Madras High Court
Selvam vs The State Rep. By on 13 March, 2012
Author: S.Palanivelu
Bench: S.Palanivelu
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 13.03.2012 CORAM : THE HONOURABLE MR. JUSTICE S.PALANIVELU CRIMINAL APPEAL No.1027 of 2006 1.Selvam 2.Kannan 3.Periyasami 4.Chikka Gounder 5.Rukkmani 6.Chithra 7.Malar 8.Kanniyammal : Appellants/Accused 1 to 8 versus The State rep. By Deputy Superintendent of Police, Namakkal District Erumaipatti P.S.Cr.No.336 of 2005 : Respondent/Complainant Criminal Appeal filed against the Judgment made in S.C.No.63 of 2006 dated 18.10.2002 in S.C.No.338/2001 on the file of the District and Sessions Judge, Namakkal (Special Court for SC/ST Act and Prevention and Attrocities Act, 1989). For Appellants : Mr. C.D. Johnson For Respondent : Mr.C.Balasubramanian, Addl. Public Prosecutor J U D G M E N T
The following is the brief account of the prosecution case sans unnecessary details:
1.(a) P.W.1 lodged a complaint with the respondent police station stating that on 14.02.2005 at about 2.00 p.m., first accused came and cut down the plants belonging to the complainant. While Parameswari, daughter of the complainant asked him, the 1st accused cursed her by referring to her caste "ngho rf;fpypr;rp mg;gojhz;o btl;Lntd;/ fz;lhu Xhp". She informed the same to P.W.1. At about 6.30 p.m.while P.W.1 was coming to his house through the way of 1st accused house, 5th accused, mother of 1st accused informed him that his daughter Parameswari abused them. At that time all the accused waylaid him and all of them started assaulting him. Periasami dishonured him by saying "rf;fpypaDf;F mt;tst[ Mr;rh>" and assaulted his son Manivel by means of wooden log. Kannan assaulted P.W.1 by crowbar by means of which he sustained injury on his forehead. Kannan also assaulted him with stone causing contusion on his chest. Then first accused stamped on Parameswari. Chitra abused Muththalammal and pushed her on the ground. The fifth accused also assaulted mother-in-law Veerammal and pushed her down. All of them criminally intimidated. On hearing the noise P.W.5 and 6, Palaniammal and Rangan came and on seeing them, the accused persons run away from the scene of occurrence with the weapons. One Sakthivel admitted them to the hospital.
1.(b) Information was sent to the police station from the Government Hospital, Namakkal and P.W.12 Sub-Inspector of Police, proceeded to the Government Hospital, Namakkal, enquired P.W.1, recorded Ex.P.1 complaint and went to the police station and registered a case u/s.147, 148, 324, 323, 506(2) IPC and under section 3(1)(XI) of SC and ST Act. He lodged F.I.R., Ex.P.17 and sent the same to the Judicial Magistrate Court and also to the Deputy Superintendent of Police for investigation.
1.(c) P.W.12 Doctor attached to the Government Hospital, Namakkal, examined P.Ws.1 to 4 and issued Ex.P.18 to 21. He also examined witness Muththalammal and issued Ex.P.22 wound certificate. He has also opined that all of them sustained simple injuries. By means of Ex.P.23, the superintendent of Police, Namakkal, nominated P.W.14 Deputy Superintendent of Police, Namakkal, to investigate the case.
1.(d) P.W.14 took up the case for investigation, proceeded to the scene of crime, prepared Observation Mahazar Ex.P.2 and Rough Sketch Ex.P.24, examined witnesses and recorded their statements. He also took up another case in Cr.No.337/2005 u/s. 147, 148, 324, 323, 506(2) I.P.C., which was registered on the complaint lodged by the first accused. He arrested Accused No.3 and 4 on 16.12.2005 in front of Valayappatti Panchayat Union Office. Muththalammal, after the occurrence died. He got her post mortem certificate and found that she suffered natural death. He gave requisition to P.Ws.10 and 11 for issuance of community certificates to the P.Ws.1 to 4 and accused. P.W.10 issued Exs.P.4 to 8 community certificates stating that P.Ws.1 to 4 and Muththalammal belong to Hindu Arunthathiyar Community. P.W.11, the Deputy Tahsildar has issued Exs.P.9 to 16 community certificates, certifying that the accused 1 to 8 belong to Kurumba Naidu community. He also seized M.Os.1 and 2 crowbar and stone in the scene of occurrence under cover Mahazar Ex.P.3 and through Ex.P.27 Form 95, he sent the properties to the Court. After the investigation in Cr.No.337 of 2005, P.W.14 filed referred Charge Sheet, since the case was mistake of fact. As the present case was found to be true, he filed charge sheet.
2. After the examination of witnesses, while the accused were questioned under Section 313 Cr.P.C. as regards the incriminating materials available against them in the prosecution evidence, they denied complicity to the offences. The Trial Court, after analyzing the evidence on record, found all the accused guilty and convicted them as follows:
Appellant/ Accused Found guilty u/s Conviction and Sentence by the Court below Appellant/ Accused 1 147 I.P.C. and 3(1)(x) SC & ST Act For the offence under Section 147 I.P.C. sentenced to pay a fine of Rs.1,000/- in default to undergo R.I. for 2 weeks and for the offence u/s 3(1)(x) of SC & ST (P.A.) Act 1989, sentenced to undergo R.I. for six months and to pay a fine of Rs.500/- i/d to undergo R.I. for two weeks. Sentences ordered to run concurrently. Set off allowed.
Appellant/ Accused 2 148 & 324 I.P.C.
For the offence under Section 148 I.P.C. Sentenced to undergo R.I. for two months and to pay a fine of Rs.1,000/- in default to undergo R.I. for one week and for the offence u/s 324 IPC sentenced to undergo R.I. for three months and to pay a fine of Rs.3,000 in default to undergo R.I. for two weeks. Sentences ordered to run concurrently. Set off allowed.
Appellant/ Accused 3 148 I.P.C. and 3(1)(x) SC & ST Act For the offence under Section 148 I.P.C. Sentenced to undergo R.I. for two months and to pay a fine of Rs.1,000/- in default to undergo R.I. for one week and for the offence u/s 3(1)(x) of SC & ST (P.A.) Act 1989, sentenced to undergo R.I. for six months and to pay a fine of Rs.500/- i/d to undergo R.I. for two weeks. Sentences ordered to run concurrently. Set off allowed.
Appellants 4 to 8/Accused 4 to 8 147 I.P.C.
For the offence under Section 147 I.P.C. sentenced to pay a fine of Rs.1,000/- each, in default to undergo R.I. for 2 weeks each Aggrieved against the order of the conviction the Appellants/A1 to A3 have preferred this appeal.
3. Point for consideration:
"Whether the prosecution has brought home the guilt of the accused under the charges framed beyond all reasonable doubt?"
Point:
4. The learned counsel for the appellants Mr. C.D. Johnson would submit that there is remarkable and unexplained delay in the F.I.R. to reach the Court, that from the evidence available on face of record, it can be seen that both the occurrences proceeded by the accused and P.Ws took place at the same time, that the first accused sustained injuries and it is for the prosecution to explain the same. But in this case, it is not done so, that it is the bounden duty of the investigating officer to place all the records pertaining to Cr.No.337 of 2005 and that the investigating officer has failed to ascertain the genesis of the occurrence that the contradictions between the evidence of the witnesses would show that the prosecution has not proved the guilt of the accused and that the charges against the accused have not been proved by the prosecution beyond reasonable doubts.
5. The learned Additional Public Prosecutor Mr.C. Balasubramanian would submit that there is no delay in sending the F.I.R to Court, that after the occurrence two witnesses were admitted to the hospital and on information P.W.12 Sub Inspector of police came to the hospital and recorded the complaint statement from P.W.1 and thereafter he lodged the complaint and there was no delay for the F.I.R. to reach the Court, that on the face of it, it could be seen that both the occurrences as mentioned by the prosecution witnesses and accused party took place on different times in different places and hence, there is no necessity to produce the case records pertaining to Cr.No.337 of 2005, that the evidence of prosecution witnesses have been duly corroborated with medical evidence and that the appellants are liable to be sentenced under the provisions of law and that there is no valid ground made out to disturb the findings of the Court below.
6. The occurrence took place on 14.12.2005 at 6.30 p.m. as per complaint. From the wound certificate it transpires that prosecution witnesses have been examined and treated by the doctor on 14.12.2005 at 9.40 p.m. According to P.W.12 he received intimation and proceeded to the hospital. Even though the prosecution witnesses were treated at 9.40 p.m. on 14.12.2005 P.W.12 came to the hospital only on 15.12.2005 at 17.00 hours and recorded the complaint statement. In this juncture it has to be seen that there was one day delay for P.W.12 to come to the hospital for getting the intimation from the hospital as to the admission of injured witnesses. P.W.12 did not assign any reasons for the delay of about one day for him to come over to the hospital after getting intimation. Further the F.I.R was received by the Court on 6.12.2005 at 10.30 a.m. This Court is unable to find out any plausible explanation from P.W.12 for the delay of one day for him to go over to hospital. This delay which remains unexplained, in view of this Court, is fatal to the prosecution.
7. The next point argued by the learned counsel for the appellant is that since both the offences took place at the same time even though if the investigating officer filed referred charge sheet in another case, it is his duty to produce all the case records in Cr.No.337 of 2005, so as to enable the Court to ascertain the genesis of records in this case. The learned Additional Public Prosecutor would submit that on reading the F.I.R, it must be seen that the time of occurrence and the scene of occurrence are different. In the present case i.e., in Cr.No.336 of 2005, the occurrence is alleged to have taken place at 6.30 p.m. on 14.12.2005 near the house of P.W.1 In the complaint lodged by the first accused which was registered in Cr.No.337 of 2005, he has mentioned as if the occurrence took place at 8.00 p.m. on 14.12.2005. Further in the first page of F.I.R, the police have filled the column stating as if the occurrence took place nearer to the house of first accused. But on reading the F.I.R.No.337 of 2005, there is no specific mention about the scene of crime by the first accused. It is in the evidence of P.W.1 that both the occurrences have not taken place at the same time.
8. It is the categorical admission on the part of P.W.1 in his cross examination that the 5th accused also suffered injuries in the same occurrence and they were also taking treatment in Namakkal Government Hospital while they were (P.Ws) inpatients in the said hospital. In other part of the cross examination he would say that it is incorrect to state that both the occurrence took place at the same time. P.W.2 would depose that it is correct to suggest that some of the accused in this case also sustained injuries in the same occurrence and they were admitted in the Government Namakkal Hospital as inpatients. Both of them would also admit that at the time of occurrence there was no light. P.W.14 investigating officer would also concede in his cross examination that it is true to suggest that on 14.12.2005 at the same time Accused 1 to 8 were assaulted by P.W.1 and his relatives and the 1st accused lodged complaint to that effect and the same was registered in Erumapatti Police Station Cr.No.337 of 2005. From the above said evidence it comes to light that both the occurrences took place simultaneously. It is the version of the prosecution witnesses that the occurrence took place at 6.30 p.m. while it is alleged by the accused that the occurrence took place at 8.30 p.m. It is also in evidence that at the time of occurrence there was darkness. Hence, there is no impediment to observe that both the occurrence took place simultaneously.
9. From the evidence of P.W.14, it is seen that he has also taken up the investigation in Cr.No.337 of 2005 simultaneously and filed referred charge sheet in the said case as 'Mistake of Fact'. Police Standing Order 588(A) deals with the responsibilities of investigating officer who is investigating a case and the case in counter and the procedure to be adopted by him, which is as follows:
"588-A. In a complaint and counter complaint arising out of a same transaction, the Investigation Officer has to enquire into both of them and adopt one or the other of the two courses, viz., (1) to charge the case where the accused were the aggressors; or (2) to refer both the cases if he finds them untrue. If the Investigation Officer finds that either of the course is difficult, he should seek the opinion of the Public Prosecutor and act accordingly. A final report should be sent in respect of the case referred as mistake of law and the complainant or the counter-complainant, as the case may be, should be advised about the disposal by a notice in Form No.96 and to seek remedy before the specified Magistrate if he is aggrieved by the disposal of the case by the Police."
10. Even though he has taken up investigation in both the cases he has failed to produce the records pertaining to Cr.No.337 of 2005 in this case. He has not even produced referred charge sheet copy before this Court to see whether the accused are the aggressors and which is the genesis of the occurrence. Of course, true, from the cross examination of P.W.13 Exs.C.1 and C.2 and from the cross examination of P.W.12 Exs.C.3 and C.4 were marked. Exs.C.1 and C.2 are the wound certificates issued for 1st and 5th accused. 1st accused has sustained a lacerated wound in the left arm and two abrasions on the left fact and right nipple. It is opined that the injuries are simple in nature. As far as 5th accused is concerned she has no external injuries. She complained of only pain. Ex.C.3 is copy of F.I.R. lodged in Cr.No.337 of 2005 and Ex.C.4 is the complaint lodged by the first accused. Since the records related to Cr.No.337 of 2005 have not been produced, this court is unable to ascertain the genesis of the occurrence as well as who is the aggressor. In this context, it is to be necessarily observed that the circumstances lays suspicion over the prosecution case.
11. The next limb of contention of the learned counsel for the appellant is that the injuries sustained by the first accused have not been explained before the Court. Neither P.W.12 nor P.W.14 has stated about the injuries. Further, P.W.12 has stated in his cross examination that the 1st and 5th accused were also taking treatment in the hospital and he recorded statement from the first accused.
12. In (2006) 3 Supreme Court Cases (Cri) 212 [Nagarathinam and Others v. State rep. By Inspector of Police] it is observed that question of failure by the prosecution to explain injuries on the person of accused had not been considered by the High Court and it had wrongly held that burden of proof in respect thereof lay on the accused-appellants.
13. In (2007) 13 SCC 554, [ Raj Pal v. State of Haryana] also it is observed that when the prosecution has failed to explain the injuries on the accused, ipso facto the prosecution case should be thrown out, the non-explanation of the injuries on the accused is certainly an important circumstance which has to be taken into consideration by the court in deciding whether the benefit of doubt should go to the accused.
14. Repelling the above said contention, the learned Additional Public Prosecutor would place much reliance upon a decision of the Supreme Court in (2010) 3 SCC (Cri) 417 = (2010) 7 SCC 477 [Sikandar Singh and others v. State of Bihar] wherein an earlier decision of three Judges Bench of the Supreme Court has been referred to and the following is the relevant portion:
"36. Finally, the third question for consideration is as to what is the effect of non-explanation of injuries suffered by the appellant Sheo Jee Singh. It cannot be held as an unqualified proposition of law that whenever the accused sustains an injury in the same occurrence, the prosecution is obliged to explain the injury and on failure of the prosecution to do so, the prosecution case has to be disbelieved.
37. In Takhaji Hiraji v. Thakore Kubersing Chamansing [(2001) 6 SCC 145 : 2001 SCC (Cri) 1070] a Bench of three Judges of this Court, referring to earlier three-Judge Bench decisions, observed that: (SCC p. 154, para 17) 17. Before non-explanation of the injuries on the persons of the accused persons by the prosecution witnesses may affect the prosecution case, the court has to be satisfied of the existence of two conditions: (i) that the injury on the person of the accused was of a serious nature; and (ii) that such injuries must have been caused at the time of the occurrence in question.
15. In the said judgment it is opined that the non-explanation of injuries on the persons of accused may affect the prosecution case. It is stressed by the learned Additional Public Prosecutor that only if the injuries is serious, then it should have been explained and that it is not the law that in all the cases when the accused happens to sustain injury it need not be explained. But this Court does not accept this contention. In the aforestated decisions it is candidly held that the non-explanation of injuries on the accused may affect the prosecution case and there is no law has been laid down as the serious injuries on the accused should alone be explained.
16. In view of the above said circumstances, this Court is of the considered view that the genesis of the occurrence has not been enlightened by the prosecution and there is no material to find that the accused were aggressors. Further the injuries on first accused remains unexplained by the prosecution. Hence, this Court is of the view that the charges framed against the accused have not been established beyond reasonable doubt. The appellants are entitled for the benefit of doubt. The judgment and conviction passed by the Court below is interfered with, the same are liable to set aside and it is accordingly set aside. I answer this point as indicated.
17. In fine, the Criminal Appeal is allowed setting aside the conviction and sentence recorded by the trial Court. The disposal of the material objects shall be in accordance with the directions of the trial Court. The fine amount paid if any, shall be refunded to the appellants. Bail bonds executed by the appellants, shall stand cancelled.
13.03.2012
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S.PALANIVELU, J.
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Crl. Appeal No.1027 of 2006
13.03.2012