{"id":231429,"date":"2007-07-04T00:00:00","date_gmt":"2007-07-03T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/thangam-alias-subbaiya-vs-state-on-4-july-2007"},"modified":"2015-11-07T06:30:54","modified_gmt":"2015-11-07T01:00:54","slug":"thangam-alias-subbaiya-vs-state-on-4-july-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/thangam-alias-subbaiya-vs-state-on-4-july-2007","title":{"rendered":"Thangam Alias Subbaiya vs State on 4 July, 2007"},"content":{"rendered":"
Madras High Court<\/div>\n
Thangam Alias Subbaiya vs State on 4 July, 2007<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED : 04\/07\/2007\n\nCORAM:\nTHE HONOURABLE MR.JUSTICE D.MURUGESAN\nand\nTHE HONOURABLE MR.JUSTICE T.SUDANTHIRAM\n\nCriminal Appeal No.1533 of 2003\n\n\nThangam alias Subbaiya\t\t\t... Appellant\nS\/o.Rajan alias Periyan\t\n\t\t\t\t\t     Accused\n\nvs.\n\nState, rep.by the\nInspector of Police,\nNatham Police Station,\nDindigul District.\nCrime No.390 of 2001\t\t\t... Respondent\t\t\t\n\t\t\t\t\t    Complainant\n\n\t\tAppeal under Section 374 of the Criminal Procedure  Code against the\njudgment, dated 10.04.2003, passed in S.C.No.32 of 2002 by the learned\nAdditional Sessions Judge, Fast Track Court, Dindigul.\n\n!For Appellant   ...  Mr.V.M.R.Rajendran\n\n^For Respondent  ...  Mr.M.Daniel Manoharan,\n\t\t     Addl.Public Prosecutor.\n\n\n:JUDGMENT\n<\/pre>\n
     (Judgment of the Court was delivered by D.MURUGESAN,J)\t<\/p>\n
\t\tThe appellant is the sole accused in Sessions Case No.32 of 2003 on
\nthe file of the learned Additional Sessions Judge, Fast Track Court, Dindigul
\nand he was tried for the offence punishable under Section 302 IPC, found guilty,
\nconvicted and sentenced to undergo life imprisonment by judgment dated
\n10.04.2003.  Challenging the said conviction and sentence, the appellant\/accused
\nhas preferred this appeal.\n<\/p>\n
\t\t2.The appellant\/accused was put on trial by the prosecution on the
\ncharge that due to previous enmity, at about 7.30 p.m. on 12.07.2001, he
\nattacked the deceased on his neck, head and hand and thereby caused his death.
\nTo prove the charge against the appellant\/accused, the prosecution examined 13
\nwitnesses, marked 19 documents and produced seven material objects.\n<\/p>\n
\t\t3.(a)The case of the prosecution is that the death procession one of
\nNatarajan was taken on 04.07.2001 and in the said procession, since the
\nappellant stamped the leg of the deceased, the deceased got angry and hence
\nthere was enmity between the accused and the deceased.  While the deceased was
\nsitting in front of Muthalamman Temple on 12.07.2001 at about 7.30 p.m., along
\nwith one Kanchivanam (P.W.2), the accused came there with an aruval and murdered
\nthe deceased.  The occurrence was witnessed by one Chinnadaikkan (P.W.1),
\nKanchivanam (P.W.2), Rajamanickam (P.W.3) and Alaghu (P.W.4).  P.W.1 thereafter
\ntook the deceased to Government Rajaji Hospital at Madurai, along with one
\nRamaiah (P.W.5) and admitted him in the hospital at    8.00 p.m.  The deceased
\ndied at about 9.00 p.m. and thereafter P.W.1 went to the Natham Police Station
\nand gave Ex.P-1 complaint.\n<\/p>\n
\t\t(b)P.W.11, Dr.Meenakshi Sundram, admitted the deceased in the
\nhospital and gave treatment to the deceased and issued Accident Register, marked
\nas Ex.P-8.  In spite of the treatment, the deceased succumbed to injuries at
\n9.00 p.m.<\/p>\n
\t\t(c)P.W.10 is the Sub-Inspector of Police attached to Natham Police
\nStation.  On 13.07.2001, when he was on duty, at about 6.00 a.m., P.W.1 appeared
\nbefore him and gave a written complaint (Ex.P-1), based on which he registered a
\ncase in Crime No.390\/2001 under Section 302 IPC and prepared an Express FIR,
\nmarked as Ex.P-7, and despatched the same to the Judicial Magistrate No.3,
\nDindigul.\n<\/p>\n
\t\t(d)P.W.13, the Inspector of Police, Natham Police Station, received
\nthe copy of Ex.P-7 FIR at 6.30 a.m. on 13.07.2001 and took up the case for
\ninvestigation.  He visited the place of occurrence at 7.00 a.m., made an
\nobservation and prepared an observation mahazar (Ex.P-2), attested by P.W.7
\nVillage Administrative Officer and another.  He also drew Ex.P-11, the rough
\nsketch.  He recovered M.O.2, the bloodstained earth and M.O.3, the sample earth,
\nunder Ex.P-3 mahazar attested by the same witnesses. Thereafter, he proceeded to
\nthe hospital and conducted inquest on the body of the deceased in the presence
\nof panchayatdars and prepared Ex.P-12, the inquest report and thereafter
\nsubjected the body for postmortem.\n<\/p>\n
\t\t (e)Autopsy on the body of the deceased was conducted by P.W.12, the
\ndoctor attached to Madurai Medical College Hospital at 11.45 a.m. on 13.07.2001
\nand after postmortem, he gave Ex.P-10, the postmortem certificate. After
\npostmortem, P.W.9, the Head Constable, recovered M.Os.5 to 7, the personal
\nwearing apparels of the deceased, from the body and handed over the same to the
\nInvestigation Officer.\n<\/p>\n
\t\t(f)In continuation of the investigation, on 15.07.2001 at about 7.30
\na.m., P.W.13, the Investigation Officer, arrested the accused and based on his
\nconfessional statement, admissible portion of it is marked as Ex.P-4, P.W.13
\nrecovered M.O.1 aruval under Ex.P-6 mahazar.  He also recovered M.O.4 shirt,
\nworn by the accused, under Ex.P-5 mahazar.  P.W.13 completed the investigation
\nand filed the final report on 30.08.2001 against the accused for the offence
\nunder Section 302 IPC.\n<\/p>\n
\t\t4.When the accused was questioned under     Section 313 of the Code
\nof Criminal Procedure about the incriminating materials found against him in the
\nevidence of prosecution witnesses, he denied each and every circumstances as
\nfalse and also denied his complicity in the crime. On the side of the accused
\ntwo witnesses were examined as D.Ws.1 and 2 and two documents were marked as
\nExs.D-1 and D-2.   The learned trial judge, placing reliance on the evidence of
\nP.W.1, the author of Ex.P-1 complaint, P.W.5 and Ex.P-8 Accident Register
\nrelating to the injuries spoken to by P.W.11, the doctor, convicted the accused
\nunder Section 302 IPC and sentenced him to undergo life imprisonment.  Hence
\nthis appeal.\n<\/p>\n
\t\t5.In assailing the judgment of the lower court, Mr.V.M.R.Rajendran,
\nlearned counsel appearing for the appellant, submitted that the very complaint
\nEx.P-1 itself is not believable even as per the evidence of prosecution
\nwitnesses.  When once the very complaint is doubtful, the conviction on the
\nbasis of such complaint, followed by prosecution case, is unsustainable.  He
\nwould draw our attention to certain discrepancies found in the evidence of
\nprosecution witnesses to bring home the above point.  Learned counsel would
\nfurther submit that though P.W.1 was stated to be an eye-witness  and  the
\nbrother of the deceased and took the deceased to the hospital, he has not
\ninformed P.W.11, the Doctor, as to either the name of the assailant or the
\nnumber of assailant\/assailants.  On the contrary, P.W.5, who was not an eye-
\nwitness, accompanied P.W.1 along with the deceased to the hospital, had informed
\nthe doctor that the deceased was assaulted by a known person.  P.W.11, the
\ndoctor who first examined the deceased, was categorical in his evidence that he
\nprepared Ex.P-8, the Accident Register and in the said document he has entered
\nthat the deceased was attacked by three known male persons and the same was
\ninformed to him in the hospital.  According to P.W.1, on coming to know that the
\ndeceased succumbed to injuries at about 9.00 p.m., he left the hospital, but is
\nsaid to have given the complaint Ex.P-1 only on the next day i.e. 13.07.2007 at
\n6.30 a.m. and there was no explanation as to why he has not immediately lodged
\nthe complaint and his conspicuous absence from      9.30 p.m. on 12.07.2001 to
\n6.00 a.m. on 13.07.2001 throws serious doubt on the very Ex.P-1 complaint
\nitself. He would also submit that as per the evidence of P.W.12, the postmortem
\ndoctor, injury Nos.1, 3 and 4 could have been caused by one weapon and injury
\nNo.2 could have been caused by some other weapon.  In view of the medical
\nevidence, coupled with the fact that the evidence of P.W.11, the doctor who had
\nprepared Ex.P-8 Accident Register showing that the deceased was assaulted by
\nthree known male persons, the complaint said to have been given by P.W.1 cannot
\nbe believed and the delay in lodging the complaint also relevant for
\ndisbelieving the complaint.\n<\/p>\n
\t\t6.We have also heard the learned Additional Public Prosecutor.\n<\/p>\n
\t\t7.It is the specific case of the prosecution that immediately on the
\noccurrence, i.e. on 12.07.2001 at  7.00 p.m., the deceased was taken to the
\nhospital by P.W.1 and P.W.5 and at 8.00 p.m., P.W.11, the doctor, had seen the
\ndeceased at the earliest point of time and prepared Ex.P-8, the Accident
\nRegister.  The deceased succumbed to injuries at 9.00 p.m. on the same day i.e.
\non 12.07.2001.  However, Ex.P-1 complaint was only at 6.00 a.m. on the next day.
\nIn order to find out whether the complaint as lodged by P.W.1 in Ex.P-1 could be
\nbelieved or it is doubtful, the evidence of P.W.1, P.W.5, P.W.10, P.W.11 and
\nP.W.13, the Investigation Officer, are to be assessed.\n<\/p>\n
\t\t8.According to P.W.1, who is none other than the  brother of the
\ndeceased, he had taken his brother, the deceased, to the hospital along with
\nP.W.5, who is not an eye-witness.  Though in Ex.P-1 complaint  he has referred
\nthe name of the accused, nevertheless he had not informed P.W.11, the doctor, as
\nto the assailant\/assailants.  On the other hand, P.W.5, who is not an eye-
\nwitness, is stated to have informed the doctor that the deceased was attacked by
\na known person.  The above version of P.W.5 falls to the ground for the simple
\nreason that in the original of Ex.P-8, marked in the court, P.W.11 has stated
\nthat the deceased was assaulted by three known male persons.  However, over the
\nword ‘three’ it is written in a different ink as ‘a’ by unknown person, but not
\ncertainly by P.W.11, the doctor.  The said manipulation in the original document
\nthrows serious doubt about the number of persons involved in the offence.
\nP.W.11, the doctor who seen the deceased at the earliest point of time and who
\nprepared Ex.P-8 Accident Register had categorically deposed that he was informed
\nthat the deceased was attacked by three male known persons.  The above
\ninformation to P.W.11 Doctor was only by the deceased and by none other persons.
\nTo arrive at the above conclusion, we have the following reasons.\n<\/p>\n
\t\t(a)Firstly, P.W.1, the brother of the deceased, had not informed
\nanything about the assailants, either in numbers or in names, to the doctor and
\nhe kept silent.\n<\/p>\n
\t\t(b)Secondly, according to the prosecution, the information as to the
\nattack by a known person was given by P.W.5, who was not an eye-witness.\n<\/p>\n
\t\t(c)Thirdly, the evidence of P.W.11, the doctor, is categorical as to
\nthe number of assailants who attacked the deceased, namely three known male
\npersons.  The above evidence of P.W.11, the doctor and his endorsement in Ex.P-8
\nAccident Register, is also admitted by the investigation officer P.W.13.\n<\/p>\n
\t\t9.That apart, the deceased had sustained the following injuries, as
\nnoted by P.W.12, the postmortem doctor, in Ex.P-10, the postmortem certificate.
\n\t“1.Gaping cut injury 17 cm x 4 cm x bone deep extending 1 cm lateral to
\nright angle mouth to the back of right side of neck.  On dissection: The wound
\nfound cutting the underlying muscles, vessels, nerves and partially cutting the
\nramus of right side of of mandible.\n<\/p>\n
\t2.Antero-posterior oblique cut injury 13 cm x 1 cm x brain deep seen on
\nright parietal region 1 cm lateral to mid line.  The wound found cutting the
\nunderlying parietal bone 12 cm x 1 cm x through and through and cutting the dura
\nand parietal lobe 10 cm x 1 cm x 1 cm.\n<\/p>\n
\t3.Transversely oblique cut injury 18 cm x 2 cm x bone deep seen from the
\nright cheek to right side of back of neck cutting the lower part of right ear.\n<\/p>\n
\t4.Cut injury left side of neck above downwards 15 cm x 5 cm x muscle deep
\nand cutting of left ear lobe.\n<\/p>\n
\t5.Cut injury 9 cm x 3 cm x bone deep seen on the back of lower third right
\nforearm – direction below upwards.  On dissection: The underlying muscles,
\nvessels, nerves and both bones found cut (defence wound).\n<\/p>\n
\t6.Cut injury 9 cm x 2 cm x muscle deep seen on back of right shoulder.\n<\/p>\n
\t7.Cut injury 3 cm x 1 cm x muscle deep, back of right shoulder 3 cm above
\nthe previous injury.”\n<\/p>\n
P.W.12, the postmortem doctor, in his evidence has stated that injury Nos.1, 3
\nand 4 could have been caused by one weapon.  However, injury No.2 could have
\nbeen caused by a different weapon.  The evidence of P.W.11 relating to the
\nnumber of persons involved in the offence and the evidence of P.W.12 relating to
\nthe number of weapons used throw serious doubt on the theory of the prosecution
\nas to the involvement of the appellant\/accused alone in the occurrence and the
\nweapon used was only one aruval.\n<\/p>\n
\t\t10.Further, the complaint given by P.W.1, namely Ex.P-1, cannot also
\nbe believed having regard to the conduct of P.W.1 himself.  In the normal
\ncircumstances, when he was the eye-witness and he had taken the deceased to the
\nhospital and that he being the brother of the deceased, he should have informed
\nP.W.11, the doctor, as to the involvement of atleast the number of accused, if
\nnot the name of the accused in question.  On the other hand, P.W.5, who was not
\nan eye-witness, had intimated the Doctor as to the attack by a known person.
\nThe prosecution has not established as to how P.W.5 came to know that the
\ndeceased was attacked by a single assailant and in turn informed the same to the
\nDoctor.  Further, even according to P.w.1, on coming to know of the death of his
\nbrother, the deceased, at 9.00 p.m, he left the hospital.  In the normal
\ncircumstances, going by a human conduct, he should have gone to the police
\nstation directly and should have lodged the complaint giving the name of the
\nassailant as he was alleged to be the eye-witness to the occurrence.  However,
\nhis conduct was strange as could be seen from his very evidence that after he
\nleft the hospital he did not go to the police station but went to the police
\nstation only on the next day morning and lodged the complaint at   6.00 a.m.
\nThere was absolutely no explanation as to his whereabouts after 9.30 p.m. on
\n12.07.2001 till 6.00 a.m. on 13.07.2001.  The above conduct of P.W.1 throws
\nserious doubt on the complaint.  Though in all cases delay would not be fatal to
\nthe prosecution, it depends upon the other materials.  Considering the facts of
\nthe given case, with regard to the conduct of P.W.1, who is none other than the
\nbrother of the deceased, had not even explained as to his conspicuous absence
\nfrom 9.00 p.m. on 12.07.2001 to 6.00 a.m. on 13.07.2001, the delay assumes
\nimportance and consequently it should be fatal to the very prosecution case.\n<\/p>\n
\t\t11.In this regard we may also refer to a decision of the  Apex Court
\nin Rajeevan and Another  vs.  State of Kerala, reported in (2003) 3 SCC 355.
\nThat is a case where the trial court, after coming to the conclusion that  there
\nexists sufficient facts to doubt the genuineness of the FIR, coupled with the
\ndelay in lodging the FIR, disbelieved the case of the prosecution and acquitted
\nthe accused.  On appeal, the High Court reversed the order of acquittal and
\nconvicted the accused.  On further appeal, the Supreme Court, after discussing
\nthe consequences of delay in filing FIR and referring to earlier judgments, held
\nas follows:\n<\/p>\n
\t“14.As feared by the learned counsel for the appellants, the possibility
\nof subsequent implication of the appellants as a result of afterthought, may be
\ndue to political bitterness, cannot be ruled out.  This fact is further
\nbuttressed by the delayed placing of FIR before the Magistrate, non-satisfactory
\nexplanation given by the police officer regarding the blank sheets in Ext.P-30,
\ncounterfoil of the FIR and also by the closely written bottom part of   Ext.P-1,
\nstatement by PW 1.  All these factual circumstances read with the aforementioned
\ndecisions of this Court lead to the conclusion that it is not safe to rely upon
\nthe FIR in the instant case.  The delay of 12 hours in filing FIR in the instant
\ncase irrespective of the fact that the police station is situated only at a
\ndistance of 100 metres from the spot of incident is another factor sufficient to
\ndoubt the genuineness of the FIR.  ……” (emphasis supplied)<\/p>\n
After holding so, the Hon’ble Supreme Court set aside the judgment of the High
\nCourt and confirmed the order of acquittal by the trial Court.\n<\/p>\n
\t\t12.We have further strong reasons for our above conclusion.  It is
\nthe evidence of P.W.13, the Investigation Officer, that an intimation was
\nreceived by the Head Constable attached to the Out-post Police Station in the
\nHospital as spoken to by P.W.11, who in turn intimated the same to one
\nSivakumar, Sub-Inspector of Police of Natham Police Station, examined as P.W.10
\nin the case.  It is the further evidence of P.W.13 that P.W.10 left to the
\nhospital even at 1.00 a.m. on 13.07.2001 and thereafter he came back to the
\npolice station at about 5.30 a.m.  However, it is the evidence of P.W.10 that he
\nreceived the written complaint of P.W.1 only at 6.00 a.m. on 13.07.2001 and
\nregistered the same in Crime No.390\/2001 and prepared Ex.P-7 FIR and sent the
\nsame to the Judicial Magistrate No.III, Dindigul.  His evidence is conspicuously
\nsilent about his visit to the hospital at    1.00 a.m. on the date even prior to
\nthe registration of FIR. In the normal course, as and when an intimation is
\nreceived either from the hospital or the police officials attached to the out-
\npost police station located in the hospital, he should have registered the
\nintimation, as it is an intimation relating to the homicidal violence.
\nNevertheless, he has not done so and he has also not examined any person in the
\nhospital when he visited it at 1.00 a.m.  The explanation in this regard by
\nP.W.13 that the Sub-Inspector of Police informed him that there was nobody and
\ntherefore he has not recorded any statement is only to be disbelieved.\n<\/p>\n
\t\t13.The above sequence of evidence would only lead us to disbelieve
\nthe case of the prosecution as to the lodging of Ex.P-1 complaint by P.W.1 at
\n6.00 a.m. on 13.07.2001 and it throws considerable doubt as to the complaint
\nEx.P-1 and the evidence of P.w.1 who is said to be an eye-witness in this case.
\nIn such circumstances, we are of the view that when the case against the
\nappellant is not proved beyond reasonable doubt that the appellant has murdered
\nthe deceased, it is not safe to convict him and accordingly the conviction and
\nsentence imposed on the appellant are liable to be set aside and the appellant
\nis entitled for an acquittal.\n<\/p>\n
\t\t14.Accordingly, the appeal is allowed and the conviction and
\nsentence imposed by the trial court in its judgment dated 10.04.2007 on the
\nappellant are set aside and he is acquitted of the charges levelled against him.
\nThe appellant is directed to be released forthwith, unless his presence is
\nrequired in connection with any other case.\n<\/p>\n
To:\n<\/p>\n
1.The Principal Sessions Judge,
\n  Dindigul District,
\n  Dindigul.\n<\/p>\n
2.The Additional Sessions Judge,
\n  Fast Track Court,
\n  Dindigul.\n<\/p>\n
3.The Inspector of Police,
\n  Natham Police Station,
\n  Dindigul District.\n<\/p>\n
4.The Additional Public Prosecutor,
\n  Madurai Bench of Madras High Court,
\n  Madurai.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Thangam Alias Subbaiya vs State on 4 July, 2007 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-231429","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nThangam Alias Subbaiya vs State on 4 July, 2007 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/thangam-alias-subbaiya-vs-state-on-4-july-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Thangam Alias Subbaiya vs State on 4 July, 2007 - 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