{"id":48970,"date":"2010-03-30T00:00:00","date_gmt":"2010-03-29T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/rabi-vs-state-represented-by-on-30-march-2010"},"modified":"2018-12-09T04:01:27","modified_gmt":"2018-12-08T22:31:27","slug":"rabi-vs-state-represented-by-on-30-march-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/rabi-vs-state-represented-by-on-30-march-2010","title":{"rendered":"Rabi vs State Represented By on 30 March, 2010"},"content":{"rendered":"
Madras High Court<\/div>\n
Rabi vs State Represented By on 30 March, 2010<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED: 30\/03\/2010\n\nCORAM\nTHE HONOURABLE MR.JUSTICE P.MURGESEN\nAND\nTHE HONOURABLE MR.JUSTICE T.MATHIVANAN\n\nCriminal Appeal (MD)No.513 of 2002\n\nRabi\t\t\t\t\t\t...\tAppellant\n\t\t\nVs\n\nState represented by\nInspector of Police,\nThiruvattar Police Station,\nKanyakumari District.\nCrime No.409\/93\t\t\t\t\t..\tRespondent\n\n\nAppeal filed under Section 374 of Cr.P.C. against the judgment passed in\nS.C. No.74 of 1997 on the file of the Additional Sessions Judge, Kanyakumari\nDistrict at Nagercoil, dated 11.03.2002.\n\n!For Appellant\t   ... Mr.R.Shanmugasundaram,\n\t\t       Senior Counsel for\n\t\t       Mr.C.Mayilvahana Rajendran\n^For Respondent    ... Mr.P.N.Pandidurai,\n\t\t       Addl.Public Prosecutor\n\n\n:JUDGMENT\n<\/pre>\n
(Judgment of the Court was delivered by
\nP.MURGESEN, J.)<\/p>\n
\tThis Criminal Appeal is directed against the judgment passed in S.C. No.74
\nof 1997 on the file of the Additional Sessions Judge, Kanyakumari District at
\nNagercoil, dated 11.03.2002.\n<\/p>\n
\t2. The appellant is the first accused and the respondent is the
\ncomplainant.\n<\/p>\n
\t3. The case of the prosecution is as under:-\n<\/p>\n
\tP.W.1-Vincent is the resident of Kallankuzhi, Marthandanvilai. The
\ndeceased Ponnappan was his brother. P.W.2-Palaiyan is the resident of
\nKallankuzhi and he is an agriculturist. P.W.3-Chelliahkan and P.W.4-Singarayan
\nare also the residents of Kallankuzhi. P.W.5-Robinson is the resident of
\nManalikarai, Christhavapuram. P.W.6-Lazer is the resident of Vayanadu. The
\ndeceased’s wife is the sister of P.W.6.  P.W.7-Christudhas is the resident of
\nKallankuzhi and he is a coolie worker. P.W.8-Kanagappan is the resident of
\nAnaiyadi and he is also a coolie worker. P.W.9-Rasaiyan is the resident of
\nKallankuzhi. P.W.10-Thangam is the wife of the deceased Ponnappan.\n<\/p>\n
\t4. The deceased Ponnappan is the husband of P.W.10 and elder brother of
\nP.W.1. P.W.6 is the elder brother of P.W.10, and brother-in-law of the deceased.
\nThe first accused is the paternal uncle’s son of P.Ws.10 and 6. On 28.06.1993 at
\n11.30 p.m., the deceased and P.W.1 went to Mavaravilai to arrange labourers.
\nWhile they were returning from Mavaravilai to their house, the occurrence took
\nplace. The first accused-Rabi obstructed the deceased and attacked him with
\nVettukathi (btl;Lf;fj;jp), the second accused-Raja @ Sam Selvakumar attacked the
\ndeceased with a rod (fk;gp), the third accused-Rajathambi attacked the deceased
\nwith a rod (fk;gp). The fourth accused-Thangamani was present in the place of
\noccurrence. When the first accused attacked the deceased repeatedly, the cuts
\nfell on the fourth accused. Also, the cuts made by the second and the third
\naccused on the deceased fell on the fourth accused.\n<\/p>\n
\t5. There were cases between the prosecution witnesses and one Chelladurai
\nwith regard to a land dispute even before two years of the date of occurrence.
\nThe second accused-Raja, who is an Advocate, intervened in the matter and made a
\ncompromise between them and in the result, the deceased Ponnappan was directed
\nto pay an amount, but he did not pay the amount. So there was an enmity between
\nthem. On the date of occurrence, there was no light failure, which is evident
\nfrom the evidence of P.W.13-Raj, who was the Switch Operator in the Panchayat
\nOffice of Kallankuzhi.\n<\/p>\n
\t6. After the occurrence, P.W.1 took the deceased in a car driven by
\nP.W.11, to Kottar Government Hospital. The deceased Ponnappan was admitted in
\nthe Kottar Government Hospital, Nagercoil at about 01.15 a.m. on 29.06.1993 and
\nat that time, he was unconscious. P.W.14-Dr.Sornam examined the deceased and
\nfound the following injuries:-\n<\/p>\n
\t“30 cm x 1 cm x depth not probed due to bleeding. Brain comes out on the
\nback. Oblique incised wound from the right eyebrow (nc) the left parietal region
\ndepth from right side to left bleeding present.”\n<\/p>\n
Ex.P8 is the Accident Register issued for the treatment given to the deceased by
\nP.W.14. Thereafter P.W.14 gave intimation about the admission of the deceased to
\nthe hospital, to Police under Ex.P9.\n<\/p>\n
\t7. P.W.25-Chandrasekaran was the First Grade Constable in the Kottar
\nPolice Station. On receipt of Ex.P9 from the hospital, he went to the Kottar
\nGovernment Hospital and recorded the statement from P.W.1 at about 01.50 a.m. on
\n29.06.1993. Thereafter P.W.25 gave information to P.W.26, who was the Head
\nConstable of Thiruvettar Police Station, since the place of occurrence falls
\nwithin the jurisdiction of Thiruvettar Police Station. P.W.26, on receipt of the
\ninformation from P.W.25 and the statement of P.W.1, registered a case in Crime
\nNo.409 of 1993 at about 05.30 hours on 29.06.1993 under Sections 341 and 324 IPC
\nand prepared Ex.P23-printed First Information Report and sent the same to the
\nJudicial Magistrate, Padmanabhapuram and the concerned officials. Thereafter,
\nthe investigation was taken over by P.W.27-Sub-Inspector of Police of
\nThiruvettar Police Station. He took up the case for further investigation at
\nabout 06.45 a.m. on 29.06.1993. P.W.27 thereafter, visited the scene of
\noccurrence at about 07.30 hours on that day in the presence of witnesses and
\nprepared Ex.P2-Observation Mahazar and Ex.P24-Rough Sketch in the presence of
\nP.W.3 and one Balu. Thereafter P.W.27 recovered M.O.2-Blood-stained earth and
\nM.O.3-Sample earth under the cover of Ex.P3-Athakshi.\n<\/p>\n
\t8. In the mean time, the fourth accused-Thangamani, who also sustained
\ninjuries in the attack, was admitted in the Kottar Government Hospital,
\nNagercoil. He was treated by P.W.17-Dr.P.Kandappapillai. P.W.17 found as many as
\n12 injuries on A-4 and issued Ex.P14-Wound Certificate to that effect. The
\ninjuries as stated in Ex.P14 are as under:-\n<\/p>\n
1)An incised wound of 2x1x1cm over the lower 1\/3 of right forearm.\n<\/p>\n
2)An abrasion of 1x1cm over the middle 1\/3 of the right forearm with swelling.\n<\/p>\n
3)Contusion of 3x2cm over the right hand.\n<\/p>\n
4)Abrasion of 1x1cm over the posterior aspect of right arm(nc)\n<\/p>\n
5)An abrasion 1 x . cm over the middle of the lateral aspect.\n<\/p>\n
6)An incised like wound of 8x1x1cm over the middle of scalp (partial region)\n<\/p>\n
7)A lacerated wound of 1x1cm over the lateral aspect of left eyebrow.\n<\/p>\n
8)A contusion of 10x6cm over the lateral aspect of left side of chest.\n<\/p>\n
9)A lacerated wound of 2x1x . cm over the posterior aspect of left elbow.\n<\/p>\n
10)A contusion of 6x2cm over the left lateral aspect of thigh.\n<\/p>\n
11)Fullness of abdomen with tenderness.\n<\/p>\n
12)An incised wound of 5x2x1cm over the (nc) border of left little fingers on
\nits base.\n<\/p>\n
P.W.19-Velappan, who was the constable attached to Kottar Police Station, on
\nreceipt of intimation from the hospital, went to the hospital and recorded the
\nstatement from A-4 under Ex.P19 at about 09.30 hours on 29.06.1993 and forwarded
\nthe intimation and statement to Thiruvettar Police Station. P.W.23 was the Head
\nConstable in the Thiruvettar Police Station at that time. On receipt of the
\nstatement of the fourth accused, he registered the case in Crime No.410 of 1993
\nat about 18.00 hours on 29.06.1993 under Sections 147, 148, 452, 323 and 324 IPC
\nand prepared Ex.P21-Printed F.I.R.\n<\/p>\n
\t9. At about 12.45 hours on 29.06.1993, the deceased Ponnappan died.
\nP.W.15-Dr.Radhakrishnan gave death intimation under Ex.P11. P.W.20, on receipt
\nof the death intimation, forwarded the same to Thiruvettar Police Station at
\nabout 17.30 hours on that day. On receipt of the death intimation of the
\ndeceased, P.W.23, who was the Head Constable in the Thiruvettar Police Station,
\naltered the case in Crime No.409 of 1993 to Section 302 IPC and prepared Ex.P20-
\nExpress Report.\n<\/p>\n
\t10. P.W.27-Sub-Inspector of Police in the Thiruvettar Police Station,
\nconducted inquest over the body of the deceased at 7.30 a.m. on 29.06.1993 and
\nprepared Ex.P25-Inquest Report. Thereafter, he gave a requisition under Ex.P12
\nto conduct post mortem over the body of the deceased through P.W.22-Constable.
\nP.W.16-Dr.Muthuraj, attached to the Kottar Government Hospital, on receipt of
\nEx.P12, conducted post mortem on 30.06.1993 and issued Ex.P13-Post Mortem
\nCertificate.  It is stated in the Post Mortem Certificate as under:-
\n“Appearances found at the Post Mortem:-\n<\/p>\n
A male body lies on back. Moderately nourished sym with the following external
\ninjury:-\n<\/p>\n
1)A small abrasion over the anterior surface of the elbow joint 2cm x 1 cm.\n<\/p>\n
2)A sutured wound running obliquely from the right outer end of the eyebrow
\npartly over the right frontal bone; left parietal bone 30cm in length. Eyelids
\nclosed. Heart 350g C\/s. Chambers empty. Lungs Right  600 gms. Left 500 gms. C\/s
\ncongested Hyoid bone intact. Stomach 150 gms c\/s Stomach empty. Liver 1900G. C\/s
\ncongested. Spleen 150gms C\/s Congested. Kidneys 200G. C\/s congested. Brain 1400G
\nC\/s congested. Skull (torn) of the skin over the scalp blood clot (large) seen
\nover the (torn) parietal bone. A fracture seen from the right orbit passing
\nupwards & backwards across the right frontal bone extending to the left parietal
\nbone 25cm in length.\n<\/p>\n
On dissection of the skull bone the brain matter found cut in the left parietal
\nlobe and right frontal lobe over the upper surface.  Bky;ghfk;
\nBlood clot seen over the brain surface more on the left side 150ml of blood in
\nthe Cranial cavity.”\n<\/p>\n
\t11. Thereafter, P.W.28-Inspector of Police took up further investigation
\nin the matter and examined the witnesses on 08.07.1994. Then, P.W.29-Inspector
\nof Police took up the case for further investigation.  After completing the
\ninvestigation, he filed the charge sheet against the accused on 17.02.1995 under
\nSections 341 and 302 r\/w 34 IPC.\n<\/p>\n
\t12. Before the Trial Court, P.Ws.1 to 29 were examined and Exs.P1 to P26,
\nD1 to D16 and M.Os.1 to 6 were marked. On consideration of the evidence on
\nrecord, the Trial Court convicted the first accused under Section 341 IPC and
\nsentenced to undergo one month S.I.; convicted the first accused under Section
\n302 IPC and sentenced to undergo life imprisonment and to pay a fine of
\nRs.1,000\/- in default to undergo 1 year imprisonment.  The Trial Court acquitted
\nthe accused 2 to 4.\n<\/p>\n
\t13. Challenging the conviction and sentences imposed by the Trial Court,
\nthe present Criminal Appeal has been filed by the appellant \/ first accused.\n<\/p>\n
\t14. The motive as projected and portrayed by the prosecution is that there
\nwas a dispute between the deceased Ponnappan and one Chelladurai. The second
\naccused, who is an Advocate, interfered in the matter and made a compromise and
\nin that compromise,  the deceased Ponnappan was directed to pay an amount, but
\nhe did not pay the amount. So there was an enmity between them.  The difference
\nof opinion was spoken to by P.W.10-the wife of the deceased, and P.W.12.\n<\/p>\n
\t15. Evidence of P.W.10 would show that there was no civil dispute between
\nthe deceased Ponnappan and Chelladurai, but it is the evidence of P.W.12 that
\nthere was a civil case between them. Admittedly, P.Ws.1, 7 and 12 are having
\nnumber of criminal cases. Even P.W.12 was detained under the Goondas Act and he
\nwas having 5 criminal cases in his credit. P.Ws.1, 7 and 12 are accused in
\nvarious cases. Apart from that, they are having number of cases.  According to
\nthe prosecution, the dispute was between the deceased Ponnappan and one
\nChelladurai.  Here it has to be noted that the said Chelladurai was not
\nexamined. If the deceased Ponnappan was not prepared to pay the amount as per
\nthe settlement,     A-1, A-3 and A-4  need not have any grievance over the non-
\npayment of the amount, because the dispute was only between the deceased
\nPonnappan and one Chelladurai. The non-examination of the said Chelladurai is a
\ndefect in the case of the prosecution.\n<\/p>\n
\t16. The second accused gave the complaint against the complainant-party
\nwhich has been registered under Ex.P22 in Crime No.389 of 1993 on the file of
\nthe Thakkalai Police Station.  In this case, there is a doubt about the scene of
\noccurrence as raised by the Senior Counsel. The complainant-party claimed that
\nthey were returning from Mavaravilai to Kallankuzhi Road. The Investigating
\nOfficer said that there was no necessity for them to come to the scene of
\noccurrence at that time. Though the witnesses claimed that they went to secure
\nsome persons for carrying out some work, the non-explanation on the side of the
\nprosecution as to why they have chosen a different route when there was a
\nstraight road to the house, creates a doubt in the case of the prosecution.\n<\/p>\n
\t17. Learned Senior Counsel appearing for the appellant \/ first accused has
\nstated that the theory of securing the persons for work is not correct.
\nAccording to the prosecution, the occurrence took place in the road and the same
\nis depicted in the Sketch as No.1. The fourth accused’s house is situated 30
\nfeet from the scene of occurrence, but the prosecution claimed that blood-
\nstained earth was recovered from the scene of occurrence. P.W.11 is the taxi
\ndriver, engaged in removing the victim from the scene of occurrence to the
\nhospital. His evidence would disclose that the deceased Ponnappan was taken from
\nthe house of the fourth accused. The deceased Ponnappan had no business to enter
\ninto the house of the fourth accused. There was no necessity for P.W.11 to
\ndepose against the prosecution witnesses. His evidence nails the case of the
\nprosecution. It is clear from his evidence that the victim was removed from the
\nhouse of the fourth accused. The occurrence took place in the night. The
\ncomplainant party has no business to enter into the house of the fourth accused.
\nOn behalf of the fourth accused, a complaint was given under Ex.P21 in Crime
\nNo.410 of 1993 on the file of the Thiruvettar Police Station, which would show
\nthat the complainant party entered into the house of the accused and attacked
\nthem. That case was not investigated by the Investigating Officer according to
\nlaw. When such a serious allegation was mentioned, P.W.7 was not enquired by the
\nPolice as regards how A-4 sustained injuries. So, that case was not disposed
\naccording to law. This would go to show that the Investigating Officer did not
\ninvestigate the case properly.  A-4 sustained 12 injuries. According to the
\nprosecution, there are few injuries sustained by A-4, but on the other hand, he
\nsustained 12 injuries in which 1 injury was grievous in nature and 4 ribs were
\nbroken. This all would go to show the force with which the attack was made on A-
\n4, but A-1 and A-3 would not have delivered such a huge blow on A-4, who is
\ntheir own father, when he alleged to have intervened in the attack. So, the
\ntheory of the prosecution that A-4 sustained injuries when he intervened in the
\nattack, falls to the ground.  Moreover, P.W.1 admitted in his evidence that A-4
\nwas aged 75 years at the time of occurrence and he was not in a position to
\nwalk. P.W.1 also admitted that A-4 sustained only 5 to 6 injuries. When   A-4
\nwas not in a condition to walk, the case of the prosecution that A-4 intervened
\nin the attack cannot be true. Therefore, the case of the prosecution that an old
\nman who was in immobile condition was assaulted by his sons, cannot be true.
\nSo, the non-explanation of the injuries on A-4 and the shifting of the scene of
\noccurrence, would clearly demolish the case of the prosecution. The motive
\nattributed is not established in the manner known to law.\n<\/p>\n
\t18. Further, the learned counsel for the appellant \/ first accused raised
\na doubt about the origin of F.I.R. P.W.25 admitted that, once he receives a
\ncomplaint, he would make an endorsement as to what was recorded by him. He also
\nadmitted that in the words endorsed in the F.I.R. relating to Crime No.281 of
\n1993 and that of Ex.P1 are different.  As per the evidence of P.W.25 he would
\nnot have received the complaint from the victim. Moreover, in Ex.P1, the
\nsignature is not that of P.W.25. On the same day, he received another complaint
\nfrom A-4 which has been marked as Ex.D11. He admitted that the signature in
\nEx.D11 is correct. A comparison of Ex.P1 and Ex.D11 would show that the
\nsignatures in both these documents, varies. He admitted the variation of
\nsignatures in both these documents. Both the F.I.Rs have been endorsed by him.
\nFurther, his name is Chandrasekar and he will not write his name as “Chandan” in
\nthe records, but it is shown as “Chandran” in Ex.P1. When P.W.25 was assertive
\nthat he will not sign as “Chandran” in the Government records, the presence of
\nthe name “Chandran” who was said to have recorded the statement, would show that
\nF.I.R. is not true. So, when the F.I.R. itself is suspicious, the entire case of
\nthe prosecution is bound to fail.\n<\/p>\n
\t19. Learned Senior Counsel appearing for the appellant \/ first accused
\nrelied on the judgments of the Hon’ble Supreme Court in State of Punjab v. Mohri
\nRam and Others<\/a> (1994 Supreme Court Cases (Cri) 737) and in Marudanal Augusti v.
\nState of Kerala<\/a> (1980 Supreme Court Cases (Cri) 985) and argued that since the
\nF.I.R. itself is held to be fabricated, the entire prosecution’s case would
\ncollapse.\n<\/p>\n
\t20. It is seen from the evidence on record that the complainant-party are
\nhaving number of cases to their credit.  There are 15 Nos. of F.I.Rs filed on
\nthe side of the defence which would show that the eye-witnesses are involved in
\nthe criminal cases. Further the evidence of P.W.16-the Doctor, who conducted
\npost mortem over the body of the deceased, would shake the case of the
\nprosecution.  He said that the victim sustained one injury in the forehead.  In
\nthis case, the weapon is shown as “Vettukathi”. The doctor opined that the
\ninjuries would have been caused by a bent weapon, but the injuries sustained by
\nthe deceased, would show that there is a doubt about the weapon produced on the
\nside of the prosecution. Further, the doubt raised by the doctor, as stated
\nabove, is not answered on the side of the prosecution.  This also creates
\nsuspicion in the case of the prosecution.\n<\/p>\n
\t21. Learned counsel appearing for the appellant \/ first accused, has
\nsubmitted that the F.I.R. reached the Court belatedly. The F.I.R. was lodged on
\n29.06.1993 at 05.30 a.m., but it reached the Court only at 6.55  p.m. on that
\nday. The distance between the Police Station and the Magistrate’s Court is not
\nfar off, but the F.I.R. reached the Court belatedly. For this, no convincing
\nreason was adduced on the side of the prosecution. Further the complaint given
\nby the accused-party was not investigated properly.\n<\/p>\n
\t22. In the facts and circumstances recited above, we are clearly of the
\nview that the prosecution has not come up with the true story. It has suppressed
\nthe facts.  If that be the case, the whole prosecution story would stand on
\nquicksand. The prosecution has failed to establish its case beyond reasonable
\ndoubt. It is a well-settled principle of law that if two views are possible, the
\none in favour of the accused and the other adversely against it, the view
\nfavouring the accused must be accepted. Therefore, the conviction and sentences
\nimposed on the appellant \/ first accused are liable to be set aside.\n<\/p>\n
\t23. In the result, the conviction and sentences imposed on the appellant \/
\nfirst accused are set aside and the appellant \/ first accused is acquitted of
\nall the charges levelled against him.  Accordingly, the Criminal Appeal is
\nallowed.\n<\/p>\n
KM<\/p>\n
To<\/p>\n
1.The Additional Sessions Judge,
\n  Kanyakumari District at Nagercoil.\n<\/p>\n
2.The Additional Public Prosecutor,
\n  Madurai Bench of Madras High Court,
\n  Madurai.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Rabi vs State Represented By on 30 March, 2010 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 30\/03\/2010 CORAM THE HONOURABLE MR.JUSTICE P.MURGESEN AND THE HONOURABLE MR.JUSTICE T.MATHIVANAN Criminal Appeal (MD)No.513 of 2002 Rabi … Appellant Vs State represented by Inspector of Police, Thiruvattar Police Station, Kanyakumari District. Crime No.409\/93 .. 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