Madras High Court
Megalaya Anandan vs State By on 10 August, 2006
Bench: M.Chockalingam, A.Selvam
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 10/08/2006 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE A.SELVAM CRL.A.No.189 of 1998 1.Megalaya Anandan 2.Sekar 3.Murugan .. Appellants vs State by: Inspector of Police Thiruppathetthi Police Station Sivaganga District .. Respondent Criminal appeal preferred under Sec.374 of the Code of Criminal Procedure against the judgment of the Principal Sessions Judge, Sivaganga, in S.C.No.31 of 1997 dated 24.12.1997. !For Appellants ... Mr.S.Sekar ^For Respondent ... Mr.S.P.Samuel Raj, A.P.P. :JUDGMENT
(Judgment of this Court was delivered by M.CHOCKALINGAM, J.) The appellants three in number, who stood charged, tried along with five others in S.C.No.31 of 1997 on the file of the Principal Sessions Division, Sivaganga, and found guilty under Sec.302 read with 34 of I.P.C. and awarded life imprisonment, have brought forth this appeal, while all others were acquitted.
2.The short facts necessary for the disposal of this appeal can be stated thus:
(a) P.W.1 is the native of Semburayanendal. He is the son of the deceased Rasu Thevar. P.W.2 is the sister of the deceased. They owned agricultural lands. The first accused is the maternal uncle of the deceased. There was a long pending dispute as to the ownership of a pump-set between the aunt of P.W.1 and the accused. There was a panchayat, following which in the Police Station, they have been advised to go to a Court of civil law. There were civil proceedings pending. Those proceedings went in favour of the prosecution witnesses. While the matter stood thus, on 26.5.1995 at about 2.30 P.M., P.Ws.1 and 2 along with the father of P.W.1, the deceased, were watering the land. At that time, the accused constituting an unlawful assembly with a common object, came over there. A-1, A-2 and A-5 were armed with sticks, while A-3 and A-4 were armed with knives. A-6 to A-8 also accompanied them at that time. It was A-1 who uttered pointing to the deceased, "He is responsible for all these things. Kill him." Following the same, it was A-4 who attacked the deceased with the knife. He sustained serious injuries and fell down. P.W.1 and others witnessed the occurrence. Immediately, the accused fled away from the place of occurrence. They took Rasu Thevar to the hospital in a bus, where he was admitted by the Medical Person. Thereafter, an information was given to Thiruppachethi Police Station. P.W.9, the Sub Inspector of Police, on receipt of the said information, came over there and recorded the statement made by P.W.1, which is marked as Ex.P1. On the strength of Ex.P1, the complaint, a case came to be registered by the respondent police in Crime No.158/95 under Sections 147, 148, 341, 323, 324 and 307 of I.P.C. The printed First Information Report, Ex.P12, was sent to Court. He took up investigation, proceeded to the spot, made an inspection and prepared Ex.P4, the observation mahazar, and Ex.P13, the rough sketch.
(b) On the same day, at about 3.30 P.M., A-1 to A-4 came over to the respondent Police Station, and A-1 gave a complaint, on the strength of which a case came to be registered in Crime No.157/95 under Sections 147, 148, 341, 323 and 324 of I.P.C. The First Information Report was sent to the Court. Then, all the four injured accused were also medically examined by the Doctor, who has given the accident register copies, marked as Exs.P14 to P17 respectively.
(c) P.W.11, the Inspector of Police, took up further investigation.
Pending the investigation, A-1 to A-6 were arrested on 27.5.1995. A-4 gave a confessional statement, pursuant to which he produced M.O.1, knife, which was recovered under Ex.P6, the mahazar. On a requisition made by the Investigator, P.W.7, the Judicial Magistrate No.VI, Madurai, proceeded to the Government Hospital and recorded the dying declaration given by Rasu Thevar, after ascertaining that he was conscious enough to give the statement. It was also certified by the Medical Person that he was all along mentally fit and conscious enough to give the statement. Accordingly, it was recorded. The dying declaration is marked as Ex.P9.
(d) On 29.5.1995, an intimation was received from the Government Rajaji Hospital, Madurai, that the said Rasu Thevar admitted for further treatment, died at 7.10 A.M. Then, the case was altered to Sec.302 of I.P.C. The express report, Ex.P19, was sent to the Court. The Investigator proceeded to the mortuary, where he conducted inquest on the dead body of Rasu Thevar in the presence of witnesses and panchayatdars and prepared Ex.P20, the inquest report. Following the same, all the arrested accused were sent for judicial remand. Thereafter, a requisition was given to the Medical Officer for the conduct of autopsy.
(e) P.W.8, the District Police Surgeon and Professor of Forensic Medicine, Madurai Medical College, Madurai, on receipt of the said requisition, conducted autopsy on the dead body of Rasu Thevar and found the following injuries.
"1. Transversely oblique sutured incised wound above the umbilicus 4 cms x linear x entering the abdominal cavity. The wound found sutured with extension on the inner side as a laparotomy wound for a distance of 18 cms x linear; underlying muscles found sutured.
On dissection of abdomen:
Peritoneum adherent; loops of intestine adherent; mesentery muddy and hypheramic. Sutured wounds are noted in the ilium about 25 cms from the ilio- jejunal flexure and sutured wounds seen on the duodenal mesentery. Pelvic cavity contains 280 ml of foul smelling turbid fluid.
2.Sutured incised drainage wound seen on the right loin 3 cms x linear x pelvic cavity deep with drainage tube."
The Doctor has issued Ex.P11, the postmortem certificate, with his opinion that the deceased would appear to have died of external injury No.1 with its corresponding internal injuries (injuries to the intestine and mesentery) sustained by him.
(f) On completion of investigation, the Investigator filed the final report.
3.The case was committed to Court of Session, and necessary charges were framed. In order to substantiate the charges, the prosecution examined 11 witnesses and also relied on 20 exhibits and 1 material object. On completion of the evidence on the side of the prosecution, all the accused were procedurally questioned under Sec.313 of Cr.P.C., as to the incriminating circumstances found in the evidence of the prosecution witnesses, which they flatly denied as false. On the side of the defence, two witnesses were examined as D.Ws.1 and 2, and one document was marked as Ex.D1. The arguments advanced by both sides, were heard by the trial Court. The learned trial Judge, on scrutiny of the materials available found A-1, A-3 and A-4 guilty under Sec.302 read with 34 of I.P.C. and awarded life imprisonment, while all others were acquitted of the charges. Hence, this appeal at the instance of the appellants before this Court.
4.The learned Counsel appearing for the appellants made the following submissions:
(i) In the instant case, the prosecution has not brought forth the genesis of the case. According to the prosecution, the occurrence has taken place on 26.5.1995 at about 2.30 P.M. at the land, where P.Ws.1 and 2 along with the father of P.W.1, the deceased, were watering the lands, and at that time, all the accused armed with weapons came over there with the common object, and A-1 uttered "He (the deceased) is responsible for all these things. Kill him.", and it was A-4 who attacked the deceased with the knife following which he was taken to the Government Rajaji Hospital, Madurai, for treatment, where he died as a direct consequence of the injuries sustained by him, and thus, the accusations have been made, and others were shown as members of unlawful assembly, and A-3 and A-4 have abetted the offence at the time of the occurrence. Even as per the case of the prosecution, A-1 to A-4 appeared before the Sub Inspector of Police, and they were found with injuries. On a complaint given by A-1, a case came to be registered in Crime No.157/95 at about 4.00 P.M. on the very day. But, the instant case came to be registered by the very same police at 9.30 P.M. in Crime No.158/95. Even according to the prosecution, A-1 to A-4 were sent to the Government Hospital, and they were treated by the Medical Person. The accident register copies pertaining to A-1 to A-4, were marked as Exs.P14 to P17 respectively. A perusal of these documents would go to show that all these four accused were shown to have sustained simple injuries, and three of the accused sustained cut injuries, and they have also mentioned about the incident. It is a part and parcel of the transaction in question, and if to be so, the prosecution should have been fair enough to produce the F.I.R. at least in Crime No.157/95. In the instant case, the prosecution has neither produced any one of the documents pertaining to the said crime number, nor explained the injuries sustained by the accused. Thus, the prosecution has suppressed the genesis of the case and a part of the transaction also.
(ii) The prosecution much relied on the dying declaration given by the deceased to P.W.7, the Judicial Magistrate, and the proceedings are also marked as Ex.P9. Now, at this juncture, it is pertinent to point out that Rasu Thevar at the time of the dying declaration has pointed out that it was only A-1 who stabbed him and not A-4; but, P.Ws.1 and 2 have categorically deposed that at the time of the occurrence, it was A-4 who stabbed the deceased and caused the fatal injuries. Even according to P.W.2, they were all in the hospital with the deceased for a period of two days, and thus, there was all possibility of tutoring him to give such a version.
(iii) Apart from the above, there is nothing to show that he was all along conscious having a frame of mind, to give such a version. Under the circumstances, if the dying declaration is viewed from the evidence of P.Ws.1 and 2, it has got to be rejected. If the dying declaration is to be taken into account, then the evidence of P.Ws.1 and 2 has got to be rejected. However, the case of the prosecution became shaky in view of such evidence.
5.Added further the learned Counsel that in the instant case, so long as that part of the case has not been brought to the notice of the Court and apart from that, the injuries sustained by the accused, were also not explained, and the dying declaration is pointing to A-1, the prosecution had nothing to offer; that even as per the dying declaration, all the accusations can be made only against A-1 and nobody else; that so far as the dying declaration is concerned, some other accused were also mentioned namely Thangasamy and Duraisamy; but, they were not shown as accused, and they were also not added as accused till the end of the trial; that even the lower Court was not ready to place reliance on the dying declaration relied on by the prosecution; that under the circumstances, the appellants/accused are entitled for acquittal, which the lower Court has failed to do, and thus, justice has got to be rendered by this Court.
6.The Court heard the learned Additional Public Prosecutor on the above contentions.
7.In the instant case, it is not a fact in controversy that one Rasu Thevar who sustained injuries in an incident that took place at the time and place put forth by the prosecution, was taken to the Government Rajaji Hospital, Madurai, where he died subsequently as a direct consequence of the injuries sustained by him. Following the inquest made by the Investigator on the dead body, it was subjected to autopsy by P.W.8, the Doctor, and he has given a certificate to the effect that he died of the external injury No.1 with its corresponding internal injuries. This fact was never questioned by the appellants/accused either before the trial Court or before this Court. Hence, it can be safely recorded that Rasu Thevar died on account of homicidal violence.
8.In the instant case, the prosecution in order to establish the accusations made against the accused, relied mainly on the evidence of P.Ws.1 and 2 and also the dying declaration. Insofar as the dying declaration, according to P.W.7, the Judicial Magistrate, he recorded the dying declaration at 4.55 P.M. in the presence of the Medical Person, who has also been present even from the commencement till the end of the dying declaration, and he was also conscious enough to give a declaration. The Doctor has also certified to that effect. Under the circumstances, the dying declaration, a solemn document, has got to be given importance. A perusal of the dying declaration would clearly be pointing to the fact that it was the first accused who stabbed him, and he has not spoken anything about A-4. Thus, if the dying declaration is to be taken into account, it is pointing to A-1 who stabbed him at the time of the occurrence. He has mentioned number of persons, who were all present at the time of occurrence, and he has specifically mentioned two persons called Thangasamy and Duraisamy, who were neither added as accused nor tried. No accusation was made against them for the reasons best known to the investigating agency. So far as the evidence of P.Ws.1 and 2 is concerned, they have categorically spoken that they were present at the time of occurrence, and all these accused armed with weapons, came over there and it was A-4 who stabbed Rasu Thevar, and he sustained injuries. As rightly pointed out by the learned Counsel for the appellants, if the dying declaration has to be given effect, then the evidence of P.Ws.1 and 2 has got to be rejected because the dying declaration is pointing to the guilt of A-1, and the evidence of P.Ws.1 and 2 would be pointing to the guilt of A-4. Thus, if one part of the case of the prosecution is believed, then the other part of the case becomes shaky.
9.Apart from the above, in the instant case, the Court is able to notice that the prosecution was not fair enough to place the entire case before the trial Court in order to either appraise the case or find out the truth and then, come to the correct conclusion. The occurrence has taken place on 26.5.1995 at 2.30 P.M., according to the prosecution. According to P.W.9, the Sub Inspector of Police, A-1 to A-4 came to the Police Station at about 3.30 P.M. or 4.00 P.M., and A-1 gave a complaint, as a result of which a case came to be registered by the respondent police in Crime No.157/95 at 4.00 P.M., and the provisions of Sections 147, 148, 341, 323 and 324 of I.P.C. are also there. A-1 to A-4, according to P.W.9, sustained injuries, and they were also referred along with the medical memo to the Government Hospital. They were all examined by the Doctor, where from Exs.P14 to P17, the accident register copies, have emanated. A perusal of Exs.P14 to P17 would clearly reveal that all the injuries sustained by them, were simple; but, three of the accused sustained cut injuries. At this juncture, it is pertinent to point out that the Doctor, who medically examined these four accused, was not examined before the Court. From the very recitals found in Exs.P14 to P17, it would be quite evident that the injuries were sustained by A-1 to A-4 in the very same transaction, as one covered under Crime No.158/95 in respect of which the prosecution has brought forth the present case. Thus, it would be quite clear that A-1 to A-4 sustained injuries in respect of which Crime No.157/95 has come into existence; but, the prosecution now comes with the case registered in Crime No.158/95 in which Rasu Thevar died. If to be fair enough, the prosecution should have not only marked the F.I.R. in Crime No.157/95, but also placed all the materials available till the case was closed. It remains to be stated that not even the F.I.R. in that case was placed before the Court. Once A-1 to A-4 sustained injuries in the same transaction, and they were also medically treated, and the case came to be registered at the instance of A-1, the non-filing of the F.I.R. and other documents in that case has affected the prosecution case. It can be well stated that the prosecution has not enabled the Court to have a thorough trial, appraise the entire transaction and come to the correct conclusion in the case. Thus, the genesis of the case remained unknown till the case was decided. Apart from that, the non-filing of the documents pertaining to Crime No.157/95, in the opinion of the Court, was nothing but a suppression of part of the transaction. As stated above, the prosecution was not fair enough in the instant case.
10.Besides that, according to the Investigator, pending the investigation, he went to the spot and made an inspection, and he did not remember whether any blood mark was found in the place of occurrence; but, according to P.W.9, the Sub Inspector of Police, after the registration of the case in Crime No.157/95, he went to the spot, and he did not recover bloodstained earth since no blood mark was found. P.W.9 would further add that no material was found in the place of occurrence. The prosecution had no explanation to offer in that regard, and also no materials were placed before the Court. Now, at this juncture, it has to be pointed out that when such an occurrence has taken place, naturally one would expect the presence of blood mark in the place of occurrence; but, nothing has been found and brought forth.
11.The learned Additional Public Prosecutor laid stress on the dying declaration which was recorded by the Judicial Magistrate. True it is, in a case like this, the dying declaration given by the deceased to a Judicial Magistrate, would be suffice to accept the case of the prosecution and sustain a conviction. But, in the instant case, the Court is unable to accept that part of the case in view of the fact that the prosecution has suppressed the genesis of the occurrence. While the prosecution was not fair enough to bring forth the totality of the case thereby enabling the Court to have a thorough trial and take a correct decision, the dying declaration will not be helpful to the prosecution either to hold that A-1 was guilty or to sustain a conviction. So far as A-3 and A-4 are concerned, no materials are available to connect them with the crime in question.
12.It is reported that A-1 is dead pending the appeal, and thus, the appeal stands abated as regards the first appellant/A-1.
13.In view of the reasons stated above, the judgment of the lower Court has got to be made undone only by upsetting the judgment, and the appellants 2 and 3/A-3 and A-4 are entitled for an acquittal. Hence, this criminal appeal is allowed setting aside the judgment of conviction and sentence passed by the lower Court. The appellants 2 and 3/A-3 and A-4 are acquitted of the charges levelled against them. The bail bonds executed by them, shall stand cancelled.
To:
1.The Principal Sessions Judge, Sivaganga
2.The Inspector of Police, Thiruppathetthi Police Station, Sivaganga District
3.The Public Prosecutor, Madurai Bench of Madras High Court