Madras High Court
Anthony @ Appukannan vs The State By on 23 February, 2023
Author: N. Anand Venkatesh
Bench: N. Anand Venkatesh
Criminal Appeal No.186 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 23.02.2023
CORAM
THE HONOURABLE MR. JUSTICE N. ANAND VENKATESH
Criminal Appeal No.186 of 2016
Anthony @ Appukannan
S/o.Albonnes ... Appellant/Accused 3
Vs.
The State by
Inspector of Police,
Sankarapuram Police Station,
Villupuram District.
Crime No.651 of 2009 ...Respondent/Complainant
Prayer : Criminal Appeal filed u/s.374 of the Code of Criminal Procedure
against the judgment dated 08.09.2015 passed in S.C.No.1/2012 on the file
of III Additional District and Sessions Judge, Kallakurichi.
For Appellant : Mr.S.Suresh
For Respondent : Mr.L.Baskaran
Government Advocate [Crl.side]
*****
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https://www.mhc.tn.gov.in/judis
Criminal Appeal No.186 of 2016
JUDGMENT
This criminal appeal has been filed against the judgment and order passed by the III Additional District and Sessions Judge, Kallakurichi, in S.C.No.1 of 2012, dated 08.09.2015, convicting the appellant for offence u/s.304(i) IPC and sentencing him to undergo five years rigorous imprisonment and to pay fine of Rs.2,000/-, in default, to undergo six months rigorous imprisonment.
2. The brief facts of the case are as under:
2.1. PWs.1, 3 and 4 are the sisters of the deceased Sundaram @ Chinnappan. PW-2 is the wife of the deceased. A4 is the junior paternal uncle of the deceased. A3 and A6 are children of A4 and A5. A7 is the wife of A3 and A1 and A2 are the nephews of A4.
2.2. There was a previous enmity between the father of the deceased and A4 with regard to presenting gold at the time of marriage of A7. On 02.11.2009, at about 10.30 a.m., PWs.1 to 4, deceased and their family 2/18 https://www.mhc.tn.gov.in/judis Criminal Appeal No.186 of 2016 members went to attend a function in a cemetery. At that point of time, there was a scuffle and the appellant (A3) is said to have stabbed the deceased with MO-1 on his head. A4 is said to have beaten the deceased with a stick (MO-2). PW-2 was attacked by A1, A2 and A4 with a stick (MO-2). That apart, A4 also beat PW-1 on the head and hand. Apart from this, all the accused persons are said to have attacked PWs.2 and 4 and A7 also attacked PW-3 on her head and neck. Thereafter, the accused persons are said to have ran away from the scene of occurrence.
2.3. The injured persons were taken to a private hospital at Viraiyur by PW-6. First aid was given to them and they were thereafter taken to the Government hospital, Kallakurichi. PW-21, Doctor, attached to Kallakurichi Government hospital treated PWs.1, 2, 3 and 4 and the deceased. The wound certificate that was issued by PW-21 in this regard has been marked as Exs.P13, P14, P15, P16 and P17 respectively. 3/18
https://www.mhc.tn.gov.in/judis Criminal Appeal No.186 of 2016 2.4. The information was sent from the other hospital on 02.11.2009 at about 12.45 p.m. to the Sangarapuram Police Station. PW-20 went to the hospital and he received the complaint/report from PW-1 (Ex.P1). A First Information Report came to be registered in Crime No.651 of 2019 for offences u/s.147, 148, 341, 323, 324 and 307 IPC. This First Information Report was registered at about 02.00 p.m. on 02.11.2009. The printed copy of the First Information Report ultimately reached the Court on 02.11.2009 at about 08.00 p.m. 2.5. The investigation was taken over by PW-22 and he went to the scene of occurrence and prepared the observation mahazar marked as Ex.P18 and rough sketch marked as Ex.P19. Thereafter, he also recorded the statement of the witnesses u/s.161(3) Cr.P.C. PW-22 also arrested A1 and A2 on the same day and they were remanded to judicial custody.
2.6. PW-22 went to the Government hospital on 03.11.2009 and recorded the statements of the eye witnesses/injured witnesses, who were 4/18 https://www.mhc.tn.gov.in/judis Criminal Appeal No.186 of 2016 taking treatment. During the course of investigation, the other accused persons were arrested. On 13.11.2009, PW-22 received information from the Salem Government hospital to the effect that the deceased Sundaram succumbed to his injuries. Accordingly, an alteration report was prepared by PW-22 and the offence was altered by adding Section 302 IPC and the alteration report was marked as Ex.P20.
2.7. PW-22 thereafter conducted autopsy of the deceased in the Government hospital in the presence of Panchyatdars and the autopsy report has been marked as Ex.P21.
2.8. PW-22 collected various reports from the Doctor and from the other specialists and ultimately, completed the investigation and filed a final report before the Judicial Magistrate, Sankarapuram. The learned Magistrate issued copies to the accused persons u/s.207 Cr.P.C. and the case was committed and made over to the file of III Additional District and Sessions Court, Kallakurichi.
5/18 https://www.mhc.tn.gov.in/judis Criminal Appeal No.186 of 2016 2.9. The trial Court framed the following charges against the accused persons:
Sl.No. Rank of the accused Offence under Section
1. A1, A2, A4 to A7 147 IPC
2. A3 148 IPC
3. A1 to A7 341 IPC
4. A1 to A7 323 IPC
5. A1, A2 & A4 325 IPC
6. A3 302 IPC
7. A1, A2, A4 to A7 302 r/w 149 IPC 2.10. The prosecution examined PWs.1 to 22 and marked Exs.P1 to P22 and identified and marked MO-1 and MO-2. The incriminating materials that were gathered in the course of trial were put to the accused persons when they were questioned u/s.313(1)(b) Cr.P.C. They denied the same as false.
2.11. The trial Court, considering the facts and circumstances of the case and on appreciation of the oral and documentary evidence, came to a conclusion that the prosecution has not made out a case beyond reasonable 6/18 https://www.mhc.tn.gov.in/judis Criminal Appeal No.186 of 2016 doubt as against A1, A2, A4 to A7 and these accused persons were acquitted from all charges. Insofar as the appellant (A3) is concerned, he was convicted for offence u/s.304(i) IPC and was sentenced to undergo five years rigorous imprisonment and to pay fine of Rs.2,000/-, in default, to undergo six months rigorous imprisonment. Aggrieved by the same, the present Criminal Appeal has been filed before this Court.
3. Heard Mr.S.Suresh, learned counsel appearing for appellant and Mr.L.Baskaran, learned Government Advocate [Crl.side], appearing for the respondent/State.
4. The main grounds that were urged by learned counsel for appellant is that the prosecution had suppressed the very genesis/origin of the case and hence, the appellant is entitled for acquittal on this ground alone. It was further submitted that A4 had sustained injuries and this was admitted by the Investigation Officer and a First Information Report was also registered and there was no investigation on this First Information Report and hence, 7/18 https://www.mhc.tn.gov.in/judis Criminal Appeal No.186 of 2016 the respondent police did not find out as to who is the real aggressor in this case and the case was not investigated in the manner in which a case in counter case should be investigated. It was further submitted that the incident had taken place at 10.30 a.m., whereas the complaint was given only at about 12.45 p.m. and the complaint reached the Court only at 08.00 p.m. There is absolutely no explanation for this delay. Therefore, it was submitted that there was deliberation and the accused persons were fixed and thereafter, the complaint was prepared. It was contended that the deceased Sundaram died nearly after 11 days from the date of incident and there was absolutely no material available to show where the deceased Sundaram was treated and what treatment was given and whether any statement was recorded from the deceased when he was alive.
5. Learned counsel for appellant also brought to the notice of this Court the contradictions in the evidence of eye witnesses PWs.1 to 4 and submitted that the trial Court had taken into consideration these contradictions and had acquitted all other accused persons and the same benefit of doubt ought to have been extended to the appellant also. 8/18
https://www.mhc.tn.gov.in/judis Criminal Appeal No.186 of 2016
6. Per contra, learned Government Advocate [Crl.side] appearing on behalf of the respondent State submitted that the eye witnesses account clearly brings out the fact that the appellant had used MO-1 to attack the deceased on his head and ultimately, the cause of death, as spoken to by PW-17, shows that the deceased had died only due to the head injuries. For this purpose, learned Government Advocate [Crl.side] relied upon the evidence of the postmortem doctor, who was examined as PW-17 and through whom the postmortem certificate was marked as Ex.P11. Learned Government Advocate [Crl.side] pointed out to the final opinion that was given by the doctor where it has been stated that the deceased would appear to have died of craniocerebral injuries.
7. Learned Government Advocate [Crl.side] submitted that just because there are some contradictions in the evidence of eye witnesses, that by itself does not entirely discredit their evidence and the overt act of the appellant has been clearly spoken to by the eye witnesses and the trial Court has rightly appreciated the evidence and the appellant has been convicted and sentenced for offence u/s.304(i) IPC.
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8. This Court has carefully considered the submissions made on either side and perused the materials available on record.
9. In the present case, the incident is said to have taken place on 02.11.2009 when PWs.1 to 4 and the deceased were attending a festival at a cemetery. There was a dispute and both parties seem to have attacked each other. However, the eye witnesses in one voice are speaking as if there was a quarrel prior to the occurrence between A4 and the father of the deceased and it resulted in the attack. They safely do not talk about the scuffle that took place between the accused persons and the prosecution witnesses.
10. The above factum becomes evident from the deposition of PW-22, who is the Investigation Officer in this case. PW-22 has very specifically admitted in the cross-examination that A4 had sustained injuries and he was admitted as inpatient and based on the complaint given by him, a First Information Report came to be registered in Crime No.652 of 2009 for offences u/s.294(b), 323, 324 and 506(ii) IPC and this First Information 10/18 https://www.mhc.tn.gov.in/judis Criminal Appeal No.186 of 2016 Report has not been properly investigated by the Investigation Officer and it was closed as 'mistake of fact'. It is, therefore, evident that there was a scuffle between both the parties and the incident did not take place in the manner in which it is attempted to be projected by the eye witnesses.
11. When it comes to a case in counter, it has been repeatedly held by the Apex Court, followed by this Court that it is the duty of the Investigation Officer to investigate both the cases and file final report by exhibiting the materials collected by him through the investigation. It is ultimately left to the Court to find out the truth or otherwise and decide the case and an Investigation Officer cannot take the role of an adjudicator. In the present case, PW-22 has proceeded further and closed the First Information Report registered based on the complaint given by A4 as 'mistake of fact'. This is a fatal mistake that was committed by PW-22 and that by itself makes the case of the prosecution very shacky. Useful reference can be made to the judgments of this Court in 2007 (2) LW(Crl.) 827 and 2016 (1) MWN (Crl.) 219.
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12. Learned counsel for appellant relied upon two more judgments of the Apex Court in Lakshmi Singh and Ors. v. State of Bihar [AIR 1976 SC 2263] and Babu Ram & Ors v. State of Punjab [2008 (3) SCC 709] to strengthen his argument that wherever injury has been sustained by accused persons, the police is duty bound to investigate the same in order to find out if the attack was necessitated for the accused persons to exercise their right of private defence. The judgments that were relied upon by learned counsel for appellant only adds to the finding that has been already rendered by this Court supra.
13. The next important issue that was raised by learned counsel for appellant is the significant delay that has occasioned in discharging and handing over the express First Information Report to the Court. Both PW- 20, who registered the First Information Report and PW-22, who investigated the case, have clearly stated that the Court of Judicial Magistrate is only 10 minutes from the police station. If that is so, it is not known as to why the First Information Report that was registered at 12.45 12/18 https://www.mhc.tn.gov.in/judis Criminal Appeal No.186 of 2016 p.m. reached the Court only at 08.00 p.m. It is not as if in every case, where there is a delay in dispatching the First Information Report, the same will be fatal to the case of the prosecution. Such delays will gain significance in a case where the prosecution has attempted to conceal the very genesis of the case. In such cases, the element of deliberation in fixing the accused persons cannot be ruled out.
14. The next issue to be taken into consideration is the contradictions that were pointed out in the evidence of PWs.1 to 4, who also happened to be injured eye witnesses in this case. It is true that there are some contradictions and the trial Court has taken these contradictions into consideration and has rightly given the benefit of doubt to the other accused persons. However, when it comes to the appellant, there is consistency in the evidence of eye witnesses to the effect that the appellant had attacked the deceased with MO-1 on his head. To that extent, the overt act that was attributed against the appellant has been consistently spoken to by the eye witnesses.
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15. In the instant case, the deceased Sundaram died after nearly 11 days from the date of incident. PW-21 was the first Doctor, who gave treatment to the injured witnesses as well as to the deceased. PW-21 states that he found the following injuries when he examined the deceased, who was alive at that point of time.
" 1/ ijay; nghl;l fhak; 1 gpd;kz;ilapy;
fhzg;gl;lJ/
2/ 5x2x2 brkP fpHpe;j fhak; gpd;kz;ilapy;
fhzg;gl;lJ/
3/ 3x2x2 brkP fpHpe;j fhak; gpd;kz;ilapy;
fhzg;gl;lJ/
4/ 4x3brkP fd;dpa fhak; ,lJ eLkz;ilapy;
fhzg;gl;lJ/
5/ 3x3 brkP tPf;fk; tyJ Kd;d';fhypy;
fhzg;gl;lJ/
6/ 2x2 brkP tPf;fk; tyJ Kd;d';fhypy;
fhzg;gl;lJ/
7/ tyJ gf;f KJfpy; 8x2 brkP rpuha;g;g[ fhak;
fhzg;gl;lJ/"
16. It is not known as to where the deceased thereafter took treatment. There are absolutely no medical records available and no one speaks about the treatment that was given to the deceased. Ultimately, the deceased died 14/18 https://www.mhc.tn.gov.in/judis Criminal Appeal No.186 of 2016 only on 13.11.2009. The body was sent for postmortem and PW-17, Doctor, conducted the postmortem. PW-17, Doctor, conducted the postmortem and recorded the following injuries in the postmortem report that was marked as Ex.P11:
"1. Healing abrasion with whitish scar noted over
(a) back of right shoulder 1 x 1 cm.
(b) lateral aspects of right arm 3x2 cms, 2x0.5 cms, 1x1 cms.
2. Transversely oblique sutured cut wound in the midocciptial region with partial healing noted - measuring 6 x 0.5 cms x bone deep with 4 sutures.
3. Transversely oblique sutured cut wound 2 cms. below the wound No.2 with partial healing 5x0.5 cmsxbone deep with 6 sutures."
17. The postmortem doctor gave a final opinion that the deceased would appear to have died of craniocerebral injuries.
18. It is clear from the above that the deceased had died due to the head injuries sustained by him. The question is as to how severe were these injuries and what type of treatment was given to the deceased when he was alive for 11 days and the case of the prosecution is completely silent in this 15/18 https://www.mhc.tn.gov.in/judis Criminal Appeal No.186 of 2016 regard. In view of the same, it will be very unsafe to conclude that it was only because of the attack made by the appellant, the deceased succumbed to the injuries. It must be borne in mind that this is a case involving scuffle between two groups and it is not clear with respect to the overt act that has been attributed against the persons involved in both the groups. It is true that the witnesses have spoken about appellant attacking the deceased with MO-
1. However, the prosecution has not even chosen to show MO-1 to the doctor and seek for an explanation as to whether that weapon alone is capable of causing the injuries as were found in the body of the deceased and whether the deceased could have been saved if a proper treatment had been given to him.
19. In the light of the above discussion, this Court is inclined to interfere with the conviction and sentence imposed against the appellant. On a cumulative reading of the materials available on record and on appreciation of evidence, this Court finds that the appellant can be convicted 16/18 https://www.mhc.tn.gov.in/judis Criminal Appeal No.186 of 2016 for offence u/s.326 IPC. The act of the appellant can be brought u/s.320 (eighthly) IPC. The appellant has already faced charge for offence u/s.325 IPC and hence, no prejudice will be caused if the appellant is convicted for a lesser offence than the one for which he was convicted for culpable homicide not amounting to murder. Accordingly, this Court is also inclined to alter the sentence that was imposed against the appellant.
20. Accordingly, the judgment and order passed by the III Additional District and Sessions Judge, Kallakurichi, in S.C.No.1 of 2012, dated 08.09.2015, is modified and the appellant is convicted for offence u/s.326 IPC. The appellant is sentenced to undergo rigorous imprisonment for the period he has already undergone (one year and three months) and the fine amount imposed by the trial Court is sustained. Apart from that, there shall also be a direction to the appellant to pay compensation of a sum of Rs.1,50,000/- [Rupees One Lakh and Fifty Thousand only] to PW-2, who is the wife of the deceased Sundaram and this compensation shall be paid on or before 10.03.2023.
17/18 https://www.mhc.tn.gov.in/judis Criminal Appeal No.186 of 2016 N. ANAND VENKATESH, J gm
21. In the result, this Criminal Appeal is partly allowed. Post this case under the caption "for reporting compliance" on 13.03.2023.
23.02.2023 Index : Yes/No Speaking Order / Non Speaking Order Neutral Citation: Yes/No gm To
1.The III Additional District and Sessions Judge, Kallakurichi.
2.The Inspector of Police, Sankarapuram Police Station, Villupuram District.
Crime No.651 of 2009
3.The Public Prosecutor, High Court, Madras.
Criminal Appeal No.186 of 2016 18/18 https://www.mhc.tn.gov.in/judis