Madras High Court
Gobi vs State Rep. By on 24 July, 2012
Author: R. Mala
Bench: R. Mala
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 24.07.2012
CORAM:
THE HONOURABLE MS. JUSTICE R. MALA
Criminal Appeal No.316 of 2004
Gobi .. Appellant/A1
VS.
State rep. by
Inspector of Police
Thitacheri Police station
Nagapattinam District. .. Respondent/Complainant
Prayer: Criminal Appeal filed under Section 374(1) of Cr.P.C., against the judgment of conviction and sentence dated 10.12.2003, made in S.C.No.182 of 2003 on the file of the Assistant Sessions Court-cum-Chief Judicial Magistrate's Court, Nagapattinam.
For Appellant : Mr.N.Duraiswamy
For Respondent : Mr.C.Emalias
Government Advocate (crl.side)
J U D G M E N T
The criminal appeal arises out of the judgment of conviction and sentence, dated 10.12.2003, made in S.C.No.182 of 2003, on the file of the Assistant Sessions Court-cum-Chief Judicial Magistrate's Court, Nagapattinam, whereby the first accused was convicted for the offence under Section 307 IPC and sentenced to undergo eight years rigorous imprisonment and imposed a fine of Rs.1,000/- in default in payment to undergo three months rigorous imprisonment.
2.The respondent has filed a charge sheet against the accused stating that on 4.10.2002, at 7.00 p.m., the accused 1 and 2, having intention to murder Vellaiammal, who is residing at Paramanallur Mariamman Koil street, were entered into the house of Vellaimmal and A2 caught hold her and A1 assaulted on her head, back, chest with Aruval/M.O.1 and thereby A1 committed offence under Sections 326 and 307 IPC and A2 committed offence under Sections 342, 307 r/w 34 IPC.
3.The case of the prosecution is as follows:
(i) P.W.1/Vellaimmal is residing with her husband and children at Paramanallur. P.W.2/Vijayalakshmi is her daughter. On the fateful day (i.e.) on 4.10.2002, P.W.1, who was an Agricultural Coolie, had gone to her work. When P.W.2 dried paddy in front of her house, at that time, daughter of A1 namely, Priyardharshini, thrown paddy here and there. So P.W.2 took the child and handed over to her mother Kasthuri, who is A1's wife. Thereafter, Kasthuri came to P.W.2's house and abused and beat her. When P.W.1 returned to her house at 7.00 p.m., it was informed by P.W.2. Therefore, P.W.1 asked Kasthuri regarding the incident, at that time, A2, who is the brother of A1, caught hold the hands of P.W.1 and A1 assaulted P.W.1 on her front head, left shoulder, left side back, hip and left the place. On seeing the same, P.W.2 made an alarm and P.W.3/Mathi @ Thanikodi, who is the daughter-in-law of P.W.1, rushed to the place and took her to Nagapattinam Government Hospital. When P.W.4/Kasi after hearing the incident, went to the place of occurrence, he came to know that P.W.1 was taken to hospital. P.W.7/Selvam, who came to know the same, rushed to the place of occurrence and saw P.W.1, who sustained injuries.
(ii) P.W.8/Dr.Rajakumarasamy, treated P.W.1 at 10.00 p.m., gave Ex.P8 wound certificate, in which, he stated that P.W.1 said to have allegedly assaulted by few persons with Aruval on 4.10.2002, at 8.00 p.m., at Paramanallur and the following external injuries were mentioned.
Laceration wound in the left side chest near the clavicle bone, 1 cm X = cm X < cm.
Another laceration wound in the right side back of chest below in scapula, 1 cm X = cm and 1/2 cm.
Laceration wound in the left side of the head of the scapula, 3/4 cm X 1/4 cm X < cm.
(iii) On 5.10.2002, at 6.00 a.m., P.W.9/Marimuthu, Sub-Inspector of Police in Thittacheri police station, received intimation from O.P., Nagapattinam Government Hospital, through V.H. Message and rushed to the Hospital. He examined P.W.1, who was treated as an in-patient and recorded her statement and after obtaining complaint Ex.P1 from P.W.1, he returned to police station. At 8.00 a.m., on the basis of her complaint, he registered a case in Crime No.442/2002 under Sections 342 and 307 IPC and prepared a printed F.I.R. Ex.P9. He sent Ex.P9 to the higher officials and the concerned Court.
(iv) P.W.9 took up the matter for investigation, on the instruction of D.S.P., since Inspector of Nagoor police station was on duty in outside. He went to the place of occurrence at 8.30 a.m. and prepared Ex.P10 observation mahazar at 10.00 a.m. in the presence of P.W.5/Murugavel and P.W.6/Selvaraj and their signatures were marked as Exs.P2 to P7. He drew Ex.P11 rough sketch. Then he examined the witnesses and recorded their statements. When P.W.9 made a search at 1.00 p.m., he arrested the accused at Seshamulai Bus stop. In the presence of the witnesses P.W.5 and P.W.6, he recorded the confession of A1 and the admitted portion was marked as Ex.P12. In pursuance of the same, P.W.9 seized M.O.1/aruval under Ex.P13/seizure mahazar in the presence of the aforesaid witnesses. Thereafter, he sent the accused to judicial custody along with seized material object and handed over the case diary to Inspector Chandrasekaran, for further investigation. After the investigation done by Chandrasekaran, Inspector Sachidanandam took up the matter for further investigation and examined P.W.8/Doctor and obtained Ex.P8 wound certificate of P.W.1. After completing investigation, he filed a charge sheet against the accused.
4.Learned trial Judge, after following the procedure, framed necessary charges. Since the accused pleaded not guilty, the trial Court examined P.W.1 to P.W.9 and marked Exs.P1 to P13 and M.O.1. The trial Court placed the incriminating evidence before the accused, the accused denied the same. On their side, no oral evidence was examined and documentary evidence was marked. The trial Court after considering oral and documentary evidence, acquitted A2 from the charges levelled against him under sections 450 and 307 r/w 34 IPC and acquitted A1 under Section 450 IPC and convicted A1 for the offence under Section 307 IPC and sentenced him as stated above.
5.Challenging the conviction and sentence, Mr.N.Duraiswamy, learned counsel appearing for the appellant/A1 submitted that investigation has been done by P.W.9, who is the Sub-Inspector of Thittacheri police station and there are two complaints. the first complaint was not placed before the Court, hence, F.I.R itself is doubtful and it vitiates the entire case of prosecution. It is further submitted that except the evidence of P.W.1 and P.W.2, other witnesses viz., P.W.3 and P.W.4 are not an eye-witness. Therefore, he prayed for acquittal of A1/appellant.
6.Resisting the same, Mr.C.Emalias, learned Government Advocate (Crl. side) submitted that it is true, the investigation has been done by the Sub-Inspector of Police and subsequently, it was done by Inspectors Chandrasekaran and Sachidanandam and Sachidanandam alone was filed the charge sheet against the accused. He further submitted that as per Sections 156 and 157 of Cr.P.C., Thittacheri police station was headed by Station House Officer, who is Sub-Inspector and the Station House Officer/Sub-Inspector is not prohibited to investigate the matter. Non-examination of Investigating Officers viz., Chandrasekaran and Sachidanandam are not fatal to the case of the prosecution. To substantiate the same, he relied upon the decisions reported in (i) 1996 Cri.L.J. 1653 (Behari Prasad etc. v. State of Bihar), (ii) 2000 Cri.L.J. 2466 (Bahadur Naik v. State of Bihar) and (iii) 2001 SCC (Cri) 1546 (Ram Gulam chaudhary and others v. State of Bihar). Admittedly, P.W.1 and P.W.2 are eye-witnesses. Moreover, the evidence of P.W.1, who was an injured eye-witness, has clearly proved the guilt of the accused. Hence, he prayed for dismissal of the appeal.
7.Considered the rival submissions made on both sides and the materials available on record.
8.Now this Court has to decide whether the investigation is valid under law? As per the evidence of P.W.9/Marimuthu, who was the Sub-Inspector of Police in Thittacheri police station, after receiving intimation through V.H. Message from Nagapattinam Government Hospital, rushed to the hospital at 6.00 a.m., on 5.10.2002 and recorded P.W.1's complaint Ex.P1. Then he returned to police station and registered a case in Crime No.442 of 2002 under Sections 342 and 307 IPC, at 8.00 a.m. He went to the place of occurrence at 8.30 a.m. and prepared Ex.P10 observation mahazar at 10.00 a.m. He arrested the accused at 1.00 p.m. at Seshamulai bus stop on the same day and recorded A1's confession in the presence of P.W.5 and P.W.6 and the admitted portion was marked as Ex.P12. In pursuance of the same, he seized M.O.1/aruval under Ex.P13 seizure mahazar. Thereafter, one Chandrasekaran, Inspector of Police, took up the matter for further investigation.
9.At this juncture, it is appropriate to consider the evidence of P.W.9. P.W.9 in his chief-examination, fairly conceded that Circle Inspector of Nagoor is on duty in connection with the official work and as per the direction of his superior/Deputy Superintendent of Police, he investigated the matter. In such circumstances, I am of the view, the argument advanced by the learned counsel for the appellant/A1 that the investigation done by the Sub-Inspector of Police is vitiated, does not merit acceptance. Therefore, I am of the opinion, investigation done by P.W.9 is valid under law.
10.Now this Court has to decide whether the evidence of P.W.1/mother and P.W.2/daughter is admissible in evidence? While considering the evidence of P.W.1 and P.W.2, they have stated that there is no enmity between them and the accused for giving false complaint. Furthermore, it is pertinent to note that the occurrence had taken place for trivial reason that the child of A1 viz., Priyadarshini wasted paddy throwing here and there, which was dried by P.W.2 in front of her house. So P.W.2 handed over the child to A1's wife Kasthuri, at that time, Kasthuri abused and assaulted her. This factum has been intimated by P.W.2 to P.W.1 as soon as she returned from her coolie work at 7.00 p.m. She went to A1's house and made an enquiry regarding the same and while doing so, she was assaulted by A1 and A2. In such circumstances, I do not find any reason for discarding the evidence of P.W.1 and P.W.2, since their evidence are natural, cogent and trustworthy and hence, it is reliable.
11.At the time of argument, learned counsel for the appellant contended that there are two complaints. While perusing the evidence of P.W.1, there is no evidence to show that there are two complaints. P.W.1 in her chief-examination, stated that immediately after the incident, she gave a complaint before the police station, which was marked as Ex.P1. In her cross-examination, she stated that while she was taking treatment at hospital, Sub-Inspector was examined and received complaint from her.
12.As soon as P.W.1 was taken to Nagapattinam Government Hospital, P.W.8/Dr.Rajakumarasamy treated her at 10.00 p.m. and gave Ex.P8 wound certificate, in which, it was mentioned that she was assaulted by few persons with aruval on 4.10.2002, at 8.00 p.m., at Paramanallur and at that time, she was conscious. Then he sent intimation to Thittacheri police station.
13.P.W.9/Sub-Inspector, in his chief-examination stated that he received V.H. message from O.P., Government Hospital and went to the hospital and received complaint from P.W.1. It shows that after P.W.1 admitted in the hospital, P.W.8/Doctor gave intimation to the concerned police station through O.P. and P.W.9 rushed to the hospital and recorded the statement of P.W.1. In my opinion, the argument advanced by the learned counsel for the appellant that as per the version of P.W.1, there are two complaints, which vitiated the case of prosecution, does not hold good. Because, P.W.1, an illiterate lady, who was doing agricultural coolie, hailing from rustic village. Hence, some weightage must be given to her evidence, even P.W.1 stated in her chief-examination that she gone to police station and gave complaint and in her cross-examination, when she was at hospital, Sub-Inspector was recorded her statement and received complaint and obtained her left thumb impression. In such circumstances, the argument advanced by the learned counsel for the appellant that there are two complaints, does not merit acceptance.
14.Learned counsel for the appellant further submitted that in Ex.P8 wound certificate, it was stated that P.W.1 was assaulted by few persons and she has not mentioned the persons. Whereas in the complaint, she mentioned that as to how the occurrence had taken place and by whom. Admittedly, the case has been registered at 8.00 a.m. and F.I.R. has been reached the Court at 3.15 p.m. on 5.10.2002.
15.It is true, P.W.5/Murugavel and P.W.6/Selvaraj, who are attestors of confession and Section 27 recovery, were turned hostile. Except ipse dixit of P.W.9, no other corroborating evidence are available to prove recording of confession and seizure of material objects. Furthermore, Aruval/M.O.1 was not sent for chemical analysis as to ascertain whether it contains any human blood stain or not.
16.It is true, P.W.5 and P.W.6, who are the attestors of confession and seizure of M.O.1/aruval under Section 27 of Indian Evidence Act, were turned hostile. Since the case is based on eye-witness, this Court is of the view that the evidence of P.W.1 and P.W.2 is trustworthy. Hence, I am of the opinion, merely because P.W.5 and P.W.6 were turned hostile, the conviction is not liable to be set aside. As already stated that there was no previous enmity between the accused and P.W.1 and the evidence of P.W.1 and P.W.2 is trustworthy. Considering their evidence, it would clearly prove that appellant alone had caused injury on her. P.W.8/Dr.Rajakumarasamy opined that she sustained three injuries, one is a fracture on clavicle bone. Hence the trial Court is convicted A1 for the offence under Section 307 IPC for attempting murder by using deadly weapon.
17.Learned counsel for the appellant submitted that the injuries sustained by P.W.1 are only lacerated injuries and there was no incised or cut injury. As per the case of prosecution, the accused armed with M.O.1/aruval and assaulted P.W.1. The injuries mentioned in Ex.P8 are all lacerated injuries and one injury is a fracture on her clavicle bone. When P.W.8 was in witness box, he stated that injury No.3 was grievous in nature and other two injuries were simple in nature. In his cross-examination, he stated that three injuries are separate and independent injuries and they were caused by assaulting three times and there is a possibility of using aruval with sharp edge for causing incised or lacerated injuries. Further he stated that the injuries sustained by P.W.1 were caused by an handle of aruval and also caused by blunt edge weapon. So it is appropriate to incorporate cross-examination of P.W.8/ Dr.Rajakumarasamy, which is extracted hereunder:
VERNACULAR (TAMIL) PORTION DELETED So I am of the view, injuries are caused by the accused as mentioned by P.W.8, P.W.1 and P.W.2.
18.Now this Court has to decide whether non-examination of investigating officers viz., Chandrasekaran and Sachidanandam are fatal to the case of the prosecution. At this juncture, it is appropriate to incorporate the following decisions relied upon by the learned Government Advocate (Crl. Side).
(i) 1996 Cri.L.J. 1653 (Behari Prasad etc. v. State of Bihar) in para-13, it reads as follows:
"13. .. .. Mr.Sushil Kumar has also relied on a decision of the Mysore High Court in Hirianna Shetty Vs. The State of Mysore (1972 (1) Mysore Law Journal 50). It has been held in the said decision that the examination of the Investigating Officer is necessary in order to bring on record the contradictions in the statements of witnesses and such a right is a valuable right of the accused. Non-examination of the Investigating Officer is a serious infirmity in so far as it deprives the accused of an opportunity to show that witnesses were not reliable by proving contradictions in the earlier statements. Mr.Sushil Kumar has submitted that the accused in this case, particularly when the witnesses were only partisan witnesses, have suffered serious prejudice on account of being deprived of the opportunity to point out material contradictions in the earlier statements of the witnesses for not examining the Investigating Officer."
Considering the above decision, non-examination of investigating officers is not fatal to the case of the prosecution.
(ii) He relied upon the decision reported in 2000 Cri.L.J. 2466 (Bahadur Naik v. State of Bihar) and submitted that when defence has failed to shake credibility of eye-witnesses or to point out any material contradiction in prosecution case, non-examination of investigating officer is not fatal. In para-2, it reads as follows:
"2.The appellant has not been able to shake the credibility of the eye-witnesses. No material contradiction in the case of the prosecution has been shown to us. Under these facts and circumstances, the non-examination of the Investigating Officer as a witness is of no consequence. It has not been shown what prejudice has been caused to the appellant by such non-examination."
(iii) He would further rely upon the decision reported in 2001 SCC (Cri) 1546 (Ram Gulam chaudhary and others v. State of Bihar) and submitted that where there were several witnesses who had given credible and believable evidence regarding place of occurrence, held, their evidence cannot be discarded merely because the investigating officer had not been examined when in the circumstances of the case the investigating officer could not have given any evidence as to the actual place of occurrence. So non-examination of investigating officer had not caused any prejudice to the accused/appellants. Hence, it is not fatal to the case of prosecution. It is appropriate to incorporate para-25 to 30, which are extracted hereunder:
"25. Mr. Mishra next submitted that the Investigating Officer was not examined in this case. He submitted that this has caused serious prejudice to the accused persons inasmuch as if the Investigating Officer had been examined then the Appellants could have established that the assault had taken place not in the courtyard but had actually taken place on the road. He submitted that the non examination of the Investigating Officer has deprived the Appellants from showing that there was no water in the pit as claimed by P.W. 3.
26. In the case of Ram Dev v. State of U.P. reported in 1995 Supp. (1) SCC 547, this Court has held that it is always desirable for the prosecution to examine the Investigating Officer. However, non examination of the Investigating Officer does not in any way create any dent in the prosecution case much less affect the credibility of the otherwise trustworthy testimony of the eye witnesses.
27. In the case of Behari Prasad v. State of Bihar, this Court has held that for non-examination of the Investigating Officer the prosecution case need not fail. This Court has held that it would not be correct to contend that if the Investigating Officer is not examined the entire case would fall to the ground as the accused were deprived of the opportunity to effectively cross-examine the witnesses and bring out contradictions. It was held that the case of prejudice likely to be suffered must depend upon the facts of each case and no universal strait-jacket formula should be laid down that non-examination of Investigating Officer per se vitiates the criminal trial.
28. In the case of Ambika Prasad v. State (Delhi Admn.), it was held that the criminal trial is meant for doing justice not just to the accused but also to the victim and the society so that law and order is maintained. It was held that a Judge does not preside over the criminal trial merely to see that no innocent man is punished. It was held that a Judge presides over criminal trial also to see that a guilty man does not escape. It was held that both are public duties which the judges has to perform. It was held that it was unfortunate that the Investigating Officer had not stepped into the witness box without any justifiable ground. It was held that this conduct of the Investigating Officer and other hostile witnesses could not be a ground for discarding evidence of P.Ws,5 and 7 whose presence on the spot was established beyond any reasonable doubt. It was held that non-examination of the Investigating Officer could not be a ground for disbelieving eye witnesses.
29. In the case of Bahadur Naik v. State of Bihar , it was held that non-examination of an Investigating Officer was of no consequences when it could not be shown as to what prejudice had been caused to the appellant by such non-examination.
30.In our view, in this case also non-examination of the Investigating Officer has caused no prejudice at all. All that Mr. Mishra could submit was that the examination of the Investigating Officer would have shown that the occurrence had taken place not in the courtyard but outside on the road. The Investigating Officer was not an eye witness. The body had already been removed by the Appellants. The Investigating Officer, therefore, could not have given any evidence as to the actual place of occurrence. There were witnesses who have given credible and believable evidence as to the place of occurrence. Their evidence cannot be discarded merely because the Investigating Officer was not examined. The non-examination of the Investigating Officer has not led to any prejudice to the Appellants. We, therefore, see no substance in this submission."
Considering the above decisions along with facts of the present case, P.W.9, who was the Sub-Inspector of Police, recorded complaint from P.W.1 and registered a case. As per the instruction of his higher official viz., Deputy Superintendent of Police, he took up the matter for investigation and after examining the witnesses, he arrested the accused and recorded their statements and in pursuance of the same, he seized M.O.1/aruval. In my opinion, the investigation was completed by P.W.9. In such circumstances, non-examination of Inspectors namely, Chandrasekaran and Sachidanandam, were not fatal to the case of the prosecution.
19.To sum up, the conclusions are as follows:
(i) No two complaints.
(ii)There is no enmity between P.W.1 and the accused/appellant.
(iii)While P.W.1 taking treatment at Nagapattinam Government Hospital, P.W.9 registered a case on the basis of her statement. Moreover, her evidence was corroborated by the evidence of P.W.2. Hence, there is no reason for discarding the evidence of P.W.1 and P.W.2.
(iv)P.W.8/Dr.Rajakumarasamy, in his evidence stated that injury No.3 was grievous in nature. The trial Court has correctly held that P.W.1 sustained three injuries, one is grievous in nature and it was caused by A1.
20.Now this Court has to decide whether the trial Court is correctly held that the appellant is guilty for the offence under Section 307 IPC. As per the evidence of P.W.1 and P.W.2, there is no enmity between P.W.1 and the accused and the occurrence was taken place suddenly. While perusing the evidence of P.W.1, she never stated that the accused with an intention to commit murder assaulted her. In such circumstances, it is appropriate to incorporate the ingredients of Section 307 IPC, which reads as follows:
(i)Accused did some act.
(ii)Such act was done with intention or knowledge.
(iii)Hurt was caused to the victim by the act.
(iv) That such act was done with the intention of causing death; or that it was done with the intention of causing such bodily injury as; (a) the accused knew to be likely to cause death; or (b) was sufficient in the ordinary course of nature to cause death; or that the accused attempted to cause death by doing an act known to him to be so imminently dangerous that it must in all probability cause (a) death; or (b) such bodily injury as is likely to cause death, the accused having no excuse for incurring the risk of causing such death or injury. "
21.Considering the facts and circumstances of the case, it would clearly prove that A1/appellant assaulted P.W.1 on sudden provocation and he has no intention to commit murder. Hence, this Court by invoking Section 222 Cr.P.C., convicted A1 for the offence under Section 326 IPC, instead of Section 307 IPC. Therefore, the appellant/A1 is convicted under Section 326 IPC and sentenced to undergo one year rigorous imprisonment and imposed a fine of Rs.1,000/- in default in payment, to undergo two weeks simple imprisonment.
22.In fine,
(i) Criminal Appeal is partly allowed.
(ii)Conviction and sentence passed by the trial Court under Section 307 IPC is hereby set aside.
(iii)The appellant/A1 is convicted for the offence under Section 326 IPC and sentenced to undergo one year rigorous imprisonment and imposed a fine of Rs.1,000/- in default in payment to undergo two weeks simple imprisonment.
(iv)The fine amount already paid by A1 for the offence under Section 307 IPC is treated as fine.
(v)The bail bond, if executed by A1/appellant shall stand cancelled.
(vi)The trial Court is directed to secure the custody of A1/appellant to undergo the remaining period of sentence, if any.
kj To
1. The Assistant Sessions Court Chief Judicial Magistrate's Court Nagapattinam.
2.Inspector of Police Thitacheri Police station Nagapattinam District.
3.The Public Prosecutor High Court, Madras.
4.The Record Keeper Criminal Section, High Court, Madras