sketch and observation mahazar are concerned, witness was examined by the prosecution. P.W.1 has categorically stated that what is found in sketch was not correct.

11. At this juncture, it is pertinent to point out that if the evidence of P.W.1 is analysed, the directions pointed out in the sketch are different. If the house of P.W.4 is not situated in opposite direction, accused 1 to 3 could not have thrown the petrol filled bottles. If the evidence of P.W.1 in respect of direction as spoken to by him has got to be accepted, the accused 1 to 3 have to throw the bottle from the opposite direction. If the sketch is found to be correct, as claimed by the Investigating Officer, there was a distance of 40 feet, the bottles could not be thrown from the distance of 40 feet.

12. It is not known as to whether any light was available. As rightly pointed out by the learned Trial Judge, the fourth accused was physically handicapped. If it be so, he cannot climb the upstairs and commit the offence. Apart from that, learned Trial Judge has also pointed out that even the deceased Rajamma has not given any statement and dying declaration of the said Rajamma was also not recorded. She has not even spoken to anybody that by whom those injuries were caused to her.

13. Learned Trial Judge has also pointed out that according to P.W.2, she was also sitting by the side of the mother and brother when bottles were thrown. It is highly doubtful as to how P.W.2 had not sustained any injury when she was also available at the spot along with P.W.1 and the deceased Rajamma. Added further, P.W.2 has categorically deposed that she did not witness as to who poured the petrol filled bottles and who lit the fire. Hence, the evidence of P.W.2 is doubtful. What was available is only the evidence of P.W.1. Relying upon the evidence of P.W.1, recording conviction is highly unsafe. Hence, the trial court has taken a correct view and recorded the order of acquittal, which now cannot be termed either perverse or done without any evidence. Under such circumstances, the judgment of the trial court has got to be affirmed. Accordingly, the appeal against acquittal is dismissed.

(M.C.J.) (M.S.N.J.)
20.09.2010
Index :- Yes.

Internet:- Yes.

ssa.

To

1. The Judicial Magistrate No.I,
Krishnagiri.

2. The Chief Judicial Magistrate
Krishnagiri.

3. The Additional Sessions Judge,
Krishnagiri.

4. The Superintendent,
Central Prison,
Krishnagiri.

5. The District Collector,
Krishnagiri.

6. The Director General of Police,
Madras 4.

7. The Public Prosecutor,
High Court, Madras.

M. CHOCKALINGAM, J. &
M. SATHYANARAYANAN, J.

ssa.

Crl. A. No.69 of 2010

20.09.2010

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