Madras High Court
Seenuvasan vs State Rep. By on 4 September, 2018
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 31.07.2018
PRONOUNCED ON : 04.09.2018
CORAM:
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
CRL.A.No.819 of 2012
1.Seenuvasan
2.Dakshinamoorthy
3.Ramanathan
4.Sukumar
5.Suresh
6.Elumalai ... Appellants
Vs
State rep. by
The Inspector of Police,
Avalurpettai Police Station,
Crime No.400 of 2009 ... Respondent
Prayer:- Criminal Appeal filed under Section 374(2) of Criminal Procedure Code, to allow the appeal, set aside the conviction and sentence passed by the Assistant Sessions Judge, Gingee in S.C.No.73 of 2011 dated 31.10.2012.
For Appellant : Mr.V.Gopinath, senior counsel
for Mr.L.Mahendran
For Respondent : Mr.R.Ravichandran, G.A.
(Crl. Side)
JUDGMENT
This appeal is directed as against the judgment dated 31.10.2012. made in S.C.No.73 of 2011 on the file of the learned Assistant Sessions Judge, Gingee, thereby convicted the appellants for the offences under Sections 148, 307 read with 149 of I.P.C. and sentenced them to undergo 10 years rigorous imprisonment and fine of Rs.2,000/- each in default to undergo imprisonment for three months simple imprisonment for the offence under Section 307 read with 149 of I.P.C. and sentenced them to undergo three years rigorous imprisonment for the offence under section 148 of I.P.C. Further, convicted the appellants 3 and 4 for the offence under Section 326 of I.P.C. Even though, the appellants 3 and 4 are convicted for the offence under Section 326 of I.P.C., no separate sentence has been imposed in view of the sentence imposed under Section 307 of I.P.C. against A3 and A4.
2. The case of the prosecution is that on 19.09.2009 at about 5.30 a.m., when P.W.1 came out from his residence, with the intention to kill him, the first appellant scolded him with filthy language and attacked on his head by billhook; second appellant attacked P.W.1 on his head and back; third appellant attacked him with billhook on his left middle finger; fourth and fifth appellants attacked with stick on his legs and the sixth appellant attacked with iron rod on P.W.1's left wrist and he sustained grievous injuries. When P.W.2 intercepted the attack of the appellants, he also sustained injury on his right wrist and also the appellants attacked him with legs and P.W.2 sustained simple injury. Both were taken initially to Gingee Government Hospital and thereafter, they went to JIPMER hospital at Pudhucherry. On information from JIPMER hospital, P.W.13 received information and recorded the statement of P.W.1 and registered a case in crime No.400 of 2009 for the offences under Sections 147, 148, 294, 324, 323, 506(ii) and 307 of I.P.C. as against all the accused. P.W.13 conducted investigation and filed charge sheet for the offences as stated above.
3.The trial Court framed charges for the said offences and the accused pleaded not guilty and pleaded for trial. During the course of the trial, in order to prove the charges, the prosecution examined P.Ws.1 to P.Ws.13 and marked Exs.P.1 to Ex.P.15 and produced material objects M.Os.1 to M.Os.3. When the accused were questioned under Section 313 of Cr.P.C. about the incriminating evidence against them, they denied the same. On the side of the accused, they examined D.Ws.1 and 2 as defence witness and marked Exs.D1 and D2. Upon considering the oral and documentary evidence, the trial Court convicted all the accused and sentenced them as stated above. As against the said conviction and sentence, the present appeal has been preferred by the appellants/accused.
4.The learned senior counsel appearing for the appellants contended that the prosecution completely failed to prove the charges as against the appellants. There is a delay even in registering the first information report. According to the prosecution, the occurrence took place on 19.09.2009 at about 05.30 a.m., whereas, the first information has been registered only at 09.00 a.m. That apart, the first information report was sent to the concerned jurisdictional Magistrate Court only on 24.09.2009, whereas, the same was registered on 19.09.2009 itself. There is absolutely no explanation by the prosecution for the said delay. There are major contradictions between the evidence of P.Ws.1 to 4, who happened to be the eye witnesses to the occurrence. Those contradictions are fatal to the case of the prosecution.
5.The learned senior counsel appearing for the appellant further contended that P.Ws.1 and 2 are the injured witnesses. They know very well about the names of the accused, since they are very close relatives. They categorically mentioned their names in their statements and the first information has been registered as against all the appellants, whereas, they have not mentioned in Accident Registers, Exs.P.9 and 10 before the hospital, which are earliest documents to the case of the prosecution. Moreover, in the complaint, P.W.1 mentioned six names, whereas, in Accident Registers, they stated that they were attacked by four known persons. Both P.Ws.1 and 2 stated before the doctor P.W.12, that they were attacked by four known persons and they did not mention the names of the accused. Therefore, the version of the prosecution are not supported by any witness as alleged by the prosecution.
6.The learned senior counsel appearing for the appellants further contended that A1 and A6 were not at all present at the scene of occurrence. They were working in a private company and private hospital respectively at Chennai at the time of the alleged occurrence. This plea of alibi is proved by examining D.Ws.1 and 2 and attendance register of A1 and 6 are marked as Exs.D1 and 2 respectively. The learned trial Judge without even discussing or considering the evidence and documents of the defence side, mechanically convicted the appellants. It is also corroborated by Exs.P.9 and 10, A.R.Copies, since P.Ws.1 and 2 have stated that they were attacked by four known persons. Therefore, the prosecution failed to prove the case as against the appellants.
7.The learned senior counsel further contended that P.Ws.1 and 2 are the accused of murder case in a murder of father-in-law of A1 and A6 and also there is previous enmity between other appellants with P.Ws.1 and 2. Therefore, they wantonly foisted a false case as against the appellants and as such, the conviction and sentence imposed on the appellants are liable to be set aside.
8.Per contra, the learned Additional Public Prosecutor appearing for the respondent State contended that the prosecution proved the case as against the appellants beyond any doubt and as such, the conviction and sentence imposed by the trial Court do not warrant any interference from this Court. He further contended that P.Ws.1 and 2 are the injured witnesses and their evidence are corroborated by P.Ws.3 and 4 and as such, the prosecution proved the case beyond any reasonable doubt. P.W.12, doctor's evidence categorically proved the injuries sustained by P.Ws.1 and 2. The motive also proved by the prosecution that the father-in-law of A1 and A6 was murdered by P.Ws.1 and 2 and as such, they had enmity with P.W.1 and attacked him. The simple discrepancies and contradictions between the evidence of P.Ws.1 to 4 are not fatal to the case of the prosecution and prayed for confirming the conviction and sentenced imposed by the trial Court.
9.Heard the learned counsel appearing for the appellants and the learned Additional Public Prosecutor appearing for the State and perused the materials placed before this Court.
10.P.W.1 is the father and P.W.2 is the son and they are the accused of murder case of murdering the father-in-law of A1 and A6. Both the parties are relatives. On perusal of examination of P.W.1's evidence, it would show that while he was coming out from his house at about 05.30 a.m. on 19.09.2009, all the appellants came with billhook, stick and iron rod and attacked him. When the same was intercepted by P.W.2, they were attacked P.W.2 also. The specific overt acts are concerned, there are contradiction between P.Ws.1 and 2, who are injured witnesses. It is also contradicted with the evidence of P.Ws.3 and 4, who are also eye witnesses to the occurrence. Further, P.Ws.1 and 2 were initially taken to Gingee Government Hospital and the same was duly informed to P.W.13, investigating officer. P.W.13 deposed that he received information from Gingee Government Hospital at about 08.30 a.m. Even then, he did not register any case on the information received by him. The prosecution also failed to mark any Accident Register from Gingee Government Hospital. Further, the occurrence took place at about 05.30 a.m. and after recording the statement of P.W.1 viz., Ex.P1 at about 06.30 p.m., at about 09.00 p.m., the case has been registered. Therefore, it is clear that there is a delay in registering first information report, for which, there is no explanation by the prosecution.
11.Further, the first information report, Ex.P11 has been registered on 19.09.2009 and the same was sent to the concerned Jurisdictional Magistrate Court only on 24.09.2009. There is also no explanation by the prosecution for the delay in sending the first information report. As such, from the above, it is seen that there is a doubt even registering the case itself and the prosecution failed to prove the case beyond any reasonable doubt. In this regard, it is relevant to rely the judgment reported in 2003 Crl.L.J. 17 (SC) - Alla China Apparao & Ors vs State Of Andhra Pradesh, wherein, the Hon'ble Supreme Court has held that the expression forthwith in Section 157(1) of Cr.P.C. mandated that the first information has to be sent to the Court with reasonable dispatch. If the delay remains unexplained, that could not be aq ground for rejecting the prosecution case and it would be a strong circumstance for continuing the trustworthiness of the prosecution case. If the delay was not explained, adverse inference might be drawn against the veracity of the prosecution case. Therefore, the proposition of law is that an first information report should be sent to the Court with reasonable dispatch. If there was a delay, the delay would have to be explained.
12.In similar circumstances, the Hon'ble Apex Court of India has held in Ramesh Baburao Devaskar andOthers Vs. State of Maharastra reported in 2007(13) SCC 501 that the requirement of Section 157 of Cr.P.C., is not satisfied. The delay in sending the first information report to the Court is required under Section 157 of Cr.P.C. In the case on hand, there is no explanation for the delay of 5 days in sending the first information report to the concerned jurisdictional Magistrate Court.
13.Insofar as the presence of A1 and A6 in the scene of occurrence is concerned, it is relevant to extract the portion of evidence of P.W.12, doctor, who treated P.Ws.1 and 2, which reads as follows:
fle;j 19.9.09 md;W fhiy 7 kzpastpy; ehd; gzpapy; ,Ue;j nghJ Mde;jd; 65 taJ j/bg.mhpfpUc&;zd;> r";rPtpuauhad; ngl;il nrh;e;j jd;Dila cwtpdh; b$aghyd; vd;gth; rpfpr;irf;fhf miHj;J te;jhh;. mtiu tprhhpj;jjpy; bjhpe;j ehd;F egh;fs; 19.9.09 md;W fhiy 5 kzpf;F jd; tPl;L mUnf cUl;Lf; fl;ila[k; kw;Wk; bfhLth fj;jpahy; jhf;fpajhf Twpdhh;. He further deposed as follows:
mnj jpdj;jpy; jpdfud; 30 j/bg.Mde;j; r";rPtpuhad;ngl;il nrh;e;j mtUila cwtpdh; b$aghy; vd;gth; rpfpr;irf;fhf miHj;J te;jhh;. mtiu tprhhpj;jjpy; mth; jd;id 19.9.09 njjp md;W fhiy 5 kzpastpy; jd; tPl;od; mUnf jdf;F bjhpe;j ehd;F egh;fs; cUl;L fl;il kw;Wk; bfhLth kw;Wk; fj;jpahy; jd;id jhf;fpajhf Twpa[s;shh;. Though P.Ws.1 and 2 very well know the names of the appellants, they have not mentioned their names before the doctor. Further, both P.Ws.1 and 2 stated that they were attacked by four known persons, whereas, in the first information report, P.W.1 has specifically stated the names of six accused/appellants and their overt acts. It is nothing but improved version and motivated one.
14.The first and sixth appellants were working at the time of occurrence as Maintenance Supervisor and Plumber respectively. To bring the said defence, the appellants examined D.Ws.1 and 2. The relevant portion of evidence of D.W.1 reads as follows:
M$h; vjphpfspy; 6tJ vjphp VGkiy v';fs; epWtdj;jpy; Vw;bfdnt gzpg[hpe;J te;jhh;. mth; gpsk;gh; kw;Wk; vyf;l;hprpadhf gzpg[hpe;J te;jhh;. v';fs; epWtdj;jpy; mt;thW gzpg[hpgth;fSf;F tUif gjpntL eph;tfpf;fg; gLfpwJ. CHpah;fs; ,ut[ gfy; vd;W rpg;l; Kiwapy; gzpbra;thh;fs;. nkw;go 6tJ vjphp VGkiy brg;lk;gh; 2009 y; 18> kw;Wk; 19 njjpfspy; ntiyf;F ,ut[ oa[l;oapy; gzpg[hpe;jjhf vq;fs; tUif gjpntl;oy; gjpt[ cs;sJ. ,ut[ 8 kzpf;F Muk;gpj;J fhiy 8 kzpf;F gzp KotilfpwJ. mjw;Fz;lhd brg;lk;gh; khjk; 2009k; Mz;Lf;Fhpa tUifgjpntl;oy; b$uhf;;!; efiy ePjpkd;wj;jpy; jhf;fy; bra;fpnwd;. me;j tUifgjpntl;od; rhd;wpl;l efiy jhf;fy; bra;Js;nsd;. mJ v.j.rh.M 1 MFk;. brd;idapy; cs;s nfhak;ngl;oy; ut[z;lhdhtpy; v';fs; kUj;Jtkid cs;sJ. ,d;bdhU epWtdk; 16tJ bkapd;nuhL mz;zhefh;> brd;idapy; cs;sJ. brd;idapypUe;J br";rp 150 fp.kP. J}uj;jpw;F nky; ,Uf;Fk;. The relevant portion of evidence of D.W.2 reads as follows:
M$h; vjphp 1 rPdpthrd; vd;gth; v';fs; bkapd;lbdd;!; R{g;gh;itruhf ntiy ghh;j;J te;jhh;. mth; 2004 ypUe;J 2011tiu ntiy ghh;j;J te;jhh;. v';fs; epWtdj;jpy; bkapz;lbdd;!;f;F ,ut[ gfy; vd;W ,uz;L rpg;l; cz;L. mt;thW ntiyghh;f;Fk; CHpah;;fSf;F ml;blz;ld;!; cz;L. ePjpkd;wj;jpy; te;j fojj;jpd;go ehd; tUif gjpntL bfhz;Lte;Js;nsd;. epWtdj;jpd; tUif gjpntl;od; go 1tJ vjphp rPdpthrd; brg;lk;gh; 2009 y; 18> 19 e; njjpfspy; rpg;l;oy; ntiy ghh;j;jhh; vd;W cs;sJ. ,ut[ 7.30 kzp Kjy; fhiyapy; 6.30 kzp tiu ntiyghh;f;f ntz;Lk;. 12 neu gzpahFk;. mt;thW ntiy ghh;j;jjw;fhd tUifgjpntl;od; b$uhf;!; efiy jhf;fy; bra;fpnwd;. me;j tUifgjpntl;od; tUifgjpntl;od; b$uhf;!; efy; v.j.rh.M 2 MFk;. mt;thW rpg;l;oy; ntiy ghh;f;Fk; nghJ btspna bry;y KoahJ. vk;.vk;.o apy; rp.vk;.gp.o Vhpahtpy; ntiy ghh;g;ghh;fs;. midj;Jk; oghh;l;bkz;l; fz;l;nuhypy; ,Ue;J tUtjhy; mt;thW ,ut[ gzpf;F te;jth;fs; mth;fis kPwp btspna bry;y KoahJ.
15.It is seen from the above, A1 and A6 herein were working as Maintenance Supervisor and Electrician in the private companies at the time of occurence and it is also proved from the evidence of D.Ws.1 and 2. It is also corroborated by Exs.P9 and 10, Accident Registers registered by Doctor P.W.12, as P.Ws.1 and 2 were attacked only by four persons. As such, the prosecution failed to prove the charges as against the appellants herein. Therefore, in overall, this Court is of the view that the prosecution has failed to prove the case beyond any doubt and also, there is no explanation for the delay in registering the first information report and the delay in sending the same to the concerned jurisdictional Magistrate Court and though in the complaint, all the accused persons name and their overt acts have been mentioned, whereas, in Exs.P9 and P10, it has been stated only four known persons and altogether, it is seen that benefit of doubt goes in favour of the appellants.
16.In view of the above discussion, this criminal appeal is allowed and the Judgment dated 31.10.2012 made in S.C.No.73 of 2011 passed by the learned Assistant Sessions Judge, Gingee in is hereby set aside and the appellants/accused are acquitted of all the charges levelled against them. Fine amount, if any, paid shall be refunded to the appellants forthwith. Bail bonds, if any, executed shall stand cancelled.
04.09.2018 Index:Yes/No Internet:Yes/No Arul To
1.The Assistant Sessions Judge, Gingee
2.The Inspector of Police, Avalurpettai Police Station.
3. The Public Prosecutor, High Court, Madras.
G.K.ILANTHIRAIYAN, J., Arul JUDGMENT IN CRL.A.No.819 OF 2012 04.09.2018