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Saroja v. State: represented by: - C.A.No.309 of 1996  RD-TN 602 (25 July 2003)
IN THE HIGH COURT OF JUDICATURE AT MADRAS
THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM
C.A.No.309 of 1996
2. Muthusamy .. Appellants -Vs-
State: represented by:
Inspector of Police
Cr.No.319/94 of Puduchatram P.S. .. Respondent This criminal appeal is preferred under Sec.374 of The Code of Criminal Procedure against the judgment dated 27.3.1996 passed in S.C.No.3 /96 on the file of the Principal Sessions Judge, Salem. For Appellants : Mr.K.V.Sridharan
For Respondent : Mr.O.Srinath
Government Advocate(Crl. Side)
This appeal is brought forth by the accused 1 and 2 in a case of murder, wherein they stood charged and tried along with one Raju @ Samidurai as the third accused and A-1 and A-2 were found guilty under Ss 304(2) and 326 r/w 34 of I.P.C. and sentenced to undergo 3 years R.I. each under Sec.304(2) of I.P.C. and to undergo 1 year R.I. each under Sec.326 r/w 34 of I.P.., and the third accused was acquitted of all the charges levelled against him.
2. The short facts necessary for the disposal of this appeal can be stated as follows:
(a) P.W.1 Pavayee and her deceased husband Perianna Gounder were residing at Iyer Thottam, Kannoorpatti. The first appellant/A-1 was the brother-in-law, while the second accused was the father of the first accused. The third accused was the younger brother of the first accused. The son of P.W.1 one Palanivelu married one Rajammal. After a divorce, he married A-1 10 years prior to the occurrence. Palanivelu and the first accused lived only for a period of six months, and due to strained relationship, A-1 left her matrimonial home and was living with her parents. A male child was born to A-1 through her husband Palanivelu. Six months prior to the date of occurrence, the accused made a demand to P.W.1 and the deceased in respect of partition of the family properties. The deceased informed them that he would effect partition only after the minor son of A-1 attained majority. On the date of occurrence namely 16.7.94 at about 11.00 A.M. at Kannoorpatti while P.W.1 and her husband the deceased Perianna Gounder were working in their field, A-1 to A-3 came there and demanded for partition. The deceased Perianna Gounder gave the very same answer what he was telling earlier. A wordy quarrel arose. Following the same, A-1 to A-3 pelted stones on P.W.1 and the deceased Perianna Gounder. P.W.1 and her husband tried to escape from there and rushed towards their house. A-1 to A-3 chased P.W.1 and Perianna Gounder, took cart pegs found in front of their house, beat them indiscriminately on different parts of their body with an intention of causing death. The deceased and P.W.1 sustained grievous injuries. (b) Perianna Gounder and P.W.1 were taken to the Government Hospital, Rasipuram, and they were medically treated by P.W.5 Dr.Premavalli. At 6.00 P.M. Perianna Gounder died. P.W.1 was sent to the Government Hospital, Salem, where she was given further treatment. An intimation was given to the Rasipuram O.P. and in turn to Puduchatram P.S. P.W.11 Periannan, Sub Inspector of Police, proceeded to the Government Hospital, Rasipuram, where he came to know that P.W.1 was sent to the Government Hospital, Salem. He proceeded to the Government Hospital, Salem and recorded the statement of P.W.1 marked as Ex.P1. On the strength of the said Ex.P1 statement, he registered a case in Crime No.319/94 under Ss 302 r/w 34 and 325 r/w 34 of the Indian Penal Code against all the three accused. Ex.P19 printed F.I.R. was despatched to the concerned Judicial Magistrate's Court, while the copies were sent to the higher officials. P.W.12 Rajarathinam, Inspector of Police, attached to Namakkal Police Station, on receipt of the F.I.R. took up the investigation of the case, proceeded to the site of occurrence, made an inspection and prepared Ex.P3 observation mahazar in front of the witnesses and Ex.P20 rough sketch. Photographs were t aken in respect of the site of occurrence. M.O.2 (series) cart pegs, M.O.4 bloodstained earth and M.O.5 sample earth all were recovered under Ex.P4 mahazar, while M. O.1 (series) stones was recovered under Ex.P5 mahazar. P.W.12 examined the available witnesses there. He proceeded to the Government Hospital, Rasipuram, where he conducted inquest on the dead body of Perianna Gounder in the presence of the witnesses and panchayatars and prepared an inquest report under Ex.P21.
(c) On the strength of a complaint given by the first accused, a case in Crime No.320/94 under Ss 325 and 323 of I.P.C. was registered in Puduchatram Police Station. P.W.12 took a copy of the F.I.R. The Investigating Officer took up the investigation in that case along with the instant case. At the time of investigation, the Investigating Officer found that the case in Crime No.320/94 was referable as one mistake of fact. The proceedings in respect of Crime No.320/94 were marked as Ex.P24. The refer notice of the same was also served on the first accused. (d) A requisition was sent to P.W.7 Dr.Varadarajulu attached to the Government Hospital, Rasipuram for conduct of the autopsy on the dead body of Perianna Gounder through P.W.9 Kuppusamy, Constable. Accordingly, P.W.7 Doctor conducted autopsy on the dead body of Perianna Gounder and has issued Ex.P12 postmortem certificate, wherein the injuries were narrated as follows: External Examination:
1) Lacerated injury of 3 x 1 cm x Bone depth over the left side of frontal region. The outer vertex of the bone is fractured. 2) Black eye on left side.
3) Lacerated injury of 2 x 1 cm x bone depth over the floor of the left nostril.
4) Lacerated injury of 4 x 1 cm x bone depth over upper of left leg with abnormal mobility.
5) Lacerated injury of 4 x 1 cm x bone depth with abnormal mobility in upper 1/3 of right leg.
1) Fracture of left frontal bone for about 7 cm. 2) 100 ml of fluid blood over left cerebral hemisphere. 3) Fracture of foot of the left orbital cavity.
4) On dissection Ext. injury of 5: Haemo arthrosis of right knee joint with 200 ml of fluid blood inside the joint cavity and all the ligaments torn off. 6) All visceral organs pale. Stomach empty. Bladder empty. Hoid intact. The Doctor has opined that the deceased would have died of the cumulative effect of shock and haemorrhage and head injury. (e) The Investigating Officer examined P.Ws.1 and 3 and other witnesses and recorded their statements. He also examined the Constables. He arrested A-1 and A-2 who were taking treatment at the Government Hospital, Namakkal. The accused were remanded to judicial custody. The third accused was arrested on 21.7.94 . P.W.13 Sivagami, Inspector of Police took up further investigation, recorded the statements of P.Ws.5 to 7 and filed a charge sheet against the accused on completion of the investigation.
3. In order to prove the charges levelled against the appellants ranked as A-1 and A-2 and the third accused, the prosecution examined 13 witnesses and marked 24 documents and 6 material objects. After the evidence of the prosecution was over, the accused were questioned under Sec.313 of Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses, and they flatly denied the same as false. 3 exhibits were marked on the side of the defence. On consideration of the rival submissions made and scrutiny of the available materials, the trial Court found both the appellants/A-1 and A-2 guilty under Se 304(2) and 326 read with 34 of The Indian Penal Code and awarded the sentence as referred to above, while the third accused was acquitted of the charges framed against him. Aggrieved A-1 and A-2 have brought forth this appeal.
4. Advancing his arguments on behalf of the appellants, the learned Counsel interalia made the following submissions for the consideration of this Court:
The prosecution relied on the evidence of P.Ws.1 to 3. P.W.3 was treated hostile. The lower Court has clearly pointed out that the evidence of P.W.2 was not at all reliable, and thus, what was available for the prosecution is the evidence of P.W.1. P.W.1 was an injured and interested also. The evidence is available to indicate that they were on inimical terms with the accused for long number of years. The evidence would clearly indicate that the occurrence could not have taken place as put forth by the prosecution. The first complaint given by P.W.1 was suppressed by the prosecution, and thus, the alleged first information report before the trial Court was only the second information, which should have been rejected outright. In the same transaction, A-1 and A-2 sustained injuries. They were treated by P.W.8 Doctor Vishnuram, who has clearly deposed that the injuries sustained by A-1 was grievous. The prosecution has in no way explained the said injuries. But, the trial Court has made an attempt to explain the injuries in its own way. Immediately after the occurrence, the accused have gone to the Police Station. The prosecution marked Ex.P22 as if it was the complaint lodged by A-1 in the Police Station. But, the lower Court has clearly pointed out that it was not the complaint given by the first accused, and hence, it would also show that the complaint given by the first accused is also suppressed by the prosecution. There was an inordinate delay in making the complaint, since the occurrence has taken place at 11.00 A.M. on 16.7.94, but, the case was registered at 3.15 A.M. the next day namely 17.7.94. The prosecution has not even made an attempt to explain the said delay. Without proper investigation, the Investigating Officer has brushed aside the complaint given by the first accused as mistake of fact, which would clearly show that the investigation in the instant case could not have been fairly done, and hence, in view of all the above, the lower Court should have outrightly rejected the prosecution case, and thus, the appellants are entitled for an acquittal.
5. Strongly opposing all the contentions put forth by the appellants' side, the learned Government Advocate (Criminal side) with vigour and vehemence in his sincere attempt to sustain the conviction and sentence recorded by the Court below would submit that P.W.1 was not only an eyewitness to the occurrence, but she has sustained injuries; that she has given cogent and acceptable evidence, and her evidence has inspired the confidence of the trial Court; that apart from that, it was also corroborated by the medical evidence; that it is true that a complaint was given by the accused; that the prosecution has not suppressed anything in that regard, since the investigation agency has registered the case immediately as found under Ex.P22, proceeded with the investigation, enquired the witnesses and found it was one to be referred as mistake of fact, and this fact has been clearly spoken to by the Investigating Officer in his evidence, and hence, the contention of the appellants' side that the material in respect of the F.I.R. and the other materials in that regard have been suppressed was not called for; that there was no delay in lodging the complaint; that even if there was any delay, that has taken place in the ordinary course of events; that it is true that the injuries were found on A-1 and A-2 as spoken to by P.W.8 Doctor, who gave them treatment; that the prosecution has examined the medical person and has also filed the wound certificates in that regard; that the lower court has clearly pointed out that those injuries could have been sustained by the accused only after they made attack on the deceased and P.W.1; that even in their statements under Sec.313 of Cr.P.C., the accused have admitted their presence at the place of occurrence, the demand made by them for maintenance and the mutual attack on both sides, which would also indicate that the injuries caused to the accused has happened in that manner as spoken to by the accused at the time of questioning, and hence, it cannot be stated that the prosecution has not explained the injuries caused on the accused. Added further the learned Government Advocate that in view of the available evidence, which was acceptable and satisfactory, the lower Court has found them guilty under the respective provisions of the Penal Code and sentenced to undergo imprisonment, and hence, the judgment of the lower Court has got to be sustained.
6. After careful analysis of the evidence available and consideration of the rival submissions, this Court has to necessarily agree with the contentions put forth by the appellants' side.
7. The gist of the prosecution case as stated above, was that on the date of occurrence on 16.7.1994 at about 11.00 A.M., when P.W.1 and the deceased, her husband, were working in the field, A-1 to A-3 went over there and made a demand for partition, and followed by a wordy quarrel, the accused pelted stones on P.W.1 and the deceased Perianna Gounder; that they ran from the scene of occurrence; that the accused chased them and attacked them with stones and caused injuries, as a result of which Perianna Gounder died at 6.00 P.M. that day and P.W.1 who sustained injuries had medical treatment. In order to prove the case, the prosecution relied on the prime evidence namely P.W.1 as injured and P.Ws.2 and 3 as eyewitnesses. P.W.3 has turned hostile. The lower Court has clearly pointed out that the evidence of P.W.2 cannot be relied on, since it is not acceptable. Therefore, what was available for the prosecution was the evidence of P.W.1. It is an admitted position that the accused were treated by P.W.8 Doctor, who has deposed that he noticed the grievous injury on A-1, and he has also given certificates to that effect. P.W.1 either in the complaint given by her, on the basis of which a case was registered, or before the Court in evidence has not uttered even a single word about the injuries on the accused and how they were caused to A-1 in the said transaction, and thus, it would be clear that the grievous injuries noticed by the Doctor, which according to the prosecution happened in the same transaction, remained unexplained, as rightly pointed out by the learned Counsel for the appellants.
8. Secondly, the occurrence has taken place at about 11.00 A.M. P. W.1 has categorically admitted that when she was taken to the Government Hospital, Rasipuram, the police came there and enquired her. It is pertinent to note that it is a case where according to the prosecution, the deceased Perianna Gounder was severely injured, and he died at 6.00 P.M. Under such circumstances, one would expect the police officials to record a statement. While P.W.1 has come forward to state that she was enquired by the police at the Government Hospital, Rasipuram, neither the prosecution has come forward to bring forth the said complaint given by her, nor the Sub Inspector of Police has come forward to state that he made an enquiry on P.W.1 at the Government Hospital, Rasipuram. But, the Sub Inspector of Police has deposed that when on receipt of the intimation he went to the Government Hospital, Rasipuram, he was informed that P.W.1 was taken to the Government Hospital, Salem, and then, he proceeded there and recorded Ex.P1 statement, on the strength of which a case has been registered. All the above would cast a doubt whether Ex.P1 is the first statement given by P.W.1 at the Government Hospital, Salem. This doubt is not cleared by the prosecution.
9. Pursuant to the occurrence that took place at about 11.00 A.M., the deceased and P.W.1 were taken to the Government Hospital, Rasipuram, but, the case was registered at 3.15 A.M. the next day with a delay of nearly about 15 hours. It is pertinent to note that though the nearby Police Station is situated within 4 kilometers, such a delay was caused. The prosecution has not made any attempt to explain the same. The Court is of the view that the said delay would affect the case of the prosecution fatally.
10. According to the prosecution, Ex.P22 was the complaint given by the first accused to the police officials, on the strength of which a case was registered. It was contended by the appellants that Ex.P22 was not the complaint given by A-1, but, the original complaint given by A-1 has been suppressed. The learned Counsel for the appellants brought to the notice of the Court, the comment made by the trial Court that Ex.P22 could not have been the complaint given by the first accused. Hence, it goes without saying that the first complaint given by A-1 has also been suppressed for the reasons best known to the investigation agency.
11. Regarding the credit worthiness of the evidence of P.W.1, the lower Court has clearly made a comment, but it was otherwise. The death of Perianna Gounder out of homicidal violence is, therefore, not a fact in doubt. However, the fact as to how it happened or the manner in which the prosecution projected the case, is not proved before the trial Court beyond reasonable doubt. In such circumstances, it would be highly unsafe to sustain a conviction on the uncorroborated testimony of P.W.1, since the credit worthiness of her evidence is doubtful and questionable, according to the trial Court. Hence, without any hesitation, the Court has to set aside the judgment of the Court below. The Court is of the considered view that the appellants/A-1 and A-2 deserve acquittal of the charges levelled against them.
12. In the result, this criminal appeal is allowed, setting aside the judgment of the lower Court. The appellants/A-1 and A-2 are acquitted of the charges levelled against them. The bail bonds, if any, executed by the appellants/A-1 and A-2 shall stand cancelled.
1) The Judicial Magistrate No.II, Namakkal.
2) The Judicial Magistrate No.II, Namakkal
Thro' The Chief Judicial Magistrate, Salem.
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