Madras High Court
Rathinam Alias Rathinasamy vs The State on 10 January, 2008
Bench: M.Chockalingam, S.Palanivelu
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 10/01/2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM and THE HONOURABLE MR.JUSTICE S.PALANIVELU Criminal Appeal (MD) No.679 of 1999 1.Rathinam alias Rathinasamy 2.Jeya Raj 3.Sundar alias Jeya Sundar 4.Samuel 5.Manoharan 6.Paul Raj 7.Dharmar 8.Raju 9.Antony 10.Varadaraj 11.Selvaraj 12.Pandi 13.Ulaganathan .. Appellants/ Accused 1 to 7 and 11 to 16 Vs. The State,rep. by the Inspector of Police Taluk Police Station, Aruppukkottai,(Crime No.20/1997) Virudhunagar District. .. Respondent/ Complainant Appeal under Section 374(2) of the Code of Criminal Procedure against the judgment, dated 14.07.1999, of the learned Principal Sessions Judge, Virudhunagar District at Srivilliputtur, in S.C.No.155/1998. !For Appellants ... Mr.V.Gopinath for Mr.S.Ramasamy ^For Respondent ... Mr.C.Daniel Manoharan, Addl. Public Prosecutor. :JUDGMENT
(Judgment of the Court was Delivered by M.CHOCKALINGAM,J) This appeal challenges the judgment of the Principal Sessions Judge, Srivilliputtur, made in Sessions Case No.155/1998, whereby 26 accused stood charged and tried as follows:
Sl.No. Accused No. Charge Charge No.1 3,6,8 to 13, 16, 19, 20,23 and 24 Section 147 IPC Charge No.2 1,2,4,5,7,14,15,17,18,21,22,25& 26 Section 148 IPC Charge No.3 1 to 7 Section 302 IPC Charge No.4 8 to 26 Section 302 read with Section 149 IPC Charge No.5 3 Section 307 IPC Charge No.6 13 and 14 Section 307 IPC Charge No.7 15 and 16 Section 307 IPC Charge No.8 11 and 12 Section 323 IPC On trial, while Accused Nos.8 to 9 and 17 to 26 were found not guilty and acquitted of the charges framed against them, Accused Nos.1 to 7 and Accused Nos.11 to 16 were found guilty, convicted and sentenced to undergo imprisonment as stated under:
Accused No. Finding & Conviction Sentence 1,2,3,4,5,7,14 & 15 Guilty under Sections 148 IPC R.I.for one year and a fine of Rs.1000/- in default S.I.for three months. 6,11 to 13 and 16 Guilty under Section 147 IPC R.I.for six months and a fine of Rs.500/- in default S.I.for one month. 1 to 7 Guilty under Section 302 IPC Life imprisonment and a fine of Rs.1000/- in default S.I.for 3 months. 11 to 16 Guilty under Section 302 read with Section 149 IPC Life imprisonment and a fine of Rs.1000/- in default S.I.for 3 months.
3,14 and 15 Guilty under Section 324 IPC R.I.for six months and a fine of Rs.500/-in default S.I.for one month. 11,12,13 and 16 Guilty under Section 323 IPC R.I.for two months and a fine of Rs.500/-in default S.I.for one month.
Thus the convicted accused have challenged the judgment of the trial court.
2.The short facts necessary for the disposal of this appeal can be stated thus.
(a)P.Ws.1 to 4 are the residents of Aiyanreddiyapatti village within the jurisdiction of the respondent police and they belonged to Naicker Community. Among the accused, accused Nos.8 to 10 belonged to Reddiar Community while all other accused belonged to Harijan Community. In the Panchayat Election held in 1996, one Muniyandi contested and he was supported by Naickers and one Pandiaraj opposed him. The said Pandiaraj was supported by Harijan and Reddiar Community people. In that election, Muniyandi Naicker was elected and hence the two community groups were on inimical terms. After the election, one Subbaiah Naicker put a court-yard in front of his house and this was not liked by P.W.9, Nagappa Naidu.
(b)In a meeting arranged by Harijan Community on 14.01.1997, accused No.2 and others spoke ill of Kattabomman and Thirumalainaicker. Hence on the next day a complaint was given by one Jayachandran stating that he was attacked by persons belong to Naicker Community. On 17.01.1997 also a complaint was given before the police stating that one Jayaseelan was attacked by one Ramasamy and Selvaraj.
(c)On the date of occurrence i.e. on 18.01.1997, at about 7.30 a.m., the deceased Pandiaraj went to collect leaves for goats. At that time, P.Ws.1, 2, 3 and 4 heard that the persons belonged to Harijan Community, armed with aruvals, sticks and other deadly weapons, were chasing the said Pandiaraj and hence they ran towards them. The witnesses went nearby and found all the accused, except accused Nos.8 to 10, armed with weapons, surrounded the deceased and while accused Nos.1 to 7 cut Pandiaraj with aruvals and when P.Ws.1 to 4 questioned the accused, they were criminally intimidated and in that accused No.3 cut P.W.1 on his buttock and on the right fore arm. He also cut with aruval on the right thumb of P.W.2. Accused No.2 also cut on the forehead of P.W.2. Accused Nos.3 and 14 attacked P.W.3 on his right side of the head and Accused No.3 again cut him on his right side of the neck. P.W.4 was attacked by Accused No.11 on the left and right side of his head with stick and accused No.12 beat him with stick on the right thigh. Accused No.15 repeatedly beat one Subbaiah Naicker with hands and accused No.16 beat him on his left cheek.
(d)On hearing the distressing cry, the villagers came and in order to prevent the accused from further attacking the prosecution witnesses, they took stones and pelted on the accused and the accused fled away from the scene of occurrence.
(e)P.W.11, the Sub-Inspector of Police, Aruppukkottai Taluk Police Station, was on bandobust duty at A.Reddiapatti due to communal clashes and recorded the statement given by P.W.1, which is marked as Ex.P-1, and sent the same to Aruppukkottai Taluk Police Station, where P.W.12, Head Constable, who was on duty, on the strength of Ex.P-1 registered a case in Crime No.20/1997 under Sections 147, 148, 302 and 324 IPC. Ex.P-16 is the first information report and the same was despatched to the Court. P.W.12 sent P.Ws.1, 2 and 4 to the hospital for treatment.
(f)P.W.7 is the Doctor who examined P.Ws.1, 2 and 4 and gave treatment to them. Exs.P-7, P-8 and P-9 are the extracts of Accident Register given to them. Ex.P-19 is the Accident Register issued to P.W.3.
(g)P.W.13, the Inspector of Police, on receipt of copy of Ex.P-16 FIR, took up the investigation, proceeded to the scene of occurrence, made an observation and prepared Ex.P-2, the observation mahazar, in the presence of witnesses. He also drew Ex.P-17, the rough sketch. He conducted inquest on the body of the deceased in the presence of witnesses and panchayatdars and Ex.P-18 is the inquest report prepared by him. He sent the body for postmortem through a Constable. He recovered M.O.1, bloodstained earth and M.O2, sample earth, from the scene of occurrence under Ex.P-11 mahazar.
(h)P.W.8, the Doctor attached to Aruppukkottai Government Hospital, conducted postmortem on the body of the deceased Pandiaraj on 18.01.1997 and after completion of postmortem, he gave Ex.P-6, the postmortem certificate, wherein he has opined that the deceased would appear to have died of shock and haemorrhage due to multiple injuries sustained, 6 to 10 hours prior to autopsy. M.Os.5 and 6 are the personal wearing apparels recovered from the body of the deceased.
(i)In continuation of his investigation, P.W.13 arrested accused Nos.8,9 and 11 to 26 at 3.00 p.m. on 18.01.1997 and remanded them to judicial custody. He arrested accused Nos.2 to 5 on 19.01.1997 and recorded their voluntary confessional statements in the presence of witnesses. Pursuant to the admissible portions of the statements of accused Nos.2 and 3, marked as Exs.P-12 and P-13, respectively M.o.3, aruval and M.O.4, Bamboo stick were recovered under two different mahazars, marked as Ex.P14 and Ex.P-15. He also arrested accused Nos.1, 6 and 7 on 21.01.1997 and remanded them to judicial custody. He gave a requisition (Ex.P-20) to the court to subject all the materials objects for chemical analysis and accordingly they were sent to Forensic Lab vide Ex.P-21, the Court's letter. Ex.P-22 is the Chemical Examiner's Report and Ex.P-23 is the Serologist's Report. On completion of the investigation, the Investigator filed the final report against all the accused under Sections 147, 148, 323, 302, 307, 302 read with Sections 34, 109 and 149 IPC before the concerned Judicial Magistrate Court.
3.The final report was taken on file by the concerned Magistrate and the case was committed to the Court of Session. Necessary charges were framed by the trial court against all the accused. In order to substantiate the charges levelled against the appellants/accused, the prosecution examined as many as 13 witnesses as P.W.1 to P.W.13, besides marking Exs.P-1 to P-23 and M.Os.1 to 6. On completion of the evidence on the side of the prosecution, the accused were questioned under Section 313 of the Code of Criminal Procedure about the incriminating materials found against him in the evidence of prosecution witnesses and the accused denied all of them as false. No witness was examined on the side of the defence and also no document was marked. The trial court heard the arguments advanced and on consideration of the evidence adduced, found Accused Nos.8 to 9 and 17 to 26 not guilty and acquitted them from all the charges framed against them and found Accused Nos.1 to 7 and Accused Nos.11 to 16 guilty, convicted and sentenced them to undergo imprisonments as stated above. Hence, this appeal at the instance of the appellants.
4.Advancing his arguments on behalf of the appellants, the learned senior counsel Mr.V.Gopinath, inter alia made two main points.
(a)Firstly, as per the prosecution, the occurrence has taken place on 18.01.1997 at about 7.30 a.m., in which Pandithurai was done to death and P.Ws.1 to 4 have been injured by the named accused and then P.W.11, the Sub-
Inspector of Police, attached to Aruppukkottai Taluk Police Station, who was on bandobust duty at A.Reddiapatti and it was P.W.1, who gave a report to him about the occurrence and the same was reduced into writing by P.W.11, which is Ex.P-1 and the same was sent to Aruppukkottai Taluk Police Station, where P.W.12, the Head Constable, who was on duty, on the strength of Ex.P-1 registered a case in Crime No.20/1997. Though the prosecution claim that the case was registered at 9.30 a.m. and the first information report, along with Ex.P-1 complain,t was despatched to the Court immediately, the same has reached the Court only at 10.00 p.m. after a delay of 12 hours and the prosecution had no explanation at all. Had it been true that the case was actually registered at about 9.30 a.m. on the date of occurrence i.e. on 18.01.1997, there was no reason for the first information report reaching the Court after a delay of 12 hours, that too when the Court is situated at a distance of two kilometres away from the police station. Therefore, in the absence of any plausible and acceptable explanation, it could be easily inferred that all embellishments and improvements were made in order to suit the prosecution case it has been prepared, roping 26 accused, in order to take revenge.
(b)The second reason adduced by the learned senior counsel is that it is admitted by P.Ws.1 to 4 and P.W.13, the Investigator, that a case came to be registered in Crime No.21/2007 on the file of the respondent police station and it is also admitted that the occurrence complained in Crime No.21/2007 has taken place at the same time and place which is the subject matter to Crime No.20/1997 and further itt would be clear from the admission of the Investigator that it was at the same transaction. Added further, Accused Nos.1, 6, 7 and 11 were all found to be injured in the transaction which is the subject matter of Crime No.20/1997 and they were all sent to the hospital for treatment, their wound certificates have been recovered and thus once it is part and parcel of the same transaction, it can be said that it was a case in counter. If that be so, a duty is cast upon the prosecution to place all the materials before the court in order to find out the truth or otherwise of the matter but, it is pertinent to point out that not even the first information report, wound certificates, final report or any material pertained to Crime No.21/2007 was placed before the Court and this would go against the settled principles of law. Therefore, it is the contention of the learned senior counsel that the above two grounds would be sufficient to set aside the judgment of the trial court.
5.The Court heard the learned Additional Public Prosecutor appearing for the respondent/State. According to him, P.W.1 has given explanation for the injuries sustained by accused Nos.1, 6, 7 and 11 by stating that at the time of occurrence all the villagers heard the distressing cry and came near the place of occurrence and in order to prevent the accused from indulging in any further criminal activities they pelted stones, by which they have caused injuries to the accused persons and added further the lower court relied on the evidence of P.Ws.1 to 4 who are injured eye-witnesses and their evidence also stood corroborated by the medical evidence of P.W.7, the doctor who gave treatment to them and since sufficient explanation was given by P.W.1 in respect of the injuries sustained by Accused Nos.1, 6, 7 and 11, the non- explanation by the Investigator will not in any way affect the prosecution case. He would further submit that once the prosecution placed necessary evidence to indicate that the case was registered on the strength of Ex.P-1, which was written by P.W.11 at about 7.30 a.m. and the same was sent to the police station, based on which a case came to be registered at 9.30 a.m. and the FIR was also despatched to the Court at the very time, without any delay, and since the delay has caused only by the Constable who took the FIR to the Court, it cannot be said that the case of the prosecution was either false or cooked up or it has been brought against the accused. The lower court by discussing the evidence in detail and giving reasons arrived at a conclusion finding the appellants guilty and hence the appeal has got to be dismissed confirming the conviction and sentence imposed on the appellants.
6.The Court considered the rival submissions made by the counsel on their side and also paid its anxious consideration to the materials on record.
7.It is not in dispute that on the date of occurrence i.e. on 18.01.1997 at about 7.30 a.m. an incident has taken place, in which one Pandiaraj was done to death and P.Ws. 1 to 4 were injured. The dead body was subjected to postmortem, after the inquest was made by the Investigator. To prove the said fact, the prosecution apart from examining P.Ws.1 to 4, examined the doctor who conducted postmortem on the body of the deceased and marked Ex.P- 18, the postmortem certificate, through him. Further, the appellants/accused have never questioned the fact that Pandiaraj died out of homicidal violence at any stage of the proceedings and hence without impediment it can be recorded so.
8.In the instant case, it is true that the prosecution projected its whole case and in support of the entire occurrence in which 26 accused have participated through the evidence of P.Ws.1 to 4. It is not in controversy that a case came to be registered in Crime No.20/1997 against all the 26 accused and the FIR was also despatched to the Court. In a given case, where the prosecution has marched evidence not only through the eye-witnesses but also injured witnesses, ordinarily the Court should not discard their evidence and if it was to be rejected, the Court must see strong circumstances or reason must be noticed. In the instant case, though the prosecution rested its entire case on the direct evidence of P.Ws.1 to 4, who were not only eye- witnesses but also injured witnesses, the Court is of the considered opinion that the judgment of the trial court cannot be sustained for the two reasons which are noticed by the Court.
9.Firstly, the occurrence has taken place on 18.01.1997 in which one Pandiaraj died and P.Ws.1 to 4 were injured, in respect of which a case in Crime No.20/1997 was registered and in support of which witnesses are marched before the Court. The Investigator has categorically admitted that at the same time of occurrence and place, accused Nos.1, 6, 7 and 11 were injured and further it could be clear from his evidence that another case was also came to be registered in Crime No.21/97 and accused Nos.1,6,7 and 11 were sent for medical examination, their wound certificates were received and finally the case was referred to as mistake of fact.
10.From the very evidence available through the Investigator, it could be seen that both the crime numbers, namely 20/97 and 21/97, are part and parcel of the same transaction. If that be so, the law would mandate that the prosecution must place all the material facts before the Court in order to find out the truth or otherwise of the respective contentions. So long as the material papers and records pertaining to Crime No.21/1997 are not produced before the Court, the Court cannot find out even the genesis of the occurrence. Further, when four of the accused were also sustained injuries and they were sent for medical examination, pursuant to the registration of Crime No.21/97 which is part and parcel of the transaction in question, the prosecution should have produced all the necessary facts. It is pertinent to note, not even the FIR, statements recorded, wound certificates, final report or any one of the material pertained to Crime No.21/97 was placed before the Court. When the lower court has thoroughly failed to consider this aspect of the matter, in the considered opinion of the Court, so long as all the materials were not placed before the Court, the Court cannot find out the truth or otherwise of the prosecution case to adumbrate justice, in accordance with law, and hence the prosecution has miserably failed to produce those documents and suppressed them, by which the prosecution case cannot be accepted.
11.Insofar as the second contention is concerned, as per the prosecution the report was given by P.W.1 at 7.30 p.m., the case came to be registered at 9.30 a.m. and the FIR was despatched to the Court at the very time. It is not in dispute that the judicial Magistrate's Court is situated in two kilometres distance from the police station. If that be so, there was no reason for the constable who took the FIR to take more than 12 hours to hand over the FIR to the Court. It is pertinent to point out that the prosecution has not examined the messenger constable who took the FIR to the Court. In such circumstances, the delay caused would naturally give way to infer that embellishments and improvements would have been made and that too in aa communal clash like this where 26 persons were involved.
12.In the instant case, therefore, the submissions made by the learned Additional Public Prosecutor that the injuries sustained by the accused were explained and that would be the sufficient reason for non-production of the documents and materials relating to Crime No.21/1997 cannot be accepted. Since the prosecution has failed to produce the documents and materials relating to Crime No.21/1997, the court to unable to find out the genuineness of the crime and the or otherwise of the allegations or accusations made against the appellants and coupled with the fact that there was long delay noticed in the FIR reaching the Court, the Court is of the considered view that the appeal has got to be entertained by upsetting the judgment of the trial Court insofar as convicting and sentencing the appellants.
13.Accordingly, the appeal is allowed and the conviction and sentence imposed on the appellants/accused Nos.1 to 7 and 11 to 16 are set aside and they are acquitted of the charges levelled against them. It is reported that the appellants are on bail. The bail bonds executed by them shall stand terminated and the fine amounts, if any, paid by them shall be refunded.
gb.
To:
1.The Principal Sessions Judge, Virudhunagar District at Srivilliputtur.
2.The Inspector of Police Aruppukkottai Taluk Police Station Virudhungar District.
3. The Additional Public Prosecutor Madurai Bench of Madras High Court Madurai.