Madras High Court
State Rep. By vs Kaliaperumal on 28 August, 2008
Bench: M.Chockalingam, M.Venugopal
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 28.08.2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE M.VENUGOPAL CRIMINAL APPEAL NO.663 OF 2005 State rep. by The Inspector of Police, Needamangalam Police Station, Thiruvarur District (Crime No.196/2002) .. Appellant Vs. 1.Kaliaperumal 2.Peter 3.Iruthayadass @ Doss 4.Arulananthu 5.Ramachandran 6.Anbhazhagan 7.Thangaiyan 8.Kaliappan 9.Mohan 10.Aruldoss 11.David 12.Vasantha 13.Thangamani 14.Selvaraj 15.Somu 16.Kailasam 17.Sebasthiar 18.Jothibasu 19.Jayakumar 20.Azhagesan 21.Ravi 22.Panneer 23.Nallathambi 24.Srinivasan .. Respondents This criminal appeal has been preferred under Section 378 Cr.P.C. against the judgment of the learned District Sessions Judge, Nagapattinam made in S.C.No.262/2003, dated 27.04.2004. For Appellant : Mr.V.R.Balasubramanian, APP For Respondents: Mr.Veerakathiravan - - - - JUDGMENT
(The judgment of the Court was made by M.CHOCKALINGAM, J.) This State appeal challenges the judgment of the learned District Sessions Judge, Nagapattinam made in S.C.No.262 of 2003, whereby the respondents stood charged as follows:
A-3 to A-18 and A-21 to A-23 - S.147 IPC A-1,A-2,A-19, A-20 & A-24 - S.148 IPC A-2,A-3,A-6 - S.354 IPC A-1 and A-2 - S.302 IPC A-3 to A-5 - S.302 r/w S.109 IPC A-15 and A-16 - S.302 r/w S.109 IPC A-6 to A-14 and A-17 to A-24 - S.302 r.w S.109 IPC A-12 - S.354 IPC A-10 and A-11 - S.323 IPC A-7 to A-9 - S.323 IPC A-19 and A-20 - S.323 IPC A-12 and A-14 - S.323 IPC A-17 and A-18 - S.323 IPC A-21 - S.325 IPC (2 counts) A-24 - S.324 IPC A-23 - S.323 IPC On trial, they were all acquitted of all the charges levelled against them.
2.The short factual events necessary for the disposal of this appeal can be stated thus:
a)P.W.1 is the daughter, P.W.2 is the wife and P.Ws.3,11 and 12 are the sons of the deceased Annadurai. The accused Nos.1 to 14, 17 to 24 belonged to Keezhalavandasery, to which village, the P.Ws. also belonged. The other accused, namely Accused Nos.15 and 16, belonged to Devankudi. P.W.1, who was studying in the hostel at Mannargudi, came to the village during quarterly vacation. On 07.10.2002 at 4.00 p.m., she was taking bath in Ramanujam Naidu garden. At that time, A-2, A-3 and A-6 chased her and used filthy language and they dragged her upper cloth. She ran to the house with blouse and petticoat on her body and informed the same to her mother P.W.2 about the incident. At about 6.00 p.m., her father was informed. The deceased Annadurai took P.W.1 to the respondent police station and gave a complaint about the incident.
b)On the next day morning, i.e. on 8.10.2002 at about 7.00 a.m., P.W.1 went to nearby public pipe to take water. At that time, the accused No.12 uttered filthy language. At that time, A-2, A-3 and A-6 armed with wooden log came over there. All of them dragged the night dress of P.W.1. On information, the deceased accompanied by P.W.2, P.W.12, P.W.3, P.W.4 and also P.W.5 came to the place and questioned the conduct of the accused and asked why they outraged the modesty of the girl.
c)A-1 and A-2 immediately began to chase the deceased, who was running out of fear. A-1 and A-2 with the wooden part of the spade, A-24 armed with aruval, A-20 with rod, A-19 with Cycle chain and all other accused armed with wooden logs came to the spot. They began to attack the P.Ws. A-1 attacked the deceased with the wooden part of the spade on his head. A-2 also attacked the deceased on his head. A-7, A-8 and A-9 attacked P.W.3. All other accused also attacked the P.Ws. In that process, P.Ws.1 to 6 and 11 and 12 all were injured. The deceased fell down in a pool of blood. When the P.Ws. raised alarm, all the accused persons fled away from the place of occurrence.
d)The deceased and some of the injured persons were taken to Mannargudi Government Hospital and the other injured persons were taken to Needamangalam Hospital. P.W.7, the Doctor attached to Mannargudi Government Hospital, medically examined the deceased and declared dead. An information was given to the police station. P.W.7 also examined P.W.2 and has given Ex.P.3, the Accident Register. He also examined P.W.3 and has given Ex.P.4, the accident register. P.W.7 also medically examined P.W.5, Kumar and has issued Ex.P.5, the accident register. P.W.7 also examined P.W.4, Arivalagan and has issued Ex.P.6, the accident register.
e)P.W.8, the Doctor attached to Thanjavur Medical College Hospital gave treatment to P.W.6 Annadurai and a fracture in his hand was found. P.W.8 has given his opinion in Ex.P.8. P.W.10, the Doctor attached to Thanjavur Medical College Hospital examined P.W.11, Ilayaraja and has issued Ex.P.12, the report. P.W.13, the Doctor attached to Needamangalam Government Hospital examined Annadurai and has issued Ex.P.13, the accident register. He also examined Ilayaraja and has issued Ex.P.14, the accident register.
f)On receipt of the information, P.W.23, the Inspector of Police, proceeded to Needamangalam Government Hospital and recorded the statement of P.W.1, which was marked as Ex.P.1, on the strength of which, he registered the case in Crime No.196 of 2002 under Sections 147, 148, 323, 324, 354 and 307 IPC. Ex.P.24, the FIR was despatched to the court through a constable. Further, an intimation was received from the hospital that the said Annadurai died and hence the case was converted to Sections 147, 148, 323, 324, 354 and 302 IPC. Ex.P.25, the amended FIR was despatched to the Court through P.W.19, the Constable.
g)P.W.23 took up the investigation, proceeded to the spot and made an inspection in the presence of the witnesses. He prepared Ex.P.18, the observation mahazar and Ex.P.26, the rough sketch. He also recovered material objects from the place of occurrence under a cover of mahazar. P.W.23 went to Mannargudi Government Hospital and conducted inquest on the dead body of the deceased in the presence of the witnesses and panchayatdars and prepared Ex.P.27, the inquest report. The dead body was sent for the purpose of post-mortem along with a requisition.
h)P.W.9, the Doctor attached to the Government Hospital, Mannargudi, on receipt of the requisition, has conducted autopsy on the dead body of the deceased and has issued Ex.P.10, the post-mortem certificate and Ex.P.11, the final opinion, wherein he has opined that the deceased would appear to have died of shock and haemorrhage due to the injuries sustained.
i)Pending investigation, the Investigating Officer arrested Accused Nos.1, 3, 4, 6, 9, 10, 13, 17, 18, 22, 20, 24 on 10.10.2002 and they were sent for judicial remand. On 19.10.2002, the accused Nos.2, 21 and 5 were arrested in the presence of the witnesses. A-2 gave confessional statement voluntarily in the presence of the witnesses and the same was recorded, the admissible part of the same was marked as Ex.P.21. Pursuant to the same, A-2 produced M.O.12, shirt, which was recovered under Ex.P.22, mahazar. So far as the other case registered at the instance of the accused in Crime No.197 of 2002 was concerned, it was taken up for investigation by the Investigating Officer and he filed the report after examining the witnesses that it was one mistake of fact. All the material objects recovered from the place of occurrence, from the dead body of the deceased and also the material object recovered from A-2 were subjected to chemical analysis by the Forensic Science Department, which resulted in two reports, namely Ex.P.32 and Ex.P.36, the Serologist's reports. On completion of the investigation, the Investigating Officer has filed the final report.
3.The case was committed to the Court of Sessions and necessary charges were framed. In order to substantiate the charges, the prosecution examined 23 witnesses and relied on 39 exhibits and 12 M.Os. On completion of the evidence on the side of the prosecution, the accused were questioned under Section 313 Cr.P.C. as to the incriminating circumstances found in the evidence of prosecution witnesses, which they flatly denied as false. On the side of the defence, two witnesses were examined and 5 documents were marked. The trial court, on hearing the learned counsel on either side and looking into the materials available, has taken a view that the prosecution has not proved the case beyond reasonable doubt and hence it has entered the judgment of acquittal, which is the subject matter of challenge before this Court.
4.Advancing arguments on behalf of the appellant, the learned Additional Public Prosecutor has made the following submissions:
a)In the instant case, the prosecution has proved the case beyond reasonable doubt. The prosecution examined P.Ws.1 to 6 and 11, who were injured at the time of occurrence. The occurrence has taken place at about 7.00 a.m. on 08.10.2002. The case has also been registered immediately within a short span of time by P.W.23 on receipt of the statement from P.W.1 at Needamangalam Government Hospital. It is true, there are certain discrepancies found in the evidence of those injured witnesses. It is pertinent to point out that they are all injured witnesses. Ordinarily, the evidence of the injured in a given case like this, should not be discarded unless and until strong circumstances or reasons are brought forth. Merely because the witnesses have spoken about the number of persons, who have attacked them and it was found to be different, it cannot be stated that the witnesses have given false evidence. But the witnesses have spoken truth as to what happened at the time of occurrence.
b)In the instant case, P.W.7, the Doctor has been examined. Immediately after the intimation was given to the police station, P.W.23, the Inspector of Police, has gone over to the hospital and recorded the statement of P.W.1. The FIR has also been sent to the Judicial Magistrate concerned immediately. It is not correct on the part of the trial court to state that the Judicial Magistrate has omitted to mention the time and date as to when it was received. A perusal of the FIR would clearly indicate that it was received by the Judicial Magistrate on 08.10.2002. P.W.23 has spoken to the fact that the FIR was sent to the Court immediately.
c)Further, the another ground, on which the accused were acquitted, was that the injury that was sustained by A-7 was not explained by the prosecution, but it is not correct. At the time when P.W.12 was examined, he has categorically spoken to the fact that at the time of occurrence, he was about to be attacked by A-20 with an iron rod and when he moved aside, it was actually fell on the stomach of A-7 and hence he sustained injury. Apart from that, so far as Crime No.197 of 2002 was concerned, the prosecution was fair enough to place all documents and records. The evidence is also adduced to the fact that it was a false case, which was brought forth and hence it was recorded as one mistake of fact and it was also brought to the notice of the Court. Under these circumstances, the trial court should not have taken it as a point for acquittal of the accused.
d)In the instant case, all the injured witnesses were examined and they have spoken about the truth in one voice. The medical opinion canvassed also is corroborated with the ocular testimony and under these circumstances, the prosecution has brought home the guilt of all the accused and hence they have got to be dealt with by this court by setting aside the judgment of the trial court.
5.The Court heard the learned counsel for the respondents/accused on the above contentions and the Court has paid its anxious consideration on the submissions made.
6.It is not in controversy that one Annadurai, the husband of P.W.2 was done to death in an incident that took place on 08.10.2002 at about 7.00 a.m. Following the registration of the case originally under Section 307 IPC along with the other provisions and subsequently amended to Section 302 IPC along with other provisions, P.W.23 has conducted inquest on the dead body of the deceased. The dead body was subjected to post-mortem by P.W.9, the Doctor, who has given his opinion that the deceased died out of shock and haemorrhage due to the injuries sustained. The fact that the deceased died out of homicidal violence was never questioned by the respondents at any stage of proceedings. Hence, it could be safely recorded that the deceased died out of homicidal violence.
7.In the instant case, in order to substantiate the charged levelled against the respondents/accused, the prosecution has examined P.Ws.1 to 6 and 11. They are not only the occurrence witnesses, but also injured witnesses. It is also true, immediately after the occurrence, some of them were taken to Needamangalam Government Hospital and some were taken to Thanjavur Medical College Hospital, where they were treated. The accident register copies in respect of the injuries sustained by them were also brought to the notice of the trial court. The Court is mindful of caution that in a given case like this where number of injured witnesses have been examined, ordinarily, without sufficient cause or reasons, the court should not discard their testimony. In the instant case, the court is of the considered opinion that the trial court has taken a correct view in rejecting their testimony.
8.The occurrence has taken place, according to the prosecution at about 7.00 a.m. on 08.10.2002. Some of the injured were taken to Mannargudi Government Hospital along with the deceased. When P.W.1 was under treatment, she has given a statement to P.W.23, the Inspector of Police. The same was recorded, which was marked as Ex.P.1. On the strength of Ex.P.1, a case came to be registered in Crime No.196 of 2002. When documents are looked, it contained the name of 24 persons. But, in the F.I.R., the names of 26 persons found. As rightly pointed out by the trial court, the names of all the persons as found in Ex.P.1, statement and the order in which the names of accused mentioned in Ex.P.1 and the F.I.R. are found to be different. Hence it would cast a doubt as to whether the FIR could have come into existence on the basis of Ex.P.1, but on different manner. Further, in the instant case, when the case was altered to Section 302 IPC, Ex.P.25 was the report sent to the Court. A perusal of Ex.P.25 would indicate that 30 persons were involved in the occurrence and hence it casts a doubt as to whether there were 24 persons involved as found in Ex.P.1 or 26 persons as found in the FIR or 30 persons as found in Ex.P.25.
9.Apart from that, the inquest report would reveal that the deceased Annadurai was found dead for the first time by P.W.7, the Doctor at about 11.40 a.m. But, it is pertinent to note that even at about 9.45 a.m., he was brought to the hospital and was declared dead, according to P.W.7, the Doctor. Under these circumstances, the prosecution had no explanation to offer as to how such discrepancy was found. So far as P.Ws.11 and 12 are concerned, when they were examined by P.W.13, the Doctor, they have given different versions as to the number of accused, who have participated in the crime, namely 10 and 5 persons respectively. When the other witnesses, namely P.Ws.2, 3 and 5 were examined medically by P.W.7, the Doctor, they have mentioned different number of accused. All would cast a doubt whether such an occurrence could have taken place at all.
10.So far as the receipt of the F.I.R. is concerned, this court is unable to notice time as to when it was received by the concerned Magistrate. What is found by the trial Judge was that the Judicial Magistrate concerned has omitted to mention the same, which is not correct, but it is not legible. The trial Judge has also pointed out that the prosecution has miserably failed to explain the injury sustained by A-7. In the instant case, it is admitted by the prosecution that A-7, one Thangaiyan was injured in the very same transaction and he was taken to the hospital and he was under treatment from 08.10.2002 to 18.10.2002 for 10 days. When he was taken to hospital, he has informed to the Doctor that he was attacked by 5 persons. When a question was put in this regard to P.Ws.1 to 6, the injured witnesses, they have pleaded no knowledge about the injuries sustained by A-7. But, on the contrary, P.W.12, when he was examined, would state that when A-20, who attempted to attack him with iron rod, he moved aside and that the iron rod pierced the stomach of A-7. It was actually a feeble attempt made at the time of evidence before the court. The fact that A-7 was hospitalised for 10 days would indicate that the injury was serious. If to be so, the prosecution was duty bound to explain as to how the injury was sustained. But, in a given case, the prosecution did not come forward with a proper reply and the explanation tendered by the prosecution is not acceptable and hence it would affect the prosecution case. In the instant case, though the prosecution made feeble attempt to explain the injury sustained by A-7, this Court is unable to accept such an explanation.
11.Further, in the instant case, in respect of the same transaction, the same police has registered two cases, one in Crime No.196 of 2002 at the instance of P.W.1 and the other in Crime No.197 of 2002 at the instance of the opposite party, namely the respondents. When a case and counter were registered, the police agency is expected in law to investigate the case proper. On the contrary, it has got to be pointed out that the police agency has miserably failed to investigate Crime No.197 of 2002, which would be quite evident even from the evidence of P.Ws. According to P.Ws., the house and roof of the accused was found damaged. Under these circumstances, when P.W.23 went for investigation in Crime No.196 of 2002, a duty was cast upon him to investigate Crime No.197 of 2002, but he failed to do so. When the property of the accused was found damaged and that too in the same transaction, the prosecution was duty bound to place the genesis of the whole case. In the absence of the genesis brought to the notice of the court, the court would not be in a position to find out the truth. In the instant case, the Investigating Officer, without conducting investigation in Crime No.197 of 2002, has closed the same as mistake of fact.
12.Those discrepancies found in the FIR as to the number of accused, non explanation of the injuries sustained by A-7 and that too in an acceptable manner and further non proper investigation of Crime No.197 of 2002 and not placing materials in order to find out the genesis of the occurrence would go to show that the prosecution has actually failed. The trial court has marshalled the evidence proper and entered into the judgment of acquittal. At this juncture, it has to be pointed out that the caution made by the Apex Court and the settled proposition of law is that when the trial court has come to the conclusion and ordered acquittal of the accused on appreciation of evidence, the appellate forum should not interfere unless and until the judgment is found to be perverse or the judgment of acquittal was not based on proper reasons. In the instant case, the court is of the considered opinion that the trial court has come to a correct conclusion and gave the benefit of doubt, what is available and recorded above, to the accused/respondents and has recorded an order of acquittal. This court is unable to notice any reason to interfere with the judgment of the trial court. Accordingly, the criminal appeal fails and the same is dismissed.
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