BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 04/07/2007 CORAM: THE HONOURABLE MR.JUSTICE D.MURUGESAN and THE HONOURABLE MR.JUSTICE T.SUDANTHIRAM Criminal Appeal No.1533 of 2003 Thangam alias Subbaiya ... Appellant S/o.Rajan alias Periyan Accused vs. State, rep.by the Inspector of Police, Natham Police Station, Dindigul District. Crime No.390 of 2001 ... Respondent Complainant Appeal under Section 374 of the Criminal Procedure Code against the judgment, dated 10.04.2003, passed in S.C.No.32 of 2002 by the learned Additional Sessions Judge, Fast Track Court, Dindigul. !For Appellant ... Mr.V.M.R.Rajendran ^For Respondent ... Mr.M.Daniel Manoharan, Addl.Public Prosecutor. :JUDGMENT
(Judgment of the Court was delivered by D.MURUGESAN,J)
The appellant is the sole accused in Sessions Case No.32 of 2003 on
the file of the learned Additional Sessions Judge, Fast Track Court, Dindigul
and he was tried for the offence punishable under Section 302 IPC, found guilty,
convicted and sentenced to undergo life imprisonment by judgment dated
10.04.2003. Challenging the said conviction and sentence, the appellant/accused
has preferred this appeal.
2.The appellant/accused was put on trial by the prosecution on the
charge that due to previous enmity, at about 7.30 p.m. on 12.07.2001, he
attacked the deceased on his neck, head and hand and thereby caused his death.
To prove the charge against the appellant/accused, the prosecution examined 13
witnesses, marked 19 documents and produced seven material objects.
3.(a)The case of the prosecution is that the death procession one of
Natarajan was taken on 04.07.2001 and in the said procession, since the
appellant stamped the leg of the deceased, the deceased got angry and hence
there was enmity between the accused and the deceased. While the deceased was
sitting in front of Muthalamman Temple on 12.07.2001 at about 7.30 p.m., along
with one Kanchivanam (P.W.2), the accused came there with an aruval and murdered
the deceased. The occurrence was witnessed by one Chinnadaikkan (P.W.1),
Kanchivanam (P.W.2), Rajamanickam (P.W.3) and Alaghu (P.W.4). P.W.1 thereafter
took the deceased to Government Rajaji Hospital at Madurai, along with one
Ramaiah (P.W.5) and admitted him in the hospital at 8.00 p.m. The deceased
died at about 9.00 p.m. and thereafter P.W.1 went to the Natham Police Station
and gave Ex.P-1 complaint.
(b)P.W.11, Dr.Meenakshi Sundram, admitted the deceased in the
hospital and gave treatment to the deceased and issued Accident Register, marked
as Ex.P-8. In spite of the treatment, the deceased succumbed to injuries at
9.00 p.m.
(c)P.W.10 is the Sub-Inspector of Police attached to Natham Police
Station. On 13.07.2001, when he was on duty, at about 6.00 a.m., P.W.1 appeared
before him and gave a written complaint (Ex.P-1), based on which he registered a
case in Crime No.390/2001 under Section 302 IPC and prepared an Express FIR,
marked as Ex.P-7, and despatched the same to the Judicial Magistrate No.3,
Dindigul.
(d)P.W.13, the Inspector of Police, Natham Police Station, received
the copy of Ex.P-7 FIR at 6.30 a.m. on 13.07.2001 and took up the case for
investigation. He visited the place of occurrence at 7.00 a.m., made an
observation and prepared an observation mahazar (Ex.P-2), attested by P.W.7
Village Administrative Officer and another. He also drew Ex.P-11, the rough
sketch. He recovered M.O.2, the bloodstained earth and M.O.3, the sample earth,
under Ex.P-3 mahazar attested by the same witnesses. Thereafter, he proceeded to
the hospital and conducted inquest on the body of the deceased in the presence
of panchayatdars and prepared Ex.P-12, the inquest report and thereafter
subjected the body for postmortem.
(e)Autopsy on the body of the deceased was conducted by P.W.12, the
doctor attached to Madurai Medical College Hospital at 11.45 a.m. on 13.07.2001
and after postmortem, he gave Ex.P-10, the postmortem certificate. After
postmortem, P.W.9, the Head Constable, recovered M.Os.5 to 7, the personal
wearing apparels of the deceased, from the body and handed over the same to the
Investigation Officer.
(f)In continuation of the investigation, on 15.07.2001 at about 7.30
a.m., P.W.13, the Investigation Officer, arrested the accused and based on his
confessional statement, admissible portion of it is marked as Ex.P-4, P.W.13
recovered M.O.1 aruval under Ex.P-6 mahazar. He also recovered M.O.4 shirt,
worn by the accused, under Ex.P-5 mahazar. P.W.13 completed the investigation
and filed the final report on 30.08.2001 against the accused for the offence
under Section 302 IPC.
4.When the accused was questioned under Section 313 of the Code
of Criminal Procedure about the incriminating materials found against him in the
evidence of prosecution witnesses, he denied each and every circumstances as
false and also denied his complicity in the crime. On the side of the accused
two witnesses were examined as D.Ws.1 and 2 and two documents were marked as
Exs.D-1 and D-2. The learned trial judge, placing reliance on the evidence of
P.W.1, the author of Ex.P-1 complaint, P.W.5 and Ex.P-8 Accident Register
relating to the injuries spoken to by P.W.11, the doctor, convicted the accused
under Section 302 IPC and sentenced him to undergo life imprisonment. Hence
this appeal.
5.In assailing the judgment of the lower court, Mr.V.M.R.Rajendran,
learned counsel appearing for the appellant, submitted that the very complaint
Ex.P-1 itself is not believable even as per the evidence of prosecution
witnesses. When once the very complaint is doubtful, the conviction on the
basis of such complaint, followed by prosecution case, is unsustainable. He
would draw our attention to certain discrepancies found in the evidence of
prosecution witnesses to bring home the above point. Learned counsel would
further submit that though P.W.1 was stated to be an eye-witness and the
brother of the deceased and took the deceased to the hospital, he has not
informed P.W.11, the Doctor, as to either the name of the assailant or the
number of assailant/assailants. On the contrary, P.W.5, who was not an eye-
witness, accompanied P.W.1 along with the deceased to the hospital, had informed
the doctor that the deceased was assaulted by a known person. P.W.11, the
doctor who first examined the deceased, was categorical in his evidence that he
prepared Ex.P-8, the Accident Register and in the said document he has entered
that the deceased was attacked by three known male persons and the same was
informed to him in the hospital. According to P.W.1, on coming to know that the
deceased succumbed to injuries at about 9.00 p.m., he left the hospital, but is
said to have given the complaint Ex.P-1 only on the next day i.e. 13.07.2007 at
6.30 a.m. and there was no explanation as to why he has not immediately lodged
the complaint and his conspicuous absence from 9.30 p.m. on 12.07.2001 to
6.00 a.m. on 13.07.2001 throws serious doubt on the very Ex.P-1 complaint
itself. He would also submit that as per the evidence of P.W.12, the postmortem
doctor, injury Nos.1, 3 and 4 could have been caused by one weapon and injury
No.2 could have been caused by some other weapon. In view of the medical
evidence, coupled with the fact that the evidence of P.W.11, the doctor who had
prepared Ex.P-8 Accident Register showing that the deceased was assaulted by
three known male persons, the complaint said to have been given by P.W.1 cannot
be believed and the delay in lodging the complaint also relevant for
disbelieving the complaint.
6.We have also heard the learned Additional Public Prosecutor.
7.It is the specific case of the prosecution that immediately on the
occurrence, i.e. on 12.07.2001 at 7.00 p.m., the deceased was taken to the
hospital by P.W.1 and P.W.5 and at 8.00 p.m., P.W.11, the doctor, had seen the
deceased at the earliest point of time and prepared Ex.P-8, the Accident
Register. The deceased succumbed to injuries at 9.00 p.m. on the same day i.e.
on 12.07.2001. However, Ex.P-1 complaint was only at 6.00 a.m. on the next day.
In order to find out whether the complaint as lodged by P.W.1 in Ex.P-1 could be
believed or it is doubtful, the evidence of P.W.1, P.W.5, P.W.10, P.W.11 and
P.W.13, the Investigation Officer, are to be assessed.
8.According to P.W.1, who is none other than the brother of the
deceased, he had taken his brother, the deceased, to the hospital along with
P.W.5, who is not an eye-witness. Though in Ex.P-1 complaint he has referred
the name of the accused, nevertheless he had not informed P.W.11, the doctor, as
to the assailant/assailants. On the other hand, P.W.5, who is not an eye-
witness, is stated to have informed the doctor that the deceased was attacked by
a known person. The above version of P.W.5 falls to the ground for the simple
reason that in the original of Ex.P-8, marked in the court, P.W.11 has stated
that the deceased was assaulted by three known male persons. However, over the
word ‘three’ it is written in a different ink as ‘a’ by unknown person, but not
certainly by P.W.11, the doctor. The said manipulation in the original document
throws serious doubt about the number of persons involved in the offence.
P.W.11, the doctor who seen the deceased at the earliest point of time and who
prepared Ex.P-8 Accident Register had categorically deposed that he was informed
that the deceased was attacked by three male known persons. The above
information to P.W.11 Doctor was only by the deceased and by none other persons.
To arrive at the above conclusion, we have the following reasons.
(a)Firstly, P.W.1, the brother of the deceased, had not informed
anything about the assailants, either in numbers or in names, to the doctor and
he kept silent.
(b)Secondly, according to the prosecution, the information as to the
attack by a known person was given by P.W.5, who was not an eye-witness.
(c)Thirdly, the evidence of P.W.11, the doctor, is categorical as to
the number of assailants who attacked the deceased, namely three known male
persons. The above evidence of P.W.11, the doctor and his endorsement in Ex.P-8
Accident Register, is also admitted by the investigation officer P.W.13.
9.That apart, the deceased had sustained the following injuries, as
noted by P.W.12, the postmortem doctor, in Ex.P-10, the postmortem certificate.
“1.Gaping cut injury 17 cm x 4 cm x bone deep extending 1 cm lateral to
right angle mouth to the back of right side of neck. On dissection: The wound
found cutting the underlying muscles, vessels, nerves and partially cutting the
ramus of right side of of mandible.
2.Antero-posterior oblique cut injury 13 cm x 1 cm x brain deep seen on
right parietal region 1 cm lateral to mid line. The wound found cutting the
underlying parietal bone 12 cm x 1 cm x through and through and cutting the dura
and parietal lobe 10 cm x 1 cm x 1 cm.
3.Transversely oblique cut injury 18 cm x 2 cm x bone deep seen from the
right cheek to right side of back of neck cutting the lower part of right ear.
4.Cut injury left side of neck above downwards 15 cm x 5 cm x muscle deep
and cutting of left ear lobe.
5.Cut injury 9 cm x 3 cm x bone deep seen on the back of lower third right
forearm – direction below upwards. On dissection: The underlying muscles,
vessels, nerves and both bones found cut (defence wound).
6.Cut injury 9 cm x 2 cm x muscle deep seen on back of right shoulder.
7.Cut injury 3 cm x 1 cm x muscle deep, back of right shoulder 3 cm above
the previous injury.”
P.W.12, the postmortem doctor, in his evidence has stated that injury Nos.1, 3
and 4 could have been caused by one weapon. However, injury No.2 could have
been caused by a different weapon. The evidence of P.W.11 relating to the
number of persons involved in the offence and the evidence of P.W.12 relating to
the number of weapons used throw serious doubt on the theory of the prosecution
as to the involvement of the appellant/accused alone in the occurrence and the
weapon used was only one aruval.
10.Further, the complaint given by P.W.1, namely Ex.P-1, cannot also
be believed having regard to the conduct of P.W.1 himself. In the normal
circumstances, when he was the eye-witness and he had taken the deceased to the
hospital and that he being the brother of the deceased, he should have informed
P.W.11, the doctor, as to the involvement of atleast the number of accused, if
not the name of the accused in question. On the other hand, P.W.5, who was not
an eye-witness, had intimated the Doctor as to the attack by a known person.
The prosecution has not established as to how P.W.5 came to know that the
deceased was attacked by a single assailant and in turn informed the same to the
Doctor. Further, even according to P.w.1, on coming to know of the death of his
brother, the deceased, at 9.00 p.m, he left the hospital. In the normal
circumstances, going by a human conduct, he should have gone to the police
station directly and should have lodged the complaint giving the name of the
assailant as he was alleged to be the eye-witness to the occurrence. However,
his conduct was strange as could be seen from his very evidence that after he
left the hospital he did not go to the police station but went to the police
station only on the next day morning and lodged the complaint at 6.00 a.m.
There was absolutely no explanation as to his whereabouts after 9.30 p.m. on
12.07.2001 till 6.00 a.m. on 13.07.2001. The above conduct of P.W.1 throws
serious doubt on the complaint. Though in all cases delay would not be fatal to
the prosecution, it depends upon the other materials. Considering the facts of
the given case, with regard to the conduct of P.W.1, who is none other than the
brother of the deceased, had not even explained as to his conspicuous absence
from 9.00 p.m. on 12.07.2001 to 6.00 a.m. on 13.07.2001, the delay assumes
importance and consequently it should be fatal to the very prosecution case.
11.In this regard we may also refer to a decision of the Apex Court
in Rajeevan and Another vs. State of Kerala, reported in (2003) 3 SCC 355.
That is a case where the trial court, after coming to the conclusion that there
exists sufficient facts to doubt the genuineness of the FIR, coupled with the
delay in lodging the FIR, disbelieved the case of the prosecution and acquitted
the accused. On appeal, the High Court reversed the order of acquittal and
convicted the accused. On further appeal, the Supreme Court, after discussing
the consequences of delay in filing FIR and referring to earlier judgments, held
as follows:
“14.As feared by the learned counsel for the appellants, the possibility
of subsequent implication of the appellants as a result of afterthought, may be
due to political bitterness, cannot be ruled out. This fact is further
buttressed by the delayed placing of FIR before the Magistrate, non-satisfactory
explanation given by the police officer regarding the blank sheets in Ext.P-30,
counterfoil of the FIR and also by the closely written bottom part of Ext.P-1,
statement by PW 1. All these factual circumstances read with the aforementioned
decisions of this Court lead to the conclusion that it is not safe to rely upon
the FIR in the instant case. The delay of 12 hours in filing FIR in the instant
case irrespective of the fact that the police station is situated only at a
distance of 100 metres from the spot of incident is another factor sufficient to
doubt the genuineness of the FIR. ……” (emphasis supplied)
After holding so, the Hon’ble Supreme Court set aside the judgment of the High
Court and confirmed the order of acquittal by the trial Court.
12.We have further strong reasons for our above conclusion. It is
the evidence of P.W.13, the Investigation Officer, that an intimation was
received by the Head Constable attached to the Out-post Police Station in the
Hospital as spoken to by P.W.11, who in turn intimated the same to one
Sivakumar, Sub-Inspector of Police of Natham Police Station, examined as P.W.10
in the case. It is the further evidence of P.W.13 that P.W.10 left to the
hospital even at 1.00 a.m. on 13.07.2001 and thereafter he came back to the
police station at about 5.30 a.m. However, it is the evidence of P.W.10 that he
received the written complaint of P.W.1 only at 6.00 a.m. on 13.07.2001 and
registered the same in Crime No.390/2001 and prepared Ex.P-7 FIR and sent the
same to the Judicial Magistrate No.III, Dindigul. His evidence is conspicuously
silent about his visit to the hospital at 1.00 a.m. on the date even prior to
the registration of FIR. In the normal course, as and when an intimation is
received either from the hospital or the police officials attached to the out-
post police station located in the hospital, he should have registered the
intimation, as it is an intimation relating to the homicidal violence.
Nevertheless, he has not done so and he has also not examined any person in the
hospital when he visited it at 1.00 a.m. The explanation in this regard by
P.W.13 that the Sub-Inspector of Police informed him that there was nobody and
therefore he has not recorded any statement is only to be disbelieved.
13.The above sequence of evidence would only lead us to disbelieve
the case of the prosecution as to the lodging of Ex.P-1 complaint by P.W.1 at
6.00 a.m. on 13.07.2001 and it throws considerable doubt as to the complaint
Ex.P-1 and the evidence of P.w.1 who is said to be an eye-witness in this case.
In such circumstances, we are of the view that when the case against the
appellant is not proved beyond reasonable doubt that the appellant has murdered
the deceased, it is not safe to convict him and accordingly the conviction and
sentence imposed on the appellant are liable to be set aside and the appellant
is entitled for an acquittal.
14.Accordingly, the appeal is allowed and the conviction and
sentence imposed by the trial court in its judgment dated 10.04.2007 on the
appellant are set aside and he is acquitted of the charges levelled against him.
The appellant is directed to be released forthwith, unless his presence is
required in connection with any other case.
To:
1.The Principal Sessions Judge,
Dindigul District,
Dindigul.
2.The Additional Sessions Judge,
Fast Track Court,
Dindigul.
3.The Inspector of Police,
Natham Police Station,
Dindigul District.
4.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.