Madras High Court
L.Manoharan vs State Inspector Of Police on 21 September, 2015
Author: V.S.Ravi
Bench: V.S.Ravi
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 21.09.2015
CORAM
THE HONOURABLE MR.JUSTICE S.NAGAMUTHU
AND
THE HONOURABLE MR.JUSTICE V.S.RAVI
CRL.A(MD).No.64 of 2008
, CRL.A(MD).No.290, 317 and 326 of 2008
1.L.Manoharan
2.A.Mokkarasu
3.P.Paramasivam
: Appellants/accused Nos.2 to 4 in Crl.A(MD).No.64 of 2008
M.Uthiraraj
: Appellant/fifth accused in Crl.A(MD).No.290 of 2008
B.Mayee @ Mayandi
: Appellant/first accused in Crl.A(MD).No.317 of 2008
K.Raman
: Appellant/sixth accused in Crl.A(MD).No.326 of 2008
Vs.
State Inspector of Police,
Vadipatti Police Station,
Madurai District,
Crime No.342 of 1994. : Respondent in All Criminal Appeals.
COMMON PRAYER: Appeals are filed under Section 374(2) of the Code of Criminal
Procedure against the Judgment and conviction dated 30.11.2007 made in
S.C.No.579 of 2003, on the file of the learned Additional District and
Sessions Judge [Fast Track Court No.II], Madurai.
!For Appellants
in Crl.A(MD).No.64 of 2008 : Mr.T.A.Ebenezer
For Appellant
in Crl.A(MD).No.290 of 2008 : Mr.M.Chellapandian
For Appellant
in Crl.A(MD).No.317 of 2008 : Mr.Vivekanandan
For Appellant
in Crl.A(MD).No.326 of 2008 : Mr.M.Palaniraja
^For Respondent : Mr.A.Ramar
Additional Public Prosecutor
:COMMON JUDGMENT
[JUDGMENT of the Court was delivered by S.NAGAMUTHU, J] The appellants are the accused Nos.1 to 6 in S.C.No.579 of 2003, on the file of the learned Additional District and Sessions Judge [Fast Track Court No.II], Madurai. The Trial Court framed as many as eight charges as detailed below.
Charge Accused Penal Provisions 1 1 to 6 147 IPC 2 1 to 6 148 IPC 3 1 to 5 324 IPC 4 3 and 5 326 IPC 5 1,2,4 and 6 326 r/w Section 149 IPC 6 3 and 5 307 IPC 7 1,2 and 5 302 IPC 8 3,4 and 6 320 r/w 149 IPC
2. By Judgment dated 30.11.2007, the Trial Court convicted all the six accused, as detailed below:-
Accused No. Convicted under Sections Sentence imposed Fine amount 1 to 6 147 IPC To undergo rigorous imprisonment for two years. Rs.3,000/- in default to undergo simple imprisonment for six months. 1 to 6 148 IPC To undergo rigorous imprisonment for two years. Rs.3,000/- in default to undergo simple imprisonment for six months. 1 to 6 324 r/w 34 two counts To undergo rigorous imprisonment for two years Rs.3,000/- in default to undergo simple imprisonment for six months. 1 to 6 326 r/w 34 r/w 149 To undergo rigorous imprisonment for five years Rs.5,000/- in default to undergo simple imprisonment for one year. 1 to 6 307 r/w 34 r/w 149 IPC To undergo rigorous imprisonment for five years Rs.5,000/- in default to undergo simple imprisonment for one year. 1 to 6 302 r/w 34 r/w 149 [two counts] To imprisonment for life Rs.20,000/- in default to undergo rigorous imprisonment for three years.
The sentences have been ordered to run concurrently. Challenging the said conviction and sentence, the appellants have come up with these Criminal Appeals.
3. The case of the prosecution, in brief, is as follows:-
There were two deceased, in this case, by name, Mr.Baskaran (hereinafter referred to as "D-1") and Mr.Janakiraman (hereinafter referred to as "D-2"). PW-1 and PW-2 are the mother and sister respectively of D-1. They were all residing at Ayyampalayam Vadipatti Village in Madurai District. PW-3 is the younger brother of D-1. On 08.11.1994, the first accused had assured D-1 to pay Rs.5,000/-, which was due from him. PW-3, PW-4, one Mr.Rajasekaran (now no more), D-1 and D-2 were standing near the petti shop of one Mr.Chinnamani Nadar at Andipatti. From there, they went to Chinnappanayakkanpatti Village. In Chinnappanayakkanpatti Village, few persons were found selling illicit arrack. D-1 enquired with them as to where the accused 1 and 2 had gone. They replied that they would come soon. While this conversation was going on, suddenly, these six appellants and two other accused, by name, Raju and Raman came in an unlawful assembly to the said place. All of them were armed with dangerous weapons, such as, aruval and knife. On seeing D-1, they started attacking him. The first accused cut D-1 on his neck and other parts of the body. The second accused cut D-2 on his left side of the neck and the fifth accused cut D-2. PW-3, PW-4 and Mr.Rajasekaran intervened. The first accused cut PW-4 with aruval. He cut Mr.Rajasekaran also with aruval. The second accused cut Mr.Rajasekaran with aruval and caused a simple hurt. The third accused cut PW-3 with knife and the fourth accused cut PW-3 with aruval. The fifth accused cut Mr.Rajasekaran with aruval. The third accused cut Chinnaiyan (PW-4) with pattakathi and caused grievous hurt. The fifth accused also attacked PW-4 with pattakathi and caused grievous hurt. In the same occurrence, the fifth accused also sustained injuries. D-1 and D-2 died on the spot. Then, all the accused fled away from the scene of occurrence. PW-1, who was then at her house heard about the occurrence. She along with PW-2 rushed to the place of occurrence and found D-1 and D-2 dead and PW-3 and PW-4 and Rajasekaran with injuries. The fifth accused was also found lying with injuries. At that time, incidentally, PW-9, a Head Constable attached to the Vadipatti Police Station, came to the place of occurrence. He made arrangement for shifting the injured to the hospital.
3.1. PW-6, Dr.P.Muthulaisamy, examined PW-3 at the Government Rajaji Hospital, Madurai. The injured told him that he was cut by a known person with aruval, at 10.00 a.m, on 08.11.1994. He found the following injuries;
?1)An incised wound neck 20 x .5 x extend into back (nc) exposed.
2)Lacerated injury right forearm 15 x 10 x bone depth.
3)Lacerated injury (Right) wrist 10 x 5 x bone depth.
4)Abrasion midchest 1 x 1 cm.
5)Two incised wound right eyebrow 2 x 2 x 1 cm.
6)Two incised wound right shoulder 2 x 2 x 8 bone deep.? EX-P15 is the wound certificate. PW-6 opined that the injury No.2 is grievous.
3.2. At 01.30 PM, on the same day, PW-6 examined PW-4. PW-4 told him that at 10.00 AM, on the same day, he was attacked by a known person with aruval. He found the following injuries:
"1)An incised wound back of neck 20 x 10 cm x bone deep and back present (nc) neck.
2)An incised wound over the left ear 17 x 2 x skin deep.
3)An incised wound right shoulder 1 x 1 cm.
4)An incised wound left back 10 x .5 x muscles deep.
5)An incised wound left back 15 cm x 10 cm x muscles deep.
6)An incised wound right hand dorsum 10 x .5 cm x bone deep.
7)An incised wound right eyebrow 3 cm x 2 cm x skin deep.
8) An incised wound right SP region 15 x 5 x skin deep.?
EX-P16 is the wound certificate. He opined that the injury Nos.2 and 6 are grievous.
3.3. On the same day, at 01.45 PM, PW-6 examined the fifth accused. He told him that at 10.00 AM, on the same day, he was attacked with aruval at Vadipatti. He found the following injuries:
"1)Lacerated injury left face 30 cm x 10 cm bone deep.
2)Incised wound left forearm 5 x .25 x muscles deep.
3)An incised wound right arm 2 x .5 x .5 cm".
EX-P17 is the wound certificate. He opined that the injury No.1 is grievous.
3.4. PW-1 went to the Vadipatti Police Station and preferred a complaint, at 12.30 PM, on 08.11.1994. PW-10 registered a case in Crime No.342 of 1994 under Sections 302 and 307 IPC. EX-P1 is the complaint and EX-P21 is the First Information Report. Then, he forwarded both the documents to the Court and handed over the Case Diary to the Inspector of Police for investigation.
3.5. PW-13 took up the case for investigation. At 01.30 PM, on 08.11.1994, he visited the place of occurrence and prepared an observation mahazar and a rough sketch in the presence of PW-5 and another witness. Then, he conducted inquest on the body of D-1 between 03.00 PM and 06.00 PM and on the body of D-2 between 06.00 PM and 08.30 PM. Then, he forwarded both the dead bodies for postmortem.
3.6. PW-7, Dr.Vijayal, conducted autopsy on the body of D-2 at 10.30 AM, on 09.11.1994. She found the following injuries;
?External injuries : incised wound all around the neck except narrow pieces of skin of breath about 5 cm over half of front of the neck-cutting through all (torn) intervening muscle, nerves, lendens, blood of vertebral disc.
In front ? just at the level of Thyroid eminence the back ? Intervene C5 & C6 cutting I to V DISC. (torn) side 7 cm below right masloid process. (torn) side 5 cm below left masloid process.
Incised wound 6 cm x 2 cm x bone deep just above back of neck. Incised wound 10 cm x 4 cm x bone deep back of left (nc) (4) incised wound through over the (torn) half of left Pinna.? EX-P18 is the postmortem certificate. She opined that D-2 would appear to have died of shock and hemorrhage due to injuries to the vital organs 24 ? 36 hours prior to autopsy.
3.7. On the same day, at 12.30 PM, she conducted autopsy on the body of D-1. She found the following injuries:
?External injury: An incised wound over the front and left side of neck extended from 1 cm away from midline in front of neck and 8 cm below angle of mondible measuring 10 cm x 5 cm x intra neck deep cutting through intervening muscles, vessels lenden and cutting in food & wind pipe latrally.
2)Linear abrasion across the front of chest and abdomen from right nipple to left waist 35 cm x + cm.
3)Linear abrasion across the back extending from right scapular region to left infra scapular region 30 cm x + cm.?
EX-P19 is the postmortem certificate. She gave opinion that the deceased would appear to have died of shock and hemorrhage due to injury to vital organs, major blood vessels, wind and food pipe 24- 36 hours prior to autopsy.
3.8. In the meanwhile, on the complaint of the fifth accused, in respect of the very same occurrence, PW-13 registered a case in Crime No.343 of 1994, under Section 307 of the Indian Penal Code. He examined the witnesses in connection with the said case also. He recovered bloodstained dress materials of the fifth accused and forwarded the same to the Court. The accused Nos.1, 3 and 4 had surrendered before the Court. PW-13 took Police custody of all the three accused, on 23.11.1994. While in custody, in the presence of PW-5 and another witness, the first accused gave a voluntary confession. Following him, the third accused gave a voluntary confession. Then, the fourth accused gave a voluntary confession. In pursuance of the said disclosure statements, the first accused produced MO-1 ? aruval from the hide out. The third accused produced an aruval and the fourth accused produced yet another aruval. All were recovered under independent mahazar.
3.9. The second accused had also surrendered before the Court. PW-13 took custody of him at 03.30 PM, on 09.12.1994, on the orders of the learned Magistrate. In the presence of PW-5, while in custody, he gave a voluntary confession, in which he disclosed the place, where he had hidden an aruval. In pursuance of the same, he produced MO-2 aruval from the hide out. Then, he forwarded the accused to the Court for judicial remand. On 12.11.1994, he arrested the fifth accused in Ward No.218, at the Government Hospital, where he was undergoing treatment. The fifth accused disclosed the place, where he had hidden an aruval and the same was recovered. Then, the fifth accused was remanded to judicial custody. He forwarded the material objects to the Court and made a request to forward the same for chemical examination. The report revealed that human blood was found on all the material objects, including the aruvals. On completing the investigation, he laid charge sheet against the accused.
3.10. Based on the above materials, the Trial Court framed charges as detailed in the first paragraph of this judgment. The accused denied the same. In order to prove the case, on the side of the prosecution, as many as 14 witnesses were examined and 33 documents and 12 material objects were marked. Out of the said witnesses, PW-1 and PW-2, who are the mother and sister of D-1 are not the eye-witnesses to the occurrence. They came to the place of occurrence, immediately after the occurrence and found the deceased as well as the injured lying on the spot. They have also spoken about the complaint made by PW-1 to the Police. PW-3 and PW-4 are the injured eye- witnesses to the occurrence, who have vividly spoken about the entire occurrence. PW-5 has spoken about the preparation of the observation mahazar and the rough sketch and the recovery of bloodstained earth and sample earth from the place of occurrence. PW-6 has spoken about the treatment given to the injured. PW-7 has spoken about the autopsy conducted on the dead bodies of D-1 and D-2 and her final opinion regarding the cause of death. PW-8 has not stated anything incriminating against the accused. PW-9 is the Head Constable, who had taken the dead bodies to the hospital for postmortem. It was he, who shifted the injured also from the place of occurrence to the hospital. PW-10 the Sub-Inspector of Police has spoken about the registration of the case. PW-11 Dr.Indirani has spoken about the treatment given to Mr.Rajasekaran, one of the injured in the case. PW12 is the Head Clerk of the Magistrate Court. He has stated that he forwarded the material objects to the Forensic Lab for chemical examination on the orders of the learned Judicial Magistrate. PW-13 has spoken about the investigation done by him. PW-14, the Village Administrative Officer of Chinnama Nayakkan Patti Village, has spoken about the village map of Chinnama Nayakkan Patti Village.
3.11. When the Trial Court examined the accused under Section 313 of the Code of Criminal Procedure in respect of the incriminating evidences available against them, they denied the same as false. However, they did not choose to examine any witness nor to exhibit any document. Having considered all the above materials, the Trial Court convicted the accused, as detailed in the first paragraph of this Judgment and punished them accordingly. That is how, the appellants are now before this Court with these Criminal Appeals.
4. Since there was no representation on behalf of the appellants, this Court appointed Mr.T.A.Ebenezer, the learned counsel to appear for the appellants and to argue the case in Crl.A(MD).No.64 of 2008, Mr.M.Chellapandian, the learned counsel for the appellant in Crl.A(MD).No.290 of 2008, Mr.Vivekanandan, the learned counsel for the appellant in Crl.A(MD).No.317 of 2008 and Mr.M.Palaniraja, the learned counsel for the appellant in Crl.A(MD).No.326 of 2008.
5. We have heard the learned counsel appearing for the appellants, the learned Additional Public Prosecutor appearing for the respondent and also perused the records carefully.
6. Undoubtedly, this is a very sensational case, where two people had been done to death in a gruesome manner and three persons sustained grievous injuries. According to the case of the prosecution, these appellants, along with two other accused, by name, Raju and Raman, had caused injuries on the deceased as well as on the injured witnesses. PW-1 and PW-2 are not the eye- witnesses to the occurrence. PW-3 and PW-4 are the injured eye-witnesses. Since there is no dispute that PW-3 and PW-4 had also sustained injuries, their presence at the time of occurrence cannot be doubted. But, the question is whether the conviction of these appellants could be sustained believing these two witnesses. Admittedly, they are interested witnesses and also closely related to the deceased. On that score, their evidences cannot be outright rejected. Prudence requires that their evidences require very close scrutiny.
7. According to PW-1 and PW-2, immediately, after the occurrence, on hearing about the occurrence, they came to the place of occurrence. They found D-1 and D-2 already dead and PW-3 and PW-4 and one Mr.Rajasekaran lying with injuries. The fifth accused was also found lying. PW-9, who came there incidentally, took all the injured to the hospital. When they were taken to the hospital, they were all conscious. PW-6 - Dr.P.Muthulaisamy examined PW-3 and PW-4. At that time, they told the doctor that they were attacked by a known person with an aruval. Yet another injured, by name, Mr.Rajasekaran told the doctor that he was attacked by an unknown person with knife and aruval. It is, thus, crystal clear that before the complaint was made by PW-1 to the police, PW-1 and PW-2 had met PW-3, PW-4 and another injured witness and they were all conscious. Had it been true that these appellants had attacked the deceased and the injured eye-witnesses, certainly, the same would have been passed on by PW-3, PW-4 and Mr.Rajasekaran to PW-1 and PW-2. The complaint, in this case, was made at 12.30 PM. But, in the First Information Report, the name of none of these accused is found. In the complaint, PW-1 has stated that some unknown person had cut the deceased, at 10.00 AM. Thus, until the complaint was made, at 12.30 PM, on 03.11.1994, the assailants were not known either to PW-1 or to PW-2 or to the injured eye- witnesses. These injured eye-witnesses had mentioned the names of these accused only after the inquest was over.
8. The very fact that they had told the doctor at the earliest point of time a different version, the very fact that these injured eye-witnesses were conscious and they had conversation with PW-1 and still, they did not mention about the identity of the assailants to PW-1 and the very fact that till 12.30 PM, the assailants were not known would all go to show that PW-3 and PW-4 have subsequently developed a case against these accused. It is not explained to the Court as to why they did not disclose at the earliest point of time about the involvement of these accused. This creates initial doubt in the case of the prosecution. There is no other corroboration to the evidences of these two injured eye-witnesses. Therefore, in our considered view, it is too difficult to believe the evidences of PW-3 and PW-4 alone and convict these accused, though they happened to be injured eye-witnesses.
9. There is yet another reason to reject the case of the prosecution. As we have already pointed out, the fifth accused sustained injuries in the very same occurrence. The first injury on the head of the fifth accused was of such long size, measuring 30 Cms. There was a corresponding fracture. According to the doctor, the injuries were grievous in nature. The only explanation offered by the prosecution regarding the said injuries is that in the occurrence, when one of the injured tried to snatch the aruval from the hands of the fifth accused, he sustained injuries. Going by the nature of the injury, size of the injury and the location of the injury, it is too difficult to believe the said explanation offered by the prosecution. In our considered view, the prosecution has failed to explain the injuries sustained by the fifth accused. In this regard, we may refer to the Judgment of the Hon'ble Supreme Court in Lakshmi Singh and others, Vs. State of Bihar, reported in 1976 SCC [Crl] 671, wherein, the Hon'ble Supreme Court, in an identical situation, has held that it is the bounden duty of the prosecution to explain the injuries sustained by the accused party also. It is useful to extract the relevant portion of the said Judgment, which reads as follows:-
"Where the prosecution fails to explain the injuries on the accused, two results follow;
(i) that the evidence of the prosecution witnesses is untrue; and (2) that the injuries probabilise the plea taken by the appellants.
It was further observed that;
"In a murder case, the non ? explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of alteration is a very important circumstance from which the Court can draw the following inferences;
(i). that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version.
(2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore, their evidence is unreliable;
(3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case."
10. Applying the said principles to the facts of the present case, we are of the considered view that the prosecution has suppressed the material part of the occurrence and the prosecution has not come forward with the true version of the occurrence.
11. Above all, on the complaint made by the fifth accused, a case was registered in Crime No.343 of 1994 under Section 307 of the Indian Penal Code. Though PW-13 has stated that he investigated the said case also, the records pertaining to the said case have not been exhibited at all on the side of the prosecution. Though he has stated that he referred the said case as "mistake of fact", the final report in the said case and the materials collected during investigation have not been placed before the Court. Thus, this Court is unable to find whether the case in Crime No.343 of 1994 projects the true version of the occurrence or the case in Crime No.342 of 1994 projects the true version of the occurrence. Since it is the duty of the prosecution to come forward with the true version of the occurrence, including the genesis of the occurrence and since in the instant case, the prosecution has failed in its duty on this aspeect, we have no other option, except to hold that the prosecution has not come forward with the true version of the occurrence. Though two precious lives were snatched away in a gruesome manner and three persons had sustained injuries, since there are lot of flaws in the case of the prosecution, as pointed out hereinabove and since the prosecution has not come forward with the true version of the occurrence, we find no option, but to interfere with the conviction and sentence imposed on the accused by the Trial Court. We are impelled to hold that the prosecution has failed to prove the case beyond reasonable doubts.
12. In the result, these Criminal Appeals are allowed; the conviction and sentence imposed on the appellants, by Judgment dated 30.11.2007, made in S.C.No.579 of 2003, on the file of the learned Additional District and Sessions Judge [Fast Track Court No.II], Madurai, are set aside and the appellants are acquitted. Fine amount, if any, paid by the appellants shall be refunded to them. Bail bond executed by the appellants and the sureties shall stand terminated. The Legal Services Authority is directed to pay fees to the learned counsel, who have been appointed as Legal Aid Counsel to argue the case on behalf of the appellants.
To
1.The Inspector of Police, Vadipatti Police Station, Madurai District.
2.The Additional District and Sessions Judge [Fast Track Court No.II], Madurai.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
.