{"id":52811,"date":"2003-06-17T00:00:00","date_gmt":"2003-06-16T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/raja-vs-state-of-tamil-nadu-on-17-june-2003"},"modified":"2014-03-05T23:25:19","modified_gmt":"2014-03-05T17:55:19","slug":"raja-vs-state-of-tamil-nadu-on-17-june-2003","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/raja-vs-state-of-tamil-nadu-on-17-june-2003","title":{"rendered":"Raja vs State Of Tamil Nadu on 17 June, 2003"},"content":{"rendered":"
Madras High Court<\/div>\n
Raja vs State Of Tamil Nadu on 17 June, 2003<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS\n\nDated: 17\/06\/2003\n\nCoram\n\nThe Honourable Mr. Justice T.V. MASILAMANI\n\nC.A. No.645 of 1996\n\n\nRaja                                           .. Appellant\n\n-Vss-\n\nState of Tamil Nadu,\nrep. by the Inspector\nof Police,\nKaveripattinam,\nDharmapuri District.                            .. Respondent\n\n\n        Criminal Appeal against the judgment made in S.C.  No.23 of 1992 dated\n31.7.1996 on the file of the Principal Sessions Judge, Dharmapuri District  at\nKrishnagiri.\n\n!For Appellant :  Mr.C.Prakasam\n\n^For Respondent :  Mr.A.N.  Thambi Durai,\n                Govt.Advocate (Crl.Side).\n\n\n:JUDGMENT\n<\/pre>\n
        Appellant  is  the  accused  who  was tried before the Sessions Judge,
\nDharmapuri District at Krishnagiri for an offence under Section 302 I.    P.C.
\nThe  charge  against  him  is  that on 19.8.1991 at about 8.30 P.M., he due to
\nprevious enmity had hit the deceased Kariyan @ Arunachalam with a brick on his
\nforehead nearby the public drinking water tap in the village  Mahendramangalam
\nas  a  result  of  wh ich the said Arunachalam died on 27.8.1991 at about 8.25
\nP.M.  in Epidemic Disease Hospital, Bangalore.  The learned trial  Judge  held
\non the basis of the evidence on record and on the arguments advanced on either
\nside that  the  accused is guilty of the offence under Section 335 I.P.C.  and
\nconvicted and sentenced him to undergo rigourous imprisonment  for  two  years
\nand  also  to  pay  a  fine  of  Rs.1,000\/-,  in  default  to  undergo  simple
\nimprisonment for two months.  The accused challenges the above conviction  and
\nsentence passed against him.\n<\/p>\n
        2.  The case of the prosecution may be stated briefly as follows:-
\n        The  deceased  Kariyan @ Arunachalam, husband of P.W.6 Tulasiammal and
\nbrother of P.W.1 Chinnapaiyan, had reprimanded the  accused  on  the  date  of
\noccurrence  for  his  high handed act of abusing the witnesses Rukku, Kamalam,
\nShanthi, Kunji and others and breaking the pots kept by them near  the  public
\nwater  tap  and  therefore  an  altercation ensued between the accused and the
\ndeceased.  While so, the accused had hit the deceased with brick M.O.1 on  his
\nleft eye-brow and therefore, he had fallen down.  Arunachalam was taken to the
\nGovernment  Hospital,  Palacode  where P.W.10 Dr.Murugesan had admitted him as
\ninpatient on 19.8 .1991 at 9.30 P.M.  and on his  examination  he  found  that
\nArunachalam sustained  contusion  on  his  left  fore  head.    Ex.P-7  is the
\nintimation sent by P.W.10 to Palacode Police Station  and  thereafter,  P.W.9,
\nHead  Constable,  Arumugam  went  to the hospital and examined Arunachalam and
\nobtained Ex.P-8 complaint from the  injured.    Further  P.W.10  referred  the
\ninjured  Arunachalam  to  Government  Hospital,  Dhamapuri  for  treatment and
\nP.W.11, Dr.Ramakrishnan  treated  him  on  20.8.1991  and  discharged  him  on
\n21.8.1991.   P.W.1  Chinnapaiyan, brother of Arunachalam, had taken the latter
\nto Bangalore for treatment in St.John’s Hospital  where  he  was  admitted  as
\ninpatient on  27.8.1991  at 2.30 P.M.  P.W.12 Dr.Naina Rani has given evidence
\nabout the death of Arunachalam  in  the  hospital  at  about  8.25  P.M.    on
\n27.8.1991 on  account of tetanus (vide) Ex.P-12 death certificate.  Thereupon,
\nP.W.1 lodged another  complaint  Ex.P-1  at  Marandahalli  Police  Station  on
\n28.8.1991  at  11.00  A.M  and  P.W.8,  Ramu, Sub Inspector, received the said
\ncomplaint and registered a case under Section 302 I.P.C.  in  Crime  No.621\/91
\nand thereafter sent the documents to the higher police officials as well as to
\nthe concerned   Court.      P.W.13   Arumugam  Inspector  of  police  took  up
\ninvestigation of the case, went to the scene of occurrence at 4.00 P.M.  on 28
\n.8.1991 and prepared Ex.P-5 observation mahazar and Ex.P-14 rough sketch.   He
\nconducted inquest  over  the body of the deceased between 4.4 5 P.M.  and 7.00
\nP.M.  and Ex.P-15 is the inquest report.  Thereafter, he  sent  the  body  for
\npost mortem.   P.W.4 Dr.Vasantha Kokilam conducted autopsy on the dead body of
\nArunachalam and issued the certificate Ex.P-4 with the opinion that  he  would
\nappear  to  have died due to shock and haemorrhage due to head injury about 32
\nto 40 hours prior to autopsy.    The  relevant  injuries  as  per  Ex.P-4  are
\nextracted hereunder:-\n<\/p>\n
External  injuries:-  A  cut  injury  about  4  cm  x 1-1\/2 cm bone deep wound
\nextending from above the lateral 3rd of the left Eyebrow to the left  temporal
\nregion.   There  is a recent scar extending from the lower end of the wound to
\nthe left cheek.\n<\/p>\n
Internal Examinations:\n<\/p>\n
        Hyoid bone intact.  Thorax:- ribs no fracture.  Head:- Weight  normal,
\ncut  section  all  the  chambers  filled  with  clotted blood about 400 grams.
\nLungs:- weight normal,  cut  section  congested.    Abdomen:-  Stomach  weight
\nnormal,  cut  section  congested,  contains  200  ml  of black coloured fluid.
\nLiver:- weight normal cut section  congested.    Spleen:-  Weight  normal  cut
\nsection congested.  Intestine:- Weight normal, cut section congested.  Urinary
\nbladder contains  about  100  ml  of urine.  Brain:- Weight normal cut section
\npale.  Duramater, arachnoid matter and piamater-intact.  Skull bones:    There
\nis  a  depressed partial fracture about 1-1\/2 inches x 1\/2 inches present over
\nthe frontal bone 1-1\/2″ below the left frontal eminence upto the bone  marrow.
\nInner table of the bone intact.\n<\/p>\n
P.W.13,  Inspector  of  Police  arrested the accused on 30.8.1991 at 9.30 A.M.
\nand sent him to judicial custody.  On being identified by  P.Ws.1  and  2,  he
\nrecovered M.O.1  brick  under  Ex.P-6,  mahazar.    Thereafter,  his successor
\nP.W.14, Ramasamy, Inspector of Police, took up further investigation and after
\ncompletion of the same, the final report under Section 302 I.P.C.  was  lodged
\nagainst the accused on 13.9.1991 in the Judicial Magistrate Court, Palacode<\/p>\n
        3.   The accused had also been examined by P.W.10 Dr.Murugesan on 20.8
\n.1991 at 6.45 A.M.  for injuries found on him (vide) Ex.P.10 accident register
\ncopy and thereafter, P.W.9 Head Constable Adhimoolam had examined the  accused
\nin the  hospital at 10.30 A.M.  on the same day after receiving the intimation
\nfrom P.W.10.\n<\/p>\n
        4.   While  the  accused  was  questioned  with   reference   to   the
\nincriminating  circumstance  in  the evidence adduced by the prosecution under
\nSection 313 Cr.P.C.  he admitted that he had gone to the scene at the time  as
\nalleged  by  the  prosecution,  but  however,  he  has  denied the occurrence.
\nAccording to him, there was a wordy quarrel  between  P.W.1  Chinnapaiyan  and
\nothers  and  he  was  not  present  during  the  occurrence  as alleged by the
\nprosecution.  He has stated further that since someone had thrown a  brick  at
\nhim, he sustained injury on his left eyebrow.\n<\/p>\n
        5.   In  the  above circumstances, it has become necessary to consider
\nwhether the conviction and sentence passed by the trial  Court  under  Section
\n335 I.P.C.  as against the accused has to be set aside as prayed for.\n<\/p>\n
        6.  The homicide in this case has been proved by the evidence of P.W.4
\nDr.Vasantha Kokilam  and  Ex.P-4 post-mortem certificate.  The cause of death,
\naccording to her, is the injury found on the left eye-brow measuring  about  4
\ncm  x  1-1\/2  cm  bone  deep  w  corresponds  to  the internal injury, namely,
\ndepressed partial fracture about 1-1\/2″ x 1\/2″ present over the  frontal  bone
\n1-1\/2″ below  the  left  frontal  eminence  upto  the  bone marrow.  The first
\ncontention of the learned counsel for the accused is that the medical evidence
\nadduced by the prosecution is not only contradictory but also leads to a grave
\nsuspicion in favour of the accused.  He has pointed out the evidence of P.W.10
\nDr.  Murugesan who treated the deceased at the  earliest  opportunity  in  the
\nGovernment  Hospital,  Palacode  on 19.8.1991 immediately after the occurrence
\nand he has stated categorically that only a lacerated  injury  over  the  left
\nside of  forehead  2  cm  x  1\/2  cm  bone  deep  was  found  sutured.  P.W.11
\nDr.Ramakrishnan has  given  a  categorical  opinion  that  the  X-ray  reports
\nrelating  to Arunachalam did not reveal any injury to the skull bone and it is
\nin his evidence that on 19.8.1991 Arunachalam was  admitted  as  inpatient  at
\n11.45 P.M.   in  the M.S.  Ward for treatment and he treated him on 20.8.1991.
\nEx.P-11 is the case sheet and M.O.6 (series) X-rays with  reports  corroborate
\nthe  contention of P.W.11 and therefore, it is urged and in my opinion rightly
\nby the learned counsel for the accused that the depressed skull fracture found
\nby P.W.4, Dr.Vasantha Kokilam at the time of post-mortem  could  not  be  ante
\nmortem in nature.  On a careful perusal of the above evidence and upon hearing
\nthe  argument  of  the  learned counsel for the accused, I am inclined to hold
\nthat a grave doubt in the case of the  prosecution  arises  in  this  case  in
\nfavour of the accused.\n<\/p>\n
        7.   Nextly, the learned counsel for the accused has argued vehemently
\nthat the earliest complaint received from the deceased himself was  suppressed
\nby  the  police  and  only  after receipt of death intimation, the prosecuting
\nagency obtained the complaint Ex.P-1 from P.W.1 on 28.8.1991 and prepared  the
\nF.I.R.,  Ex.P-2  so  as to avoid the delay and therefore, on this ground also,
\nthe accused is entitled to the benefit of doubt.  It is  in  the  evidence  of
\nP.W.10,  Dr.Murugesan  that on 19.8.1991, he sent the intimation Ex.P-7 to the
\npolice with reference to the treatment of Arunachalam for the injuries said to
\nhave been caused on 19.8.1991 at about 8.30 P.M.  by assault with brick by one
\nknown person and P.W.9, Adhimoolam, Head  Constable  received  the  intimation
\nEx.P-7  and  proceeded  to  the  Government Hospital Palacode and obtained the
\nstatement Ex.P-8 from the deceased Arunachalam at  10.15  P.M.    and  he  has
\nstated  that  he forwarded both Exs.P-7 and P-8 to Marandahalli Police Station
\nhaving jurisdiction over the place of occurrence for further action.   As  has
\nbeen  rightly  argued  by the learned counsel for the accused, the prosecution
\nhas not explained anything about the  fate  of  the  complaint  given  by  the
\ndeceased himself  under  Ex.P-8.  It is admitted by P.W.13, Arumugam, the then
\nInspector incharge  of  Marandahalli  Police  Station,  that  he  was  holding
\nadditional  charge  of  Palacode  Circle  Inspector  on 19.8.1991 while he was
\nserving as Inspector of Police Kaveripattinam and he has not explained  as  to
\nwhether  the  law  was set in motion on receipt of Exs.P-7 and P-8 by Palacode
\nPolice Inspector and in this connection, it is relevant to note that  only  on
\n28.8.1991  after  receiving  the  complaint  Ex.P-1  from  P.W.1  a  case  was
\nregistered in Crime No.620\/91 of Marandahalli Police Station  and  thereafter,
\nEx.P-2 express  F.I.R.    was prepared and sent to the Court along with Ex.P-1
\nand copies to the higher police officials.    Though  the  learned  Government
\nAdvocate  (Criminal  side)  has made a feeble attempt to show that the initial
\ncomplaint given by the deceased under Section Ex.P-8 was given a number  under
\nP.I.R.   103\/91  dated  20.8.1991  such an entry cannot cure the lacuna in the
\nvery basis of the case of the  prosecution.    In  view  of  the  decision  in
\nT.T.ANTONY v.    STATE  OF  KERALA<\/a>  (2001  AIR  SCW  2571), it is well settled
\nproposition of law that as regards cognizable offence, there can be no  second
\nF.I.R.    in  respect  of  the  same  cognizable  offence,  same  incident  or
\noccurrence.  But in  this  case,  such  second  F.I.R.    had  not  only  been
\nregistered, but had also set the law in motion.  In this context, it is useful
\nto refer  the decision in THULIA KALI v.  STATE OF TAMIL NADU<\/a> (1974 L.R.(Crl.)
\n(J.S.) 30) which laid down the proposition as follows:-\n<\/p>\n
        “The importance of the above report can hardly be over-estimated  from
\nthe standpoint of the accused.  The object of insisting upon prompt lodging of
\nthe  report  to the police in respect of commission of an offence is to obtain
\nearly  information  regarding  the  circumstances  in  which  the  crime   was
\ncommitted,  the  names  of  the actual culprits and the part played by them as
\nwell as the names of eye-witnesses present at the scene of occurrence.   Delay
\nin  lodging  the first information report quite often results in embellishment
\nwhich is a creature of afterthought.  On account of delay, the report not only
\ngets bereft  of  the  advantage  of  spontaneity,  danger  creeps  in  of  the
\nintroduction  of coloured version, exaggerated account or concocted story as a
\nresult of deliberation and consultation.  It is, therefore, essential that the
\ndelay in the lodging of the first information report should be  satisfactorily
\nexplained.”\n<\/p>\n
Hence,  the contention of the learned counsel for the accused that inaction on
\nthe part  of  the  investigating  agency  immediately  after  receipt  of  the
\ncomplaint  from  the  deceased  himself  is fatal to the prosecution has to be
\naccepted, especially, in view of ratio laid down in  the  said  decisions  and
\ntherefore,  the  filing  of  second  complaint  and  F.I.R.,  Exs.P-1  and P-2
\nrespectively, after a considerable delay in this case cannot cure  the  defect
\nin the prosecution case.  On this ground also, I find that the prosecution has
\nmiserably  failed  to explain satisfactorily the delay in prosecuting the case
\nand therefore, the accused is entitled to the benefit of doubt.\n<\/p>\n
        8.  The learned counsel for the  accused  has  urged  further  in  his
\nargument  that  the  recovery  of  M.O.1  alleged  to  have  been  made by the
\nprosecution cannot be true for the simple reason  that  as  per  the  evidence
\nadduced  by  the prosecution in this case, the place of occurrence was cleaned
\non the same day immediately after the police visited the spot  and  since  the
\noccurrence  is  said to have taken place on 19.8.1991 inasmuch as the evidence
\nof the prosecution is that on 28.8.2001 at about 7.15 P.M.   M.O.1  brick  was
\nrecovered  from  the place of occurrence, the allegation of the prosecution in
\nthis respect becomes unbelievable.  It is in this circumstance that the  trial
\nCourt  has  rejected  the  contention  of the prosecution for conviction under
\nSection 302 I.P.C.  and held that the accused was liable to be  punished  only
\nfor a  lesser  offence  under  Section  335  I.P.C.   As rightly argued by the
\nlearned counsel for the accused, if the recovery of the very offensive weapon,
\nnamely, M.O.1 has not been proved beyond doubt, I am of the opinion  that  the
\naccused  is  entitled  for  an  acquittal even of the charge under Section 335
\nI.P.C.\n<\/p>\n
        9.  Nextly, the learned counsel for the accused  has  adverted  to  my
\nattention to the evidence of P.W.1, P.W.2 and P.W.6 who are closely related to
\nthe  deceased  and  argued  that  none  of  the independence witnesses who are
\nalleged to have been present in the place of occurrence has been  examined  by
\nthe  prosecution  and  therefore,  the conviction rendered on the basis of the
\ninterested testimony is not sustainable.  Similarly, he  has  urged  that  the
\nprivate Doctor who treated the deceased for about 3 days immediately after his
\ndischarge from the General Hospital, namely, Dr.Siva Shanmugam of Palacode was
\nnot examined by the prosecution and therefore, the evidence of P.W.12 Dr.Naina
\nRani  that  Arunachalam  died of Tetanus would have been the probable cause of
\ndeath as a result of the alleged assault by the accused with the brick  M.O.1.
\nHaving  regard  to  the totality of the evidence adduced by the prosecution in
\nthis  case,  I  am  of  the  opinion  that  such  contention   also   deserves
\nconsideration.   On  a  careful  perusal  of the evidence on record and in the
\nlight of the arguments advanced on either side, I find that it is difficult to
\nuphold the conviction of the accused  even  under  Section  335  I.P.C.    and
\ntherefore, I find that the appellant\/accused is entitled for acquittal.\n<\/p>\n
        10.  The appeal is allowed accordingly and the conviction and sentence
\npassed  by  the  trial court are set aside and the accused is acquitted of the
\ncharge under Section 335 I.P.C.  Fine amount if paid by him shall be refunded.
\nBail bond if any shall stand cancelled.\n<\/p>\n
Index:  Yes
\nWebsite:  Yes
\ndpp<\/p>\n
To\n<\/p>\n
1.  The Principal Sessions Judge, Dharmapuri District,
\nat Krishnagiri.\n<\/p>\n
2.  The Inspector of Police, Kaveripattinam.\n<\/p>\n
3.  The Public Prosecutor, High Court, Madras.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Raja vs State Of Tamil Nadu on 17 June, 2003 IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 17\/06\/2003 Coram The Honourable Mr. Justice T.V. MASILAMANI C.A. No.645 of 1996 Raja .. Appellant -Vss- State of Tamil Nadu, rep. by the Inspector of Police, Kaveripattinam, Dharmapuri District. .. Respondent Criminal Appeal […]<\/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-52811","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nRaja vs State Of Tamil Nadu on 17 June, 2003 - 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\/raja-vs-state-of-tamil-nadu-on-17-june-2003\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Raja vs State Of Tamil Nadu on 17 June, 2003 - 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