Vethamuthu Anthony Raj vs The State on 22 December, 2011

[Cites 13, Cited by 0]

Madras High Court

Vethamuthu Anthony Raj vs The State on 22 December, 2011

The appellants in Crl.A.No.51 of 2011 are the accused Nos.1 and 2 and the appellants in Cr.A.(MD).No.26 of 2011 are the accused Nos.4 and 6 in S.C.No.34 of 2008 on the file of the Principal Sessions Judge, Virudhunagar District at Srivilliputhur. Totally, there were seven accused. The learned Sessions Judge by judgment, dated 12.01.2011 acquitted the accused 3,5 and 7 of all charges. The fourth accused has been convicted under Section 302 IPC and sentenced to undergo imprisonment for life and under section 506(ii) IPC to undergo rigorous imprisonment for three years and to pay a fine of Rs.3,000/- (no default sentence). The learned Sessions Judge convicted the appellants 1, 2 and 6 under Section 324 IPC and sentenced them to pay a fine of Rs.3,000/-, in default, to undergo rigorous imprisonment for six months and for the offence under Section 506(ii) IPC to undergo rigorous imprisonment for three years and to pay a fine of Rs.1,000/- each, in default, to undergo rigorous imprisonment for three months. Challenging the said conviction and sentence, the appellants have come up with these criminal appeals.

2. The prosecution witness No.3, Mr.V.Paulsamy, feeling aggrieved by the acquittal of the accused 3, 5 and 7, has come up with Cr.R.C.No.415 of 2011. Since these two appeals and criminal revision case arise out of one and the same judgment, we have heard them together and we disposed of by means of this common judgment.

3. The case of the prosecution in brief is as follows:

The deceased in this case was one Gopalraj. He was a resident of Panthalkudi village. He belonged to Reddiyar community. P.W.1 is his cousin. All these accused (1 to 7) belong to Christian religion and they also belong to the same village. On an earlier occasion, according to the prosecution, these accused had spoken ill of the community of the prosecution party. On an yet another occasion, it is alleged that the accused party eve teased the woman folk belonging to the prosecution party. Both the incidents were brought to the notice of the deceased Gopalraj. This is stated to be the motive for the occurrence.

3.1. On 19.09.2007, at 11 p.m., P.Ws.1 to 3 and the deceased, were returning from bazaar to their place of residence. When they were passing through Kaliamman Koil street, the accused Nos.4 to 6 were sitting near a church. The deceased Gopalraj went towards them and questioned them about the above two incidents. The deceased also attacked the accused Nos.4 and 6 with hands. Accused 4 and 6 raised alarm. Immediately, the other accused came running from the Church. The first accused had a suri kathi in his hand; the third accused had a wooden log; the fifth accused had suri knife and wooden log;

the seventh accused had thoratti kambu and suri knife. On seeing them, the deceased started to go. P.Ws.1 to 3 also started moving with the deceased. At that time, suddenly, the first accused Sekar attacked the deceased with suri knife on the right side of his chest. The second accused attacked the deceased on his head, on both sides, with aruval. The third accused attacked the deceased on his back of chest with wooden log. The deceased fell down. After that, the fourth accused snatched the thorattikambu from the 7th accused and attacked on the abdomen of the deceased. Due to the injuries on the abdomen, the intestine came out. The fifth accused attacked the deceased on his right leg with wooden log. The sixth accused snatched suri kathi from A7 and attacked the deceased on the left eye brow. The seventh accused attacked the deceased with hands on his face. This rendered the deceased to fall unconscious in a pool of blood. The accused brandished the weapon against P.Ws.1 to 3 and flood away from the scene of occurrence.

3.2. It is the further case of the prosecution that the first accused attacked his own men, namely, the accused 4 and 6. The other accused also attacked these two accused A4 and A6 with wooden logs and caused injuries. Then, the first accused directed A4 and A6 also to go to the police station and to prefer a complaint falsely against the prosecution party. P.Ws.1 to 3 raised alarm, which attracted the villagers. Thereafter, the deceased was taken in an Auto to Aruppukottai Government Hospital. P.Ws.1 to 3 also went there. At 11.45 p.m., on 19.09.2007, P.W.9, Dr.Sakthivel examined the deceased and found that he was already dead. After declaring him dead, he transmitted the body to the mortuary. On his examination, he found the following injuries on the body of the deceased:

"1.A penetrating injury of 3" x 2" size x 1 +" depth with small intestines expelled out along with mesentary with bleeding in the middle of lower abdomen.

2.A laceration of 1 cm x + cm x bone depth on right lower chest. 3.A laceration of 2 + cm x + cm x bone depth on right lower chest. 4.A laceration of 2 + cm x + cm x bone depth on left parietal scalp."

3.3. On 19.09.2007, at 11.30 p.m., the accused 4 and 6 went to the Panthalkudi Police station. P.W.12, the then Head Constable attached to Panthalkudi Police Station, forwarded them to the Government Hospital at Aruppukottai along with medical memos for treatment for the injuries found on them. On the same day, at 12.15 p.m., P.W.12 received a message from Aruppukottai Police Station about the death of the deceased. Immediately, he proceeded to the Government Hospital at Aruppukottai, where he obtained a complaint from P.W.1 under Ex.P13. On returning to the police station, at 2.00 a.m., he registered a case in Crime No.121 of 2007 under Section 147, 148, 341 and 302 IPC against these accused. Ex.P17 is the First Information Report. He forwarded the First Information Report and the complaint to the Court and then handed over the case diary to P.W.14 for investigation.

3.4. Taking up the case for investigation, P.W.14, the then Inspector of Police, attached to Aruppukottai Taluk Police Station proceeded to the place of occurrence at 2.45 a.m. and prepared an observation mahazar in the presence of P.W.7 and another witness under Ex.P2. He recovered bloodstained earth and sample earth from the place of occurrence (M.Os.5 and 6) under Ex.P3 Mahazar. In the presence of the same witnesses, he prepared a rough sketch showing the place of occurrence under Ex.P19. Then, examined P.Ws. 1to 3 and few more witnesses and recorded their statements. He conducted inquest on the body of the deceased and prepared Ex.P.20-inquest report. Then, he forwarded the body of the deceased for postmortem. P.W.10, Doctor Sampath, conducted inquest on the body of the deceased at 11.30 a.m. on 20.09.2007. During autopsy, he found the following injuries:

External injuries: 1.Lacerated wound in the right parietal region 7x2x2 cm bone depth.

2.A lacerated wound in the left parietal region 7x2x2 cm bone depth.

3.Lacerated wound just lateral to the left eyebrow 1x1x1 cm

4.A stab wound in the right side of chest + cm radius 5 cm depth just lateral to the xiphoid process in the 7th I.C.S.

5.A lacerated wound in the right inguinal region 8x3x4 cm entering into the pelvic cavity. Small bowel prolapsed through the wound.

Internal examinations : 1. Abdomen-uniform, peritoneal cavity filled with fluid blood. Thorax:there was a hole in the 6th I.C.S. Just lateral to the sternum corresponding to the external stab wound in the chest. Heart 300 gms chambers empty. Lungs - left 60 gms pale. Right 500 gms pale. No lung injury. Hyoid bone intact. Stomach-empty. Liver 1500 gms-pale - no injury. Spleen 150 gms pale. Kidney 160 gms pale. Intestines distended with gas-no-injury-bladder 100 ml of urine present. Major vessels in the inguinal region were cut. Head, skull intact. Membranes intact. Brain pale 1100 gms. Spinal column intact. Finally, he gave an opinion that the deceased would appear to have died of hemorrhage and shock due to injury to major vessels in the right inguinal region 12-18 hours prior to autopsy. Ex.P14 is the postmortem certificate.

3.5. Continuing the investigation, P.W.14, collected the cloth found on the body of the deceased and forwarded the same to the Court. Then, he examined few more witnesses and recorded their statements. On 22.09.2007 at 5.00 a.m., he arrested the accused Nos.4 and 6 at Panthalkudi Muthalamman Temple in the presence of P.W.5 and another witness. On such arrest, the sixth accused Maria Sabariraj, gave a voluntary confession. In the said confession, he had disclosed that he had hidden a suri knife in the periya kanmai at Mettupatti. Ex.P6 is the said disclosure statement. As per the said disclosure statement, he took the police and witnesses to the said place and produced a suri knife (M.O.7) from the place of concealment. P.W.14 recovered the same under Ex.P.7 mahazar. The accused No.4 Vethamuthu Anthony Raj also gave a voluntary confession. In the said confession, he had disclosed that he had hidden a thoratti kambu at a place behind Mettupatti R.C.Church. In pursuance of the said disclosure statement, he took the police and the witnesses to the said place and produced M.O.2 thorattikambu. P.W.14 recovered the same under Ex.P5 mahazar. On the same day, at 9 a.m., P.W.14 arrested the 7th accused Innasimuthu at Panthalkudi Ramco Stone Quarry site in the presence of the same witnesses. Then, he returned to the police station with the accused and the properties seized. He forwarded the accused for judicial remand and sent the material objects to the Court.

3.6. The first accused Sekar and the second accused Sebastin surrendered before the learned Judicial Magistrate, Kumbakonam on 24.09.2007. On 05.04.2007, P.W.14 got them into his custody in pursuance of an order obtained from the jurisdictional Magistrate. At the police station, when the first accused was examined, he gave a voluntary confession. In the same, he had disclosed that he had hidden a suri knife near a compound wall of R.C. Church at Mettupatti. Ex.P8 is the said statement. In pursuance of the same, he took the police and the witnesses to the said place and produced M.O.8 suri knife. P.W.14 recovered the same under Ex.P9 mahazar in the presence of the very same witnesses. The second accused Sebastin also gave a voluntary confession. In the said confession, he had disclosed that he had hidden an aruval just behind the compound wall of the church at Panthalkudi. In pursuance of the same, he took the police and witnesses to the said place and produced M.O.1 aruval. P.W.14 recovered the same under Ex.P11 mahazar. Ex.P10 is the disclosure statement. Thereafter, he forwarded the accused to judicial remand. He also forwarded the material objects to the Court. Yet another accused Arockiasamy (A5) surrendered before the learned Judicial Magistrate at Manamadurai. On 12.10.2007, P.W.14 got him into his custody in pursuance of the order of the jurisdictional Magistrate. During interrogation, he also gave a voluntary confession. Similarly, the 7th accused Innasimuthu was arrested on 22.09.2007 and he also gave a voluntary confession. But no disclosure was made out of these two accused. Then, he examined the Doctor, who conducted autopsy, collected postmortem certificate and recorded his statement.

3.7. Thereafter, P.W.14 was transferred and the investigation was taken by P.W.15. He collected the chemical analysis report and other records. Finally, he laid the charge sheet against all the seven accused on 24.12.2007, under Sections 147, 148, 341, 302 read with Section 149 IPC.

4. Based on the above materials, the trial Court framed as many as four charges. The first charge is against all the seven accused under Section 148 IPC. The second charge is against all the seven accused under Section 341 IPC. The third charge is against all the accused under Section 302 read with 149 IPC and the fourth charge is against all the accused under Section 506(ii) IPC.

5. When the accused were questioned in respect of the charges, they pleaded innocence. Therefore, they were put on trial. During the trial, on the side of the prosecution, as many as 15 witnesses were examined and 20 documents were exhibited besides 8 material objects. On the side of the defence, one document was marked as Ex.D1. When the accused were questioned in respect of the above incriminating materials under Section 313 Cr.P.C., they denied the same as false.

6. Of the 15 witnesses examined, P.Ws.1 to 3 are the eye witnesses to the occurrence. They have vividly spoken about the overt acts of each accused. P.W.1 further has spoken to about the complaint preferred by him. P.W.5 has spoken to about the arrest of some of the accused and the consequential disclosure of material objects. P.Ws.9 and 10 are the doctors, who have spoken to about the injuries and the cause of death. The others are official witnesses.

7. Having considered the above materials, the trial Court found the accused 3,5 and 7 not guilty and accordingly acquitted them. The trial Court convicted the accused 1,2,4 and 6 alone under various provisions of IPC and punished them accordingly, as detailed in the first paragraph of this judgment. That is how, these appellants are before this Court and P.W.3 is before this Court with the revision challenging the acquittal of A3,A5 and A7.

8. We have heard the learned counsel for the appellants, the learned counsel for the revision petitioner and the learned Additional Public Prosecutor for the State. We have also perused the records carefully.

9. As we have already narrated, from the evidences of P.Ws.1 to 3, it could be culled out that there were two groups in the village opposing each other, belonging to different communities. The accused party belongs to Christian religion, whereas, the prosecution party belongs to Reddiyar community of Hindu Religion. The motive between the two groups has not been seriously disputed by the accused. The deceased was the leader of the prosecution party. The said fact as spoken to by P.W.1 has not been disputed by the defence.

10. Now, according to the evidence of P.W.1, on the day of occurrence, the accused 4 to 6 were sitting near the Church. P.Ws.1 to 3 and the deceased were proceeding on the Church road. On seeing A4 and A6 sitting there, it was only the deceased, who went upto them and questioning the authority of the accused to speak ill of the woman folk of the community of the prosecution party, the deceased attacked A4 and A6. Quite naturally, as has been spoken to by P.Ws1 to 3, they raised alarm. Attracted by the said alarm, it is stated that the other accused came from the church with weapons and all of them attacked the deceased party, is the prosecution case. But, the case of the accused is that the prosecution party came armed with weapons and attacked A4 and A6 with deadly weapons causing injuries. In the very same occurrence, according to them, the deceased also sustained injury. Therefore, according to the appellants, the deceased was the aggressor and not the accused party.

11. P.W.12 has admitted that while he was on duty at the police station, the accused 4 and 6 came to the police station with injuries. It was 11.30 p.m. He has further admitted that he issued police memo and forwarded them to the hospital for treatment. Thus, it has been clearly admitted by the prosecution that A4 and A6 have sustained injuries in the very same occurrence.

12. The learned counsel for the appellants would submit that when A4 and A6 appeared before P.W.12, they preferred a complaint in respect of the injuries sustained by them and the said complaint has been completely suppressed by the prosecution and there was no investigation at all into the said allegations made by A4 and A6. The learned counsel would submit that the prosecution has not come forward with clean hands. He would further submit that there was no investigation done in respect of the injuries sustained by the accused.

13. But, the learned Additional Public Prosecutor would submit that P.Ws.1 to 3 have clearly explained the injuries sustained by A4 and A6, inasmuch as they have stated that the rest of the accused attacked A4 and A6 and caused injuries, with a view to make it appear that as though there was a clash, in which, the accused 4 and 6 were attacked by the prosecution party. The learned Additional Public Prosecutor would therefore submit that since the injuries sustained by the accused have been explained away, the non registration of the case on the complaint of the accused 4 and 6 and the non production of the wound certificates of these two accused and the non investigation of the counter case, have not affected the case of the prosecution in any manner. The learned counsel for the revision petitioner would also submit the same argument.

14. In our considered opinion, there is a very serious flaw in the case of the prosecution. It is needless to point out that under 588(A) of the Police Standing Orders, it is the duty cast upon the investigating officer to investigate into the complaint in the counter case as well, to gather materials including the wound certificates of the accused and to produce them all in the Court. It is a well settled legal position that as and when there is a counter complaint preferred by an accused in respect of the very same occurrence, to be fair and impartial on his part, the investigating officer should register the said complaint, investigate into the allegations made therein and then to submit a report either accepting or rejecting the allegations made by the accused party. But, in this case, P.W.12 has completely suppressed the complaint given by A4 and A6, though he had chosen to forward these accused to the hospital for treatment. P.W.14 on his part, has not collected the medical records pertaining to A4 and A6 and produced the same before the Court. As a result, this Court is not in a position to know the nature of the injuries sustained by A4 and A6. Apart from that, he has also not made any investigation into the injury sustained by the accused 4 and 6. In our considered opinion, this will go a wrong way to show that the Investigating Officer has failed to investigate into the counter case and to come out with the truth of the occurrence. Thus, in our considered opinion, the true version is not before the Court.

15. The contention of the learned Additional Public Prosecutor that the injuries sustained by the accused Nos.4 and 6 have been explained away by P.Ws.1 to 3 cannot be countenanced at all. It is too hard to believe that the rest of the accused attacked A4 and A6, caused injuries on them with a view to make out a false case against the prosecution. Whether this version spoken to by P.Ws.1 to 3 is true, or whether the version of the accused party is true, is a matter for investigation. In the absence of the investigation into this aspect, it will be too difficult to accept the above two explanations offered by P.Ws.1 to

3. In this respect, we may make useful reference to a judgment of the Hon'ble Supreme Court in Lakshmi Singh v. State of Bihar, reported in AIR 1976 SC: Page 2263, wherein, while dealing with identical facts, the Hon'ble Supreme Court held as under:-

"It seems to us 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 altercation is a very important circumstance from which the Court can draw the following inferences:

(1)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.

The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one."

16. Applying the above settled proposition of law to the facts of the case, if we analyse, it becomes crystal clear that the origin of the occurrence has not been proved by the prosecution; the prosecution has not come forward with clean hands and therefore, it is very difficult to sustain the conviction. From the admission made by P.Ws.1 to 3, it is very obvious that it was only the deceased, who went upto A4 and A6, who were sitting casually and attacked them first. Thus, we find substance in the contention of the counsel for the accused that the aggressor was the deceased. But, this aspect has not been properly investigated into by the police.

17. Coming to the recovery of material objects, in our considered opinion, they lose importance because of the fact that we are not prepared to believe the case of the prosecution projected through P.Ws.1 to 3. Since the prosecution has not come forward with true version of the occurrence, we hold that the prosecution has not proved the case against the accused beyond reasonable doubt. In such view of the matter, we are inclined to acquit these appellants as well. We are also inclined to dismiss the revision filed by P.W.3.

18. In the result, the criminal appeals are allowed and the accused 1,2,4 and 6 are acquitted of all charges. The Criminal Revision Petition is dismissed and the acquittal of the accused 3,5 and 7 is confirmed. The accused 1, 2, 4 and 6 are directed to be set at liberty forthwith, if their detention is not required in connection with any other case. Fine amount, if any, paid shall be refunded to the accused.

NB: The learned counsel, Mr.K.P.Vijayakumar, shall be eligible for honorarium, which shall be paid by State Legal Services Authority.

RR To

1.The Principal Sessions Judge Virudhunagar at Srivilliputhur

2.The Public Prosecutor, Madurai Bench of Madras High Court, Madurai.

3.The Legal Services Authority, Madurai Bench of Madras High Court, Madurai.

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