Madras High Court
Kanagasabai vs The State on 10 June, 2009
Author: P.R.Shivakumar
Bench: P.R.Shivakumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 10.06.2009 C O R A M THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR Crl.A.No.820 of 2002 1. Kanagasabai 2. Selvanayakam ... Appellants Vs. The State Re. by: The Inspector of Police, Sethiathope Police Station, ... Respondent This Criminal Appeal has been filed under Section 374 of Criminal Procedure Code as against conviction and sentence imposed in S.C.No.270/2001 dated 29.05.2002 by the learned Additional District Sessions court (Fast Track Court), Chidambaram to set aside the same. For Appellant : Mr.R.Srinivas For Respondents: Mr.R.Muniapparaj, Govt. Advocate (Crl. Side) J U D G M E N T
The appellants herein, who figured as accused No.2 and 3 in S.C.No.270/2001 on the file of the Additional District and Sessions Judge (Fast Track Court), Chidambaram stood charged with offences punishable under Sections 148, 341, 326, 324 and 307 IPC. Along with the appellants three more persons by name Samithurai, Yasothai and Sarala were also prosecuted in the said case for offences punishable under Sections 147, 341, 325 and 323 IPC. The trial ended in acquittal of the above said three persons (A1, A4 and A5). The first appellant herein (A2) was convicted for offences punishable under Sections 326 and 324 IPC whereas the second appellant (A3) was convicted for offences punishable under Sections 326 and 323 IPC. The first appellant (A2) was sentenced to undergo 10 years rigorous imprisonment and pay a fine of Rs.500/- along with a default sentence of 3 months simple imprisonment for the offence punishable under Section 326 and to undergo 3 years rigorous imprisonment and pay a fine of Rs.500/- with a default sentence of 3 months simple imprisonment for the offence punishable under Section 324 IPC. The second appellant (A3) was sentenced to undergo rigorous imprisonment for 10 years and pay a fine of Rs.500/- with a default sentence of 3 months simple imprisonment for the offence punishable under Section 326 IPC and to undergo rigorous imprisonment for one year and pay a fine of Rs.500/- with a default sentence of 3 months simple imprisonment for the offence under Section 323.
2. As against the conviction and sentence, the appellants (A2 and A3) have come forward with the present appeal challenging the conviction recorded against them and the sentence imposed on them.
3. The case of the prosecution, in brief, can be stated as follows:-
The appellants herein (A2 & A3) and the other accused persons (A1, A4 and A5) belong to Adhidravida community. The injured Velmurugan (P.W.6) and other prosecution witnesses, namely P.W.1 to 5 belong to Vanniyar community. All of them were residents of Koorapadi village. The habitants of Vanniyar is on the western side whereas the Harijan colony is located on the eastern side. Due to previous enmity, the appellants herein (A2 and A3) and the other accused persons who were acquitted by the trial court (A1, A4 & A5), collected themselves in an unlawful assembly on 26.03.2000 at about 11.30 a.m near the house of one Dhandapani in Koorapadi village with the common intention of causing death to P.W.6-Velmurugan. P.W.6-Velmurugan who has got lands on the eastern side of the Adhidravida Colony, was proceeding towards his field at about 11.30 a.m on 26.03.2000. On seeing P.W.6 coming there along with his cattle, in furtherance of the common object of the unlawful assembly, Samithurai (A1) instructed the other accused to beat and kill P.W.6-Velmurugan. Immediately, the second appellant (A3) attacked P.W.6 with the knife on his head and then on the chin. The first appellant/Kanagasabai (A2) attacked P.W.6 with the handle of spade fitted with an iron ring repeatedly on the occipital region of the head of P.W.6. Thereafter, P.W.6 was attacked by Samithurai (A1), Yasothai(A4) and Sarala(A5) with stones and sticks. As the injured P.W.6-was attacked by the accused persons on the head, he received extensive injuries and fell down. The said occurrence was witnessed by P.W.1-Minor and P.W.2-Kunchidam. They did not venture to prevent the accused persons, as the accused were armed with weapons. After attacking P.W.6, all the accused (5 in number) threw the weapons used by them for attacking P.W.6 and went away from the place. Thereafter, P.W.1 and P.W.2 laid the injured P.W.6 on a cot, took him to their residential area, brought a car from Sethiathope and took him to the Government Hospital, Chidambaram for treatment. On their way to the hospital, they stopped at Orathur police station, where P.W.1-Minor gave a written complaint under Ex.P1. P.W.8-Vajjiram, the then Sub-Inspector of Police, Orathur police station received the said complaint, prepared Ex.P6-First Information Report in the printed format and registered a case in Crime No.59/2000 on the file of the said police station for offences punishable under Sections 147, 148, 341, 324 and 307 IPC against all the accused (A1 to A5). Meanwhile, the injured P.W.6 was treated by P.W.7-Dr.Balachander at the Government Hospital, Chidambaram. Ex.P5 is the Accident Register prepared by P.W.7 at the time of admission of P.W.6 for treatment. As the condition of P.W.6 was serious, he was referred to the Government Hospital, Cuddalore where from he was taken to a private hospital in Chennai, namely Apollo Hospital for further treatment. From the observations made by P.W.7 and from the reports received from Government Hospital, Cuddalore and Apollo Hospials, Chennai, P.W.7 gave a opinion that injury Nos.2, 3 and 4 found in Ex.P5 were grievous in nature and the other injuries found in the said document were simple in nature.
4. P.W.9-Pal Pandi, the then Inspector of Police, Sethithope circle got the information regarding the registration of the case at about 12.30 p.m on 26.03.2000. Immediately, he proceeded towards the place of occurrence in Koorapadi and started his investigation after receiving the copy of the FIR at about 1.30 p.m from the Sub-Inspector of police, Orathur. He prepared Ex.P3-Observation Mahazar and Ex.P7-Rough sketch in the presence of P.W.5-Nagaraj and one Arul. M.O.3-blood stained earth, M.O.4-sample earth, M.O.1 series-five granite stones and M.O.2 Series-handle or a spade fitted with an iron ring were recovered by him from the scene of occurrence under Ex.P4-Mahazar in the presence of the above said witnesses. He also recovered the dress materials of the injured, namely M.O.5-shirt, M.O.6-Lungie under Ex.P2-Form 95 when they were handed over to him by P.W.3-Ramasamy and one Thiruvengadam on 23.05.2000 at about 11.00 a.m. As P.W.9 was transferred thereafter, P.W.10-Murugesan, who succeeded P.W.9 in office, continued the investigation, recorded the statements of the injured witness-P.W.6 and the Medical Officer-P.W.7, collected the documents, completed the investigation and submitted a final report on 31.05.2000.
5. The final report submitted by P.W.10 was taken on file by the learned Judicial Magistrate No.2, Chidambaram on his file as PRC No.13/2001. After furnishing copies of the records free of cost to the accused under Section 207 Cr.P.C. the learned Judicial Magistrate No.2, Chidambaram committed the case for trial to the Principal Sessions Judge, Cuddallore District, Cuddalore. The learned Principal Sessions Judge took it on file as S.C.No.270/2001 and made over to the Additional District and Sessions Judge (Fast Track Court), Chidambaram for disposal according to law.
6. Necessary charges were framed in the trial court, namely the court of the Additional District and Sessions Judge (Fast Track Court), Chidambaram. The accused pleaded not guilty. As many as 10 witnesses were examined as P.W.1 to P.W.10, eight documents were marked as Exs.P1 to P8 and six material objects were marked as M.Os.1 to 6 on the side of the prosecution in order to substantiate the charges made against the accused persons.
7. After completion of recording the evidence on the side of prosecution, the accused were questioned under Section 313(1)(b) Cr.P.C. as to the incriminating materials found in the evidence adduced on the side of the prosecution. They denied them as false. No witness was examined and no document was marked on the side of the accused.
8. The trial court heard the arguments advanced on either side and took the view that the prosecution had not proved the case against three of the accused persons, namely Samithurai (A1), Yasothai (A2) and Sarala (A5) and hence acquitted them of all the offences for which they faced trial. However, the learned Trial Judge came to the conclusion that the first appellant herein (A2) was guilty of offences punishable under Sections 326 and 324 IPC and that the second appellant (A3) was guilty of offences punishable under Sections 326 and 323 IPC, convicted them respectively for the above said offences and awarded punishments as stated above.
9. As against the conviction recorded and sentence awarded against each one of the appellants (A2 and A3) they have preferred the present appeal on various grounds set out in the appeal petition.
10. The point that arises for consideration in this appeal is, "whether the judgment of conviction and the order of sentence of the court below suffers from any defect or infirmity warranting interference by this court in this appeal?"
11. Advancing arguments on behalf of the appellants (A2 and A3) Mr.R.Srinivas, learned counsel made the following submissions.
The judgment of the court below is against law, weight of evidence and probabilities of the case. Neither the prosecuting agency nor the witnesses examined on the side of the prosecution came out with the full and true facts. There is suppression of facts which alone will entitle the appellants/accused 2 and 3 to get the benefit of doubt. There was a delay in the FIR reaching the court which will be evident from the fact that the date in the date seal affixed by the court of the Judicial Magistarte has been corrected from 28th March 2000 to 27th March 2000, which will make it obvious that there was an attempt to show that there was either no delay at all or the delay, if any would be explainable. The trial court failed to note that the medical evidence was inconsistent with the ocular evidence of the other prosecution witnesses. In the absence of production of any material record to show that there was fracture, the trial court should not have arrived at a conclusion that P.W.1 sustained fractures. The court below failed to note that the presence of the so-called eye witnesses was artificial and doubtful and the witnesses examined on the side of the prosecution regarding the occurrence are interested witnesses and the said fact was not properly appreciated by the court below.
12. The story of the prosecution as to how the complaint happened to be received and the First Information Report happened to be registered is highly doubtful. It is the evidence of P.W.8, Sub-Inspector of Police that P.W.1 gave a complaint in writing. He is not in a position to say whether the complaint was written by him or by any other person. P.W.2, who is said to have accompanied P.W.1 at the time of lodging of the complaint, has not stated anything about who scribed the complaint (Ex.P1). On the other hand, P.W.1 would say that the complaint was written by another person to his dictation as he was an illiterate. But he was not in a position to say who was that scribe. The signature or other particulars of the scribe are not found in the complaint. There is nothing in Ex.P1 complaint to suggest that it was written by somebody else. This aspect will also cause a serious doubt on the prosecution version regarding when and how the complaint happened to be lodged and the case happened to be registered. Many improbabilities and discrepancies found in the evidence of prosecution witnesses have been simply brushed aside by the court below. The non-production of the cot in which the injured (P.W.6) was allegedly carried from the place of occurrence and the non-examination of the driver of the car in which he was transported to the police station and then to the hospital will also create a reasonable suspicion in the story of the prosecution as to the manner in which and the time at which the complaint was lodged with the police. Though the investigating agency has chosen to come forward with a story that M.Os.1 to 4 were recovered from the scene of occurrence and M.Os.5 and 6 were recovered when they were produced by P.W.3 and another person, none of the material objects was sent to the Forensic Laboratory for examination to find out whether they contain any blood stain and if so whether the blood was a human blood and if possible to correlate the blood group of the injured with the group of the blood found in the said articles. There had been an intentional improvement in the story of the prosecution during the course of trial wherein the witnesses have stated that the second appellant (A3) was armed with a stick as well as a knife and he attacked the injured P.W.6 with both the weapons, whereas in the complaint marked as Ex.P1, there is no averment to the effect that second appellant (A3) was armed with a stick also and he attacked P.W.6-Velmurugan not only with the knife but also with the stick. The contents of the complaint are to the effect that second appellant-Selvanayagam (A3) attacked the injured (P.W.6) on his hand and chin with a knife whereas the first appellant Kanagasabai (A2) attacked him with the handle of a spade on the head and body of P.W.6 and that the other three accused persons (A1, A4 and A5) alone attacked him with sticks and stones. This remarkable improvement over the complaint, as if the second appellant (A3) attacked P.W.6 with stick also was not properly considered by the court below. If it was properly considered, the court below could have come to the conclusion that there was a reasonable doubt regarding the prosecution version as to the details of the occurrence.
13. The learned counsel for the appellants contended further that, without examining the Medical officers who allegedly treated the injured at Appollo Hospitals, Chennai and without seeing the X-Ray or scan reports, the Medical Officer at Chidambaram, namely P.W.7 had chosen to given an opinion that there were fractures on the skull and dislocation of one of the shoulder joints; that the doctor himself was not disinterested; that the case of the prosecution as if the injured-P.W.6 was sent to the hospital along with a police memo for treatment has not been substantiated by producing the said police memo; that the Accident Register marked as Ex.P5 does not support the said case of the prosecution as there is nothing in Ex.P5-Accident Register to show that he was brought to the hospital with a police memo and that the court below has come to an erroneous conclusion that the appellants were guilty of offences punishable under Sections 326 and 324 and Section 326 and 323 respectively by accepting the evidence of interested witnesses without applying the test of careful scrutiny before acceptance. The learned counsel for the appellants also pointed out the fact that there was a long-standing enmity between the two communities in the said village; that the members of Vanniya community to which the prosecution witnesses belong, refused to attend the Peace Committee Meeting convened by the Executive Magistrate (Tahsildar) some time prior to the date of occurrence; that on the very same date of occurrence, the houses of the accused persons were destroyed by arson and that the prosecution witnesses have admitted that from the date of occurrence, the accused persons did not come to the village and are residing in Kattumannarkoil. It is the further contention of the learned counsel for the appellants that there was a long-standing enmity between the two communities and it escalated into a widespread violence on the date of occurrence in which the houses of the accused persons were set on fire by the members of the Vanniya community and during such incident, P.W.6-Velmurugan could have sustained some injuries; that regarding the destroyal of the residential houses of the accused, a complaint was given to the police, based on which a case was admittedly registered in Cr.No.60/2000; that the injuries sustained in the occurrence is sought to be projected as the injuries sustained in a different occurrence so as to come from the criminal case registered against the prosecution witnesses.
14. It is the contention of the learned counsel for the appellants that when such is the defence plea of the accused, namely the case registered on the complaint of the accused persons for the destroyal of their houses by setting them on fire and the present case registered for the injuries sustained by P.W.6 are case and counter case regarding one and the same occurrence, investigation in both the cases should have been conducted by one and the same Investigating officer; that though there is evidence to the effect that the very same Investigating officer conducted investigation in both the cases, the records in the counter case, namely Cr.No.60/2000 have been completely burked by not producing them in this ase and that the same alone will give rise to a reasonable suspicion that the prosecution has not come with the truth regarding the genesis of the occurrence. The learned counsel for the appellants also contended that the court below having disbelieved the prosecution case regarding the charge against other accused persons, namely A1, A4 and A5 should have also disbelieved the other part of the prosecution case, namely the case against the appellants and acquitted them by giving the benefit of doubt to them also.
15. Relying on all the above said grounds raised, the learned counsel for the appellants submitted that the conviction recorded and the sentence imposed on the appellants could not stand the scrutiny of this court and that viewed from any angle, the same should be set aside holding the appellants entitled to be acquitted of all the charges made against them.
16. This court also heard the submissions made by Mr.R.Muniappa Raj, learned Government Advocate (Crl.Side) as an answer to the contentions raised by the learned counsel for the appellants and paid its anxious considerations to the same. The entire records including the judgment of the court below, deposition of the witnesses and exhibits were also perused by this court.
17. Out of the five accused prosecuted before the trial court, 3 were acquitted and 2 were convicted. The two accused persons (A2 and A3), who were convicted by the court below for offences punishable under Sections 326 and 324 IPC and Sections 326 and 323 IPC respectively, have come forward with the present appeal challenging the conviction and sentence. Both the appellants, namely A2 and A3, stood charged for offences punishable under Sections 148, 341, 326, 324 and 307 IPC. However, they were found not guilty of offences punishable under Sections 148, 341 and 307 IPC. The first appellant (A2) was convicted for offences punishable under Sections 326 and 324 IPC, whereas the second appellant (A3) was convicted for offences punishable under Sections 326 and 323 IPC. The case of the Prosecution is that there was previous enmity between the accused persons and the injured P.W.6 pursuant to which occurrence P.W.6 was attacked by all the accused persons (5 in number) in the alleged occurrence concerned in this case. All the accused were accused of forming themselves into an unlawful assembly and comitting rioting punishable under Sections 147 and 148 IPC. Accused Nos.1, 4 and 5 were prosecuted for the offence under Section 147 as they were not armed with deadly weapons at the time of occurrence, according to the prosecution version. The appellants herein (A2 and A3) were prosecuted for an offence punishable under Section 148 IPC, since according to the prosecution case, A2 (the first appellant) was armed with a knife and the second appellant (A3) was armed with the handle of a spade fitted with an iron ring. Though the case of unlawful assembly and rioting as projected by the prosecution was supported by the so-called eye witnesses, namely P.W.1, P.W.2 and P.W.6, the court below disbelieved their evidence regarding participation of accused persons 1, 4 and 5 in the alleged occurrence and hence acquitted them of all the charges framed against them. In view of the finding of the court below that participation of accused Nos.1, 4 and 5 in the alleged occurrence, the court below acquitted the appellants (A2 and A3) also of the charge for an offence punishable under Section 148 I.P.C. So, it is quite clear from the judgment of the court below that the prosecution case that there was an unlawful assembly and rioting had been disbelieved by the court below. The said part of the judgment acquitting the accused 1, 4 and 5 of all the charges framed against them and the appellants herein/A2 and A3 of the charges for offences under Sections 148, 341 and 307 IPC, has not been challenged either by the police or by the injured witness. When that is so, the contention of the learned counsel for the appellants that the case of the prosecution regarding the genesis of the occurrence also should be disbelieved, gains sufficient force.
18. It is the contention of the learned counsel for the appellants that the contradictions and improbabilities found in the evidence of the prosecution witnesses regarding the nature of injuries allegedly sustained by P.W.6 and the manner in which he sustained such injuries were not properly appreciated by the court below and that had it properly appreciated, it would have arrived at a conclusion that the case of the prosecution as against the appellants (A2 and A3) also regarding the alleged attack made by them on P.W.6, was not proved beyond reasonable doubt and acquitted the appellants also giving the benefit of doubt. The contradictions and improbabilities in this regard pointed out by the learned counsel for the appellants are taken up for discussion one by one.
19. P.W.1, on whose complaint the case was registered has given an improved version regarding the overt acts committed by the appellants herein. According to the complaint given by him marked as Ex.P1, the first appellant-Kanagasabai(A2) attacked P.W.6 on his head and body using a wooden handle of spade fitted with an iron ring and the second appellant-Selvanayagam (A3) caused injury to P.W.6 by attacking him with a knife on the head and chin. Nowhere in the complaint it was stated that the second appellant (A3) was also armed with stick and attacked P.W.6 with stick also. A specific averment was made in the complaint that soon after the attack made by the appellants herein with the wooden handle of the spade and knife, the injured P.W.6 fell down and thereafter the other accused persons, namely (A1, A4 and A5) attacked him with stones and sticks. There seems to be an improvement made in the evidence of the prosecution witnesses over the particulars found in the complaint by adding an allegation that the third accused (second appellant herein), after initially attacking the injured P.W.6 with a knife, attacked him with a stick also. Thereby the prosecution witnesses made an attempt to account for the other injuries as if they were caused by the second appellant (A3). This material contradiction was not adverted to and was not appreciated in its proper perspective by the court below. This court finds substance in the above said contention of the learned counsel for the appellants.
20. There is also substance in the contention of the learned counsel for the appellants that the complaint marked as Ex.P1 and the FIR marked as Ex.P6 are to be viewed with suspicion regarding the manner in which and the time at which they were brought into existence. According to the prosecution case, the complaint was lodged at 12.20 p.m on the date of occurrence, namely 26.03.2000 and the complaint and the FIR reached the court of the Judicial Magistrate No.2, Chidambaram within 1= hours thereafter. The learned Government Advocate (Crl. Side) representing the respondent would contend that there was no delay in submission of the FIR to the court and that the doubts expressed by the learned counsel for the appellants in this regard are based on surmises. Of course it is true that there is an endorsement by the Judicial Magistrate No.2, Chidambaram to the effect that the complaint and FIR were received at 2.10 p.m on 26.03.2000 itself. However, the court below failed to note certain vital discrepancies found in the said documents. First of all there is correction in the time at which the information regarding the occurrence was received by the police. Such a correction is found only in the First Information Report marked as Ex.P6. Not only in the first page but also in the second page of Ex.P6 such a correction regarding the time of registration of the case is found. Originally, the FIR was prepared as if the case was registered on 26.03.2000 at 12.30 p.m. Subsequently, in column 2 at first page and in the second page, time has been altered from 12.30 p.m to 12.20 p.m. Signature of P.W.1 has also been obtained in Ex.P6 to show the receipt of a copy of the first information report. But P.W.1 has not stated anything regarding such receipt of a copy of the FIR. He has not stated in his evidence that he received a copy of the first information report. In Ex.P1-complaint, the Sub-Inspector has made an endorsement to the effect that the same was received and a case was registered as Cr.No.59/2000 on the file of Orathur Police Station for offences punishable under Section 147, 148, 341, 324 and 307 IPC on 26.03.2000 at 12.20 Hrs. If at all the complaint was received and the case was registered at a particular time as projected by the prosecution, such a need for correction in the FIR alone would not have arisen. Therefore, this court has to accept the contention of the learned counsel for the appellants that an attempt was made by the prosecution to minimise the time gap between the occurrence and the time of registration of the case, obviously with a view to adjust the time in accordance with the time of admission of P.W.6 in the hospital. As per Ex.P5-Accident Register, P.W.6 was admitted in the Government Hospital, Chidambaram on 26.03.2000 at 12.45 p.m. There is scope for a reasonable suspicion that the police, calculating the time that might be taken for covering the distance between the police station and the hospital, the time of registration of the case has been altered.
21. Yet another discrepancy found in those documents is worth noting. The date of seal of the court of Judicial Magistrate No.2, Chidambaram was affixed in Ex.P1 and P6 on 28.03.2000. But the said date has been corrected in both the documents as 27th from 28th. According to the prosecution case, P.Ws.1 and 2 while taking the injured from the place of occurrence to the hospital in a car, on their way to the hospital stopped at Orathur Police station and P.W.1 gave Ex.P1 complaint and only thereafter they proceeded towards the hospital to admit P.W.6 for treatment. If at all the injured was taken to the police station at the first instance and then to the hospital after furnishing information to the police, the police would have issued a Memo for treatment. P.Ws.1 and 2 do not state that any Medical Memo was issued by the police or that P.W.6 was taken to the hospital along with any memo issued by the police. On the other hand, the Medical Officer (P.W.7) would state in his evidence that the injured Velmurugan (P.W.6) came to the hospital along with a police memo. But the said police memo has not seen the light of the day. It has not been produced on the side of the prosecution. P.W.5, the Sub-Inspector of police, in his deposition, has not stated that he gave any memo for medical treatment to the injured P.W.6. He has simply stated that P.W.6-Velmurugan was in the car and he was found unconscious. It is his simple evidence that he registered the case based on the complaint given by P.W.1 in writing and informed the Inspector of Police, Sethithope Circle through wireless equipment and went to the place of occurrence at 1.30 p.m where he handed over the FIR to the Inspector enabling him to conduct investigation. In Ex.P1 also there is nothing to indicate that a memo for treatment was given by the police and the injured P.W.6 was sent to the hospital along with such memo. In Ex.P5-Accident Register also there is no reference to any Medical Memo. If at all the injured was brought to the hospital with such a Medical Memo issued by the police, the Medical Officer would not have omitted to note it in the Accident Register. Therefore, it is quite obvious that a new attempt was made through the evidence of P.W.7 as if the injured P.W.6 was brought to the hospital with a police memo for treatment.
22. It should be noticed that the prosecution projected its case as if the condition of the injured P.W.6 was so serious and hence after initial treatment he was referred to the Government Hospital, Cuddalore where from he was taken to a reputed private hospital, namely Apollo Hospital in Chennai for further treatment. No attempt was made by the police to record the statement of P.W.6 while he was in the Cuddalore Government Hospital or while he was in Apollo Hospital, Chennai. P.W.6 in his evidence would state that he fell unconscious soon after the occurrence and gained consciousness only after two months while he was in the Apollo Hospital, Chennai. But no document has been produced on the side of the prosecution to show that P.W.6 was given treatment in the Apollo Hospital, Chennai. The doctors who gave treatment to P.W.6 in Government Hospital, Cuddalore and in Apollo Hospital, Chennai have not been examined. Not even a certificate received from them has been produced.
23. If it is true that the condition of P.W.6 was so serious and that he gained consciousness only after two months, the doctors and the police would not have omitted to make arrangements for making an attempt to have the dying declaration of P.W.6 recorded. No attempt was made to have the dying declaration of P.W.6 recorded. No request was made to the Magistrate in this regard. If at all such a request was made, the Magistrate would have visited the hospital, noted the condition of the injured and obtained a certificate from the Medical Officer attending on him to the effect that he was not in a position to give any statement. In the absence of such evidence, this court has to accept the contention of the learned counsel for the appellants that for obvious reasons either the statement of P.W.6 was not recorded initially or that the statement so recorded should have been burked and a new statement should have been substituted. It is quite improbable that the Investigating Officer would have waited till the discharge of the injured (P.W.6), that too for about two months after the occurrence to examine him and record his statement.
24. Yet another discrepancy in the case of the prosecution brought to the notice of this court by the learned counsel for the appellants is worth mentioning. The alleged eye witnesses, namely P.W.1 and 2 have deposed to the effect that all the accused persons, after the occurrence, threw the respective weapons used by each one of them at the place of occurrence itself and left that place. It is the assertion of P.W.1, one of the alleged eye witnesses, that the accused dropped their weapons in the place of occurrence and left the place after the occurrence. P.W.4-Govindaraj, who allegedly came to the place of occurrence, after the incident was over, would state that the weapons allegedly used by the accused persons were found there in the place of occurrence when he had gone there. But, it is curious to note that the first Investigating Officer, namely P.W.9 was able to recover only five granite stones marked as M.O.1 series and the handle of spade marked as M.O.2 from the scene of occurrence. Neither the knife allegedly used by the second appellant (A3) nor the sticks used by the accused persons were recovered from the place of occurrence. When P.W.1 and 4 assert that the weapons had been dropped by the accused persons in the scene of occurrence and they were found available in the scene of occurrence, why the knife and sticks were not recovered by the police? What happened to them within a couple of hours? has not been explained by the police.
25. Under Ex.P4-Mahazar along with M.O.1 and M.O.2 weapons, M.O.3 blood stained earth and M.O.4 sample earth were also recovered. But none of them was sent to Forensic Laboratory to find out whether any traces of blood could be detected and if so whether it was human blood. Similarly, M.O.5 and 6, the alleged blood stained dress materials of P.W.6 were allegedly recovered by P.W.9 under Ex.P2-Form 95. According to Ex.P2, the said dress materials were recovered on 23.05.2000, nearly two months after the occurrence. P.W.3-Ramasamy, the father of the injured is said to have taken those articles to the police station and handed over the same to the Investigating Officer on 23.05.2000 at 11.00 a.m. But a perusal of the evidence of P.W.3 will show the improbabilities of the prosecution story in this regard. P.W.3 is a resident of Koorapadi village in which the occurrence took place. P.W.3 would state that he got the blood stained cloths of his son and kept them in the house of a relative till it was handed over to the police on 23.05.2000. Why should he keep it in the house of a relative for about two months when he himself got a house in Koorapadi has not been explained. What prompted him not to produce the same when he was initially examined by the police and how he thought it fit to produce them after two months, seems to be a million dollar question. Even according to the evidence of P.W.3, P.W.6 was taking treatment in Cuddalore Government Hospital for two days and during the said period of two days, police came there and examined P.W.3 regarding the injuries sustained by P.W.6. He has also stated that the police noted down the injuries sustained by P.W.2. If it could be true, the police could have very well recovered the blood stained clothes of the injured at that time itself.
26. If all these aspects are taken into consideration, one can come to a conclusion that some kind of concoction and embellishment was aimed at by introducing P.W.3 as a witness to show that the blood stained clothes of P.W.6 were recovered. P.W.3's evidence in this regard is also unbelievable. He is said to have gone to Chidambaram on the date of occurrence and returned at about 3.00 or 3.30 p.m after hearing the news that his son had been brutally attacked by the appellants herein. He would state that when he went to the place of occurrence at about 3.00 or 3.30 p.m on the date of occurrence, his son had already been taken to the hospital and hence he went to the hospital to see his son. But the evidence of police officers are to the effect that the Investigating Officer went to the place of occurrence at 1.30 p.m and was conducting investigation there. If it is true that he went to the place of occurrence before going to the hospital, he could have been examined by the Investigating Officer then and there itself. On the other hand, according to P.W.9's evidence he was examined only on 23.05.2000. It gives rise to a reasonable suspicion that P.W.3 has been introduced as a witness to show recovery of the blood stained clothes of the injured only as a result of afterthought and consequential attempt to concoct.
27. There is a clear admission by the prosecution witnesses that there was a long-standing enmity between the members of two communities Vanniyars and Adhidravidas. The injured and other prosecution witnesses belong to Vanniyar community, whereas the accused persons belong to Adhidravida community. There is also clear admission that in order to dilute the tension between the two communities, the Executive Magistrate, namely the Tahsildar, prior to the occurrence had convened a Peace Committee Meeting but the members of Vanniyar community boycotted the said Peace Committee Meeting and that under such circumstances large scale rioting involving two communities took place on the date of occurrence itself, namely 23.03.2000. The prosecution witnesses have candidly admitted that there was large scale rioting on the date of occurrence itself. The prosecution witnesses have also not denied the fact that in the said rioting houses of the accused persons were destroyed by fire. It has also been admitted by the prosecution witnesses that regarding the said mischief by arson, a case was registered on the file of the very same police station in Cr.No.60/2000 against the members of the Vanniya community including P.Ws.1 and 2. It is also their clear admission that, after the date of occurrence, the accused persons did not come back to the village and they were residing in Kattumannarkoil.
28. The case of the accused, in particular the appellants herein, is that due to the long-standing scuffle between the two communities, the members of Vanniyar community including P.W.1, P.W.2 and P.W.6 were indulged in large scale rioting against the members of Adhidravida community; that in such an incident that took place on 26.03.2000 they destroyed the residential houses of the accused persons and drove them out of the village; that the accused persons who were driven out by the members of the Vanniyar community on 26.03.2000 could not return back the village; that a complaint was lodged against the members of Vanniyar community including P.W.1, P.W.2 and P.W.6 and that the said persons and other members of the Vanniya community with the help of the police were able to postpone the registration of the case till a foisted case was registered against the accused persons to escape from the punishment for their acts. It is the specific case of the appellants and the other accused persons that P.W.6 might have sustained some kind of injuries in the rioting that took place on 26.03.2000 and that using the said injuries and making a mountain out of a mole hill by projecting the simple injuries to be grievous injuries, the case against the appellants and other accused have been concocted with the help and connivance of the police and P.W.7-Medical Officer. When it is the specific case of the appellants and other accused persons that the case registered against the appellants and other accused persons, namely Cr.No.59/2000 and the case registered based on the complaint of accused persons, namely Cr.No.60/2000 are case and counter case, as per Rule 588 of Police Standing Orders, both the cases should have been investigated simultaneously by the very same Investigating Officer. In fact there is evidence in the form of the testimony of P.W.10 that both the cases were investigated by him. But, whether the final report was submitted in both the cases at one and the same time has not been explained. On the other hand there are indications that both the cases were not investigated as case and counter case. It is admitted by P.W.10 that he did not conduct common investigation/simultaneous investigation in both the cases treating them as case and counter case. The police have treated the cases as different and disjunct on the premise that the occurrence in Cr.No.60/2000 took place subsequent to the occurrence in Cr.No.59/2000, in retaliation for the act of the accused persons in Cr.No.59/2000. Whatever it may be. When the accused contend that the case against them and the case against the prosecution witnesses are case and counter case regarding the very same incident, the prosecution is duty bound to produce the records of the counter case also. In order to avoid both the cases being tried by one and the same court, the police have devised an ingenious method and treated both the cases as two different cases registered regarding two different occurrences that took place with considerable time gap. A proper consideration of the evidence in this case will show that every attempt has been made by the prosecution witnesses with the help of police to see that both the cases are not tried together.
29. As rightly pointed out by the learned counsel for the appellants, there are reasons to believe that a lot of concoctions and embellishments have been made suppressing the genesis of the occurrence with a view to get the appellants and other accused persons convicted, so that the accused in the other case, namely Cr.No.60/2000 including P.Ws.1, 2 and 6 would escape from the said case. It is manifest from the fact that the Medical Officer-P.W.7 has chosen to issue a certificate as if P.W.6 sustained fractures on the cheek, left parietal region, left occipital region, right parieto occipital region without even going through the X-Rays or scan report or Radiologist's report. All the particulars of the fractures in the skull and cheek are found noted in the Accident Register itself. Without taking X-Ray or Scan Report, the Medical Officer could not have confirmed the presence of fractures on the skull or jaw or dislocation. P.W.7, in his cross-examination admitted that no X-Ray was taken to P.W.6 at Government Hospital, Chidambaram; that the X-Rays were taken for him only at Apollo Hospital; that the said X-Rays were not seen by him and that the injured witness, namely P.W.6 was not produced before him afterwards. The very fact that P.W.7, on clinical examination itself noted in the Accident Register with assertion that there were such fractures, coupled with the fact that he has gone to the extent of stating that the injured was brought to the hospital along with a Medical Memo issued by the police, whereas there is no such recital in the Accident Register as pointed out supra, would throw a serious doubt regarding the veracity of P.W.7 and give rise to a reasonable doubt that P.W.7 has gone too much in extending his support to the prosecution case.
30. If all these aspects are considered in proper perspective, one would come to a conclusion that there are so many improbabilities in the prosecution version besides samples of concoction and embellishment. The trial court did not advert to the discrepancies, contradictions and improbabilities pointed out supra. On the other hand, the trial court seems to have been carried away by the unreliable medical evidence of P.W.7 and Ex.P5. A proper appreciation of evidence in this case will result in arriving at a conclusion that the prosecution has miserably failed in establishing charges for offences under Sections 326 IPC and 324 IPC against the first appellant and the charges under Section 326 and 323 IPC against the second appellant also, beyond reasonable doubt; that there are reasonable doubts regarding the prosecution version as to the genesis of the occurrence and other aspects and that the benefit of such doubt should be given to the appellants and they should be held not guilty of the offences for which they were found guilty and convicted by the court below.
31. Considering all the above aspects, this court, without any hesitation, comes to the conclusion that the judgment of the court below in holding the first appellant guilty of the offences punishable under Sections 326 and 324 IPC and the second appellant (A3) guilty of the offences punishable under Sections 326 and 323 IPC and convicting them for the said offences is quite defective and infirm warranting interference by this court in exercise of its appellate powers. The said judgment shall not stand the scrutiny of this court.
32. For all the reasons stated above, this court comes to the conclusion that the appeal shall succeed. Accordingly the appeal is allowed. The judgment of the court below relating to the conviction of the first appellant for the offences punishable under Sections 326 and 324 IPC and the second appellant for the offences punishable under Sections 326 and 323 IPC is set aside and the appellants are acquitted of all the offences with which they stood charged. It is also directed that the fine amount paid by the appellants may be refunded to them.
asr