Madras High Court
Shanmugham And Ors. vs State, Rep. By Inspector Of Police on 27 November, 2007
Author: S. Ashok Kumar
Bench: S. Ashok Kumar
JUDGMENT S. Ashok Kumar, J.
1. This Criminal Appeal has been filed by the accused 1 to 5 as against the judgment, dated 24.3.2000, passed in S.C. No. 256 of 1999 by the learned II-Additional Sessions Judge, Madurai convicting the accused 1 to 3 under Section 148 IPC and sentencing them to undergo two years rigorous imprisonment, convicting the accused 4 and 5 under Section 148 IPC and sentencing them to undergo one year rigorous imprisonment, convicting accused 1 to 3 under Section 304(II) IPC and sentencing them to undergo five years rigorous imprisonment and to pay a fine of Rs. 1000/- in default to undergo six months rigorous imprisonment, convicting accused 4 and 5 under Section 304(II) read with Section 149 IPC and sentencing them to undergo three years rigorous imprisonment and to pay a fine of Rs. 10,000/-, in default to undergo six months rigorous imprisonment, convicting the accused 1 and 2 under Section 324 IPC and sentencing them to undergo two years rigorous imprisonment, convicting the accused 1 to 5 under Section 506(II) IPC and sentencing them to undergo three years rigorous imprisonment.
2. The brief facts of the prosecution case are as follows:
(i) On 2.7.1998 at 5.15 a.m., at Mela Gudalur when the deceased Isakkirajan and P.W. 1 Kanagaraj were proceeding in bicycles near Governor Lane in connection with paper distribution, because of the enmity as the deceased had purchased the house from Mottaiyandi, the accused 1 to 5 armed with Iron Rod, Aruval, wooden sticks, broomstick assaulted the deceased in various parts of his body and caused his death. According to the prosecution, the first accused with the iron rod attacked again and again on the right hand fore arm, wrist, left hand elbow of the deceased, the second accused with the wooden stick beat the deceased on his both thighs, knee of his right leg, on his palms, on the dorsum of left foot, the third accused caused blows with the Aruval on his left hand elbow, the fourth and fifth accused with the broomstick beat the accused all over his body. When the accused were prevented by P.W. 2 Jothilakshmi, she was also attacked by the accused 1 and 2 with wooden sticks on her both thighs and also threatened P.W. 1 with dire consequences and thus the accused have committed offences punishable under Sections 147, 148, 323, 324, 325, 302, 355, 506(II) read with 149 IPC.
(ii) After giving complaint Ex. P.1, by P.W. 1 and others at the Gudalur South Police Station, the injured was taken to the Cumbum Government Hospital and thereafter taken to the Government Hospital at Madurai. PW.31, The sub Inspector of Police who was in charge of the said Police Station visited the place of occurrence and prepared Observation Mahazar Ex. P.6 and Rough Sketch under Ex. P.19 in the presence of witnesses. He also recovered M.Os.4 and 5, wooden sticks and broomsticks from the place of occurrence. Thereafter he went to the Madurai Rajaji Government Hospital and obtained tatement from the injured Isakkirajan which is Ex. P.20. From the Hospital he also recovered MOs.1 and 2, bloodstained cloths worn by the injured. He also recorded statements from P.Ws.1 to 3 in the Hospital. Thereafter on 9.7.1998 on receipt of the death intimation of the injured Isakkirajan, he altered the FIR into Sections 147, 148, 323, 324, 325, 355, 506(II) and 302 IPC sent Express Report under Ex. P.21.
(iii) P.W. 34, Inspector of Police, who took up further investigation conducted inquest on the body of the deceased and the inquest report is Ex. P.24. He obtained statements from other prosecution witnesses. He arrested accused Sittai and Backialakshmi and on the confession statement given by Backialakshmi, recovered the iron rod and Aruvel in the presence of witnesses. In the meanwhile, P.W. 16, Dr.Thiagarajan, who conducted postmortem on the body of the accused issued Ex. P.5, Postmortem Certificate, wherein the following antemortem injures have been noted by him:
1) Contusion on the right forearm 17 cms x 10 cms ( On dissection-dark coloured blood clots fracture both bones (radious and ulna) radious middle 3rd ulna lower 3rd.
2) contusion back of left elbow 8 cms x 6 cms on dissection- fracture upper 3rd ulna seen with dark colour blood clots.
3) Partly healed lacerated injury left elbow measuring 1 cm x 05 cm
4) contusion right knee measuring 17 cms x 10 cms 300 ml dark blood clots fracture patella
5) Abrasion partly healed with contusion left ankle measuring 8 cms x 6 cms. On dissection0-fracture of lower end of febula.
6) Contusion left upper chest measuring 10 cms x 8 cms with dark coloured blood clots. Crack fracture of left collar bone seen.
Healed abrasions seen on the following areas: (a) left lower leg front 4 cms x 4 cms; (b) back of right elbow 4 cms x 3 cms (c) abrasion left foot dorsum 3 cms x 3 cms.
7) Contusion right palm 4 cms x 3 cms dark coloured blood clots. intravenous drip surgical treatment wound right ankle 1 cm x 0.5 cm x skin deep.
(iv) P.W. 16 also opined that that the deceased would appear to have died of respiratory arrest as a result of cumulative effect of multiple injuries with multiple fractures and the complications thereof.
(v) P.W. 34, Inspector of Police continuing his investigation, obtained statements from the Doctors and also obtained the Sale Deed in favour of Mottaiyandi, over which there was some enmity which led to the killing of the deceased and filed the final report under Sections 147, 148, 323, 324, 325, 302, 355, 506(ii) and 149 IPC.
3. Before the Sessions Judge, on behalf of the prosecution, P.Ws. 1 to 34 were examined and Exs.P.1 to P.24 were marked, besides MOs.1 to 7. The accused did not examine anyone and did not mark any documents or material objects. On a consideration of the material documents, the learned Sessions Judge found the accused guilty, convicted and imposed sentences on them as stated already and aggrieved of the same, the present appeal is filed.
4. Learned counsel for the appellant submitted that A.1 is the father, A.2 and A.3 are the sons of A.1 and they are students, while A.4 and A.5 are the wives of A.1. Though the occurrence is said to have taken place on 2.7.1998 at 5.15 a.m., but the complaint Ex. P.1 given by the deceased was received by the court only on 9.7.1998 at 3.30 a.m., Further the deceased died in the hospital on 9.7.1998 at 3.15 a.m., and all these would show that Ex. P.1 was prepared after the death of the deceased. Further, though the printed FIR Ex. P.17 bears the initial of the Magistrate and the time noted therein was as 3.30 a.m., P.W. 26, Head Clerk has deposed that the learned Magistrate received the documents only in the afternoon, which would only go to show that Ex. P.1 and Ex. P.17 were prepared and dispatched only after the death of the deceased.
5. Learned counsel also submitted that in Ex. P.1, P.W. 1 has mentioned the names of 5 accused and others as assailants. However in the FIR the names of the other accused has not been mentioned. In Ex. P.2 Accident Register the deceased has mentioned that 12 persons attacked him. However, the prosecution has arrayed only 5 persons as accused and thus there is a great doubt about coming into being of the FIR.
6. Further, though P.W. 29 has stated that he has received a written complaint from P.W. 1, it is the evidence of P.W. 1 that he cannot remember who has written the complaint Ex. P.1, which was given at the Police Station. It is also further argued that the motive as alleged by the prosecution has not been well established and in fact Mottaiyandi has not been examined and Ex. P.18 also does not relate to property. In fine, learned counsel for the appellant submitted that the evidence of P.W. 1 is not corroborated with the evidence of other prosecution witnesses. According to to P.Ws 2 and 3, they came to the scene of occurrence only after the occurrence and they were not present at the time of alleged assault made by the appellants. In Ex. P.1 and P.17, the use of broomsticks is not mentioned. P.W. 2, Jothilakshmi, who also sustained injuries only taken treatment on 10.7.1998, the next date of death of the deceased and before the Doctor, she has stated that she was attacked by 12 known male persons and one female person. P.W. 32 Dr.Malairajan, who was on duty at the time of death of the deceased at Rajaji Government Hospital, Madurai deposed that cause of death can be perfectly opined only by the Doctor who gave treatment. Learned counsel pointing out these discrepancies urged that the conviction arrived at by the Sessions Judge is not sustainable and the accused are entitled for acquittal.
7. Per contra, the learned counsel appearing for the respondent would contend that P.W. 2 is an injured eye witness and her evidence need not be discarded and further even though P.Ws.1 to 3 are relatives of the deceased, they are eye witnesses, who have given cogent evidence as regards the occurrence.
8. The occurrence has taken place at 5.00 a.m., on 2.7.1998. At 6.00 a.m., Ex. P.1 complaint has been given by P.W. 1, brother of the deceased. On his complaint, an FIR was registered in Crime No. 162/98 under Section 147, 148, 323, 325, 355 and 506 II IPC. The injured was taken to the Cumbum Government Hospital at 7.00 a.m., with Police Memo by one Gurusamy. According to P.W. 12, Dr.Sakthivel, who admitted the injured at the said Hospital, the injured himself told him that he was assaulted by 12 persons with Kattai, Kambu and Vettaruval in the same morning. But, when P.W. 2 was treated at the Hospital on 10.7.1998, the next date of the death of Isakkirajan on 9.7.1998 at 3.15 a.m., on a reference by the Inspector of Police, who investigated the case, she has informed that she was assaulted with sticks by 12 known male persons and one female person on 2.7.1998 at about 5.15 a.m., Thus the number of persons said to have attacked the deceased and P.W. 2 according to Ex. P.1 complaint are 5 i.e., only family members of A.1, whereas according to Ex. P.2 Accident Register, 12 known male members and according to Ex. P.3 Accident Register by known 12 male members and one female member. Further, P.W. 3 also stated that at Cumbum Hospital, the injured was conscious and gave a statement to the Police. But such statement is not produced before the court.
9. There is lot of controversy regarding the complaint Ex. P.1 made by P.W. 1. According to P.W. 29, Head Constable, who registered the FIR, P.W. 1 presented a written complaint, based on which a case was registered. On this aspect when PW.1 was question, in his cross examination he has deposed as follows:
I do not remember who wrote the complaint at the Police Station as per his dictation. I do not know whether it is Sub Inspector of Police, who wrote the complaint. I do not know whether any person was available with police dress in the Police Station at the point of time. I do not know who write Ex. P.1 complaint. I cannot say to whom I gave the complaint. When I gave the complaint, my elder brother was conscious. My elder brother also gave a statement at the Police Station an the same was also recorded. If it is suggested that in my complaint I have mentioned that several unknown persons came and beat my brother, I could say 7 to 8 persons attacked my brother. I do not know their name and identity. Those persons who were chasing my brother who can be identified by me are not the present in court.
10. There are contradictions regarding the overt acts of the accused. P.W. 1 has deposed that A.1 cut the deceased with Aruval. But in Ex. P.1 complaint P.W. 1 has not stated that A.1 cut the deceased with Aruval. On the other hand he has stated that A.1 beat his brother on the left flank and left wrist. In Ex. P.2 Accident Register, use of iron rod is not mentioned. In Ex. P2, the weapons said to have been used by 12 persons are Kattai, Kambu, Vettaruval But in Ex. P.3 Accident Register, the weapons used for the assault are said to be sticks (Uruttu Kattaigal). The overt act attributed to A.4 and A.5 is that both of them beat the deceased with broomsticks. But in Ex. P.2 and P.3, Accident Registers, using of broomsticks is not mentioned. P.W. 3 could not have been an eye witness for othe occurrence because of her own admission made during cross examination that "before my reaching the place, they have beaten up my son, they also beat my daughter-in-law".
11. Learned counsel for the appellants pressed into service the judgments reported in 2005 (2) LW (Crl.787) and 2005 (2) LW.(Crl) 779, to stress the fact that when number of accused are allegedly involved in the occurrence and different versions are given by the prosecution witnesses, then the accused are entitled for benefit of doubt and acquittal on that ground.
12. In Subramani @ Manian v. State, rep. by Inspector of Police reported in 2005 (2) LW (Crl) 787, a Division Bench of this Court has held as follows:
13. The second aspect of the matter which would go to the root of the prosecution case is that according tot he prosecution, A-1 to A-5 armed with deadly weapons, constituted unlawful assembly and attacked the deceased and P.Ws 2,3 and 4. The earliest document which came into existence, is the accident register copy. So far as the deceased was concerned, Ex. P.13 accident register copy was issued by P.W. 14. AS regards P.W. 2, the accident register copy is Ex. P.10. The accident register copy in respect of P.W. 3 is Ex. P.11. Ex. P.12 is the acid net register copy relating to PW.4. A perusal of these earliest documents would clearly indicate that the deceased has informed to P.W. 14 the Doctor, that four persons attacked him, which is recorded in Ex. P.13. P.W. 3 has informed to P.W. 14 that four persons attacked him, and it is also recorded in Ex. P.11. At about 11.00 p.m, P.W. 14 has examined P.W. 4, and the wound certificate issued by him is Ex. P.123 wherein it is found that two persons attacked PW.4. it is urther4 pertinent to point out that P.W. 2 was examined by P.W. 13 on 1.2.1996 at 10.10 a.m., and the accident register copy is marked as Ex. P.10, wherein P.W. 2 has stated that he was attacked by six persons, and thus different versions are given by the witnesses in these documents as to how many persons involved in the crime. But, the prosecution comes with the specific case that five persons attacked the deceased and the witnesses, which is inconsistent with the earliest statements made by the witnesses, who, according to the prosecution, are eye witnesses.
14. xx xx xx xx xx
15. ... A perusal of the evidence what is available before the lower court would go to show that the first information placed before the trial court, is shrouded with suspicion, and different versions are given by the witnesses as to the number of persons involved and as to the scene of occurrence also. hence, it cannot be stated that on the evidence available before the lower court, the prosecution can sustain a conviction.
13. In Secretary @ Mara Naicker & 7 Ors. v. State by Sub Inspector of Police reported in 2005 (23) LW. (Crl) 779, the same Division Bench has held as follows:
17. Yet another circumstance, which would go against the prosecution case is that Ranga Naicker, who was admitted at 08.15 p., has made a statement to P.W. 9, the Doctor that 10 known persons attacked him, while P.W. 1 would say that they were attacked by 20 known and unknown persons and the other injured witnesses have given statements to the Doctor coming out with different versions as to how many persons participated in the crime, and thus, it would be doubtful whether such an occurrence would have taken place. Therefore, it would be unsafe to rely on the evidence of the prosecution witnesses to sustain the conviction.
14. In Sundar and 3 Ors. v. State, rep. by Inspector of Police, Vellore reported in 2007 (2) LW (Crl) 794, a Division Bench of this Court has held as follows:
12. One more fact strengthens our suspicion in the above area, namely, after giving in Ex. P.1 as to who the assailants are, namely, the assailants on P.W. 1 and the deceased, almost twelve hours later, P.W. 1 told P.W. 2 that he received injuries at the hands of two known persons present in the midst of six or seven persons. So this is definitely an earlier statement of P.W. 1 to the doctor as said by the Supreme Court in the judgment reported in AIR 1982 SC 839. P.W. 1 was confronted with this earlier statement and he denied having given such a statement to P.W. 2. P.W. 2 had given evidence stating that the contents of Ex. p.2 are as furnished by P.W. 1. Therefore, to sum up, we conclude that P.W. 1 was not knowing at all who the assailants are and that is why all the infirmities, as pointed out above, had occurred.
15. The ratio decidendi arrived at in the above said decisions squarely applies to the facts of this case also. Though the earlier versions before the Doctor it is alleged that 12 known male persons attacked the deceased, but in the FIR it has been stated that only 5 person attacked the deceased. The overt act of A.1 is totally different from the complaint than the narration to the DoctoRs. The weapons used by A.4 and A.5 are not mentioned in Exs.P.2 and P.3 Accident RegisteRs.
16. Further, though the deceased was alive for 7 days, no attempt has been made to record a dying declaration from him through a Judicial Magistrate. The FIR though alleged to have been registered on 2.7.1998 at 6.00 a.m., has reached the Court only on 10.7.199 one day later to the death of the deceased. Therefore the claim of P.W. 9, Head Constable that he sent the FIR on the same day is also false.
17. In the above circumstances, the infirmities of the prosecution case are as such that the prosecution could not explain its case and therefore, the benefit must go to the accused and hence the accused are entitled for acquittal of all the charges and the appeal is allowed. The fine amount, if any, paid by them shall be refunded.