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CENTRAL EXCISE versus BUILDERS INDUSTRIES

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Central Excise v. Builders Industries - Crl.A.475 of 1997 [2007] RD-TN 1829 (8 June 2007)

IN THE HIGH COURT OF JUDICATURE AT MADRAS



DATE : 08.06.2007

CORAM:

THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN Criminal Appeal NO.475 of 1997

The Assistant Commissioner of Central Excise

Preventive Unit,

Madras-600 034 .. Appellant vs.

1. M/s Builders Industries

Thiruvottiyur

Madras.

2. C.Mallikeswaran

Managing Partner

Builders Industries

Thiruvottiyur

Madras 600 019. .. Respondents

Prayer: This Criminal Appeal has been filed against the judgment dated 25.9.1996 passed in C.A.Nos 20 to 23 of 1992 on the file of the Principal Sessions Judge,Madras. For Appellant : Mr. N.P.Kumar Special Public Prosecutor for Central Excise Cases.

For Respondents : Mr. V.Balasubramaian and Mr.P.Ramamurthy JUDGMENT



By way of this appeal, the appellant challenges the Judgment of the learned Principal Sessions Judge, Chennai in C.A.Nos.20 to 23 of 1992 which had arisen out of a finding in C.C.No.1680 to 1683 of 1989 on the file of the Additional Chief Metropolitan Magistrate(E.O.2) Egmore, Madras-8.

2. The complaint before the Additional Chief Metropolitan Magistrate(E.O.2), Egmore, Chennai was preferred by the Assistant Collector of Central Excise, Chennai against the accused for an offence punishable under Sections 9(1)(a)(i), 9(1)(b)(i) and 9(1)(b)(b)(i) (four counts)of Central Excise and Salt Act 1944 (hereinafter referred to as "the Act") for the violation of payment of excise duty to the goods manufactured and fabricated by the accused. Admittedly, the first accused is engaged in the fabrication of steel structural for BHEL, Trichy, Ashok Leyland, Welmen Incondacent India Limited, South India Carbonic Gas India Limited, S.F.India Limited, Industrial Engineerings India Private Limited alias Foundary Limited, Hack Prestige Heavich Easan Limited. The second accused is the Managing Partner of the first accused. On the basis of the authorisation issued by the Assistant Collector of Central Excise Department Preventive Unit conducted a raid on 6.9.1982 in the premises of the first accused and the Officers of the Central Excise conducted a random check up of the accounts maintained by the accused firm for the year 1979 and it was brought to the light that the value of the clearance of goods for the year 1979 had exceeded the prescribed exemption limit of Rs.30 lakhs. According to the accused, the defence taken before the trial Court was that they were manufacturing the steel structural fabrications either out of the raw materials supplied by others or out of their own raw materials. According to the complainant, the first accused manufacturer had cleared the goods without obtaining Central Excise Licence and without payment of duty.

3. In C.C.1680 of 1989, P.Ws 1 and 2 were examined .Exs P1 to P13 were marked. In C.C.No.1681 of 1989 P.Ws 1 and 2 were examined and Exs P1 to P20 were exhibited. In C.C.No.1682 of 1989 Pws 1 and 2 were examined. Exs P1 to P20 were marked. In C.C.No.1683 of 1989, P.Ws 1 and 2 were examined. Exs P1 to P12 were marked. 4 In C.C.No.1680 of 1989, P.W.1 Romand, the then Superintendent of Central Excise Department(Preventive Unit) would depose that as per Ex P6, the accused have produced manufactured goods to the value of Rs.29,38,360.48ps for the year 1979-80 and as per the accounts under Exs P8,9 and 10, the accused ought to have paid Central Excise Duty to the tune of Rs.57,534.42ps for the value of the goods Rs.29,38,360/48ps manufactured by them and for the period from 8.1.1980 to 31.3.1980, the value of the goods manufactured by the accused comes to Rs.5,48,891/04 and after considering the representation made by the accused, the excise tax to be paid by the accused was fixed as Rs.13,180/01ps, but the accused without paying the above said central excise duty , they marketed the goods manufactured by them. 4b. P.W.2, Thiru C.Hari Rao, the then Superintendent of the Central Excise Department during the relevant period would depose that he had issued a show cause notice dated 1.1.1985 to the accused under the Original of ExP11.Ex P12 is the order of the departmental enquiry held by the Collector of Central Excise Department Thiru K.J.Raman. As per the said order of the Collector of Central Excise , the accused have been levied a fine of Rs.1,00,000/- under Section 173(q) of the Act and that evasion of tax by the accused for the year 1979-83 comes to Rs.4.97,222/24ps.

5. In C.C.No.1681 of 1989, P.W.1 is Mr.A.Romond, the Superintendent of Central Excise Department(Preventive Unit) . According to him, on 6.9.1982 at 11.00 a.m., he along with his colleagues had conducted a search in the premises of the accused in the presence of the second accused and as per the accounts maintained by the accused, they have manufactured and fabricated steel materials to the value of more than Rs.30 lakhs for the year 1980-81 and that the goods manufactured by the accused squarely comes under Tariff 68 and that he had seized the accounts maintained by the accused under Ex P2 Mahazar in the presence of witnesses and has also furnished a copy of Mahazar to the second accused and also recorded statement from A2. Ex P3 is the statement of A2 and as per the bills Exs P6 and P7 produced by the accused, the value of the goods manufactured by the accused for the year 1980-81 comes to Rs.36,99,661/62ps and that they are liable to pay the Central Excise duty to the tune of Rs.55,972/93ps. The Collector of Central Excise, after considering the representation made by the accused, had levied only Rs.22,722/97ps towards Central Excise duty. Exs P8 to P14 are the accounts maintained by the accused for the year 1980-81. 5b) P.W.2 Thiru C.Hari Rao, the then Superintendent of the Central Excise Department during 1985 would depose that a show cause notice dated 1.1.1985 was issued by him to both the accused under the original of Ex P15. Ex P16 is the order of the Collector of Central Excise Department dated 24.10.1985 wherein he has levied Rs.1,00,000/- towards Central Excise duty for the evasion of tax to the tune of Rs.4,97,222/24ps. The said levy was imposed for the evasion of Central Excise duty by the accused for the year 1979 to 1983.

6.In C.C.No.1682 of 1989, P.W.1 Thiru A.Romond, the Superintendent of Central Excise Department (Preventive Unit)who had conducted a search on 6.9.1982 at 11.00.a.m., in the premises of the first accused along with his colleagues and in the said raid, it was brought to light that the accused have manufactured steel goods to the value of more than Rs.30 lakhs for the year 1980-81 which comes under Tariff 68 . The accounts maintained by the accused Company were seized under Ex P2 mahazar in the presence of witnesses and after furnishing copy to the accused, Ex P3 statement was also recorded from A2. The accused have manufactured the goods from out of the raw materials supplied by the various companies like BHEL, Trichy, Ashok Leyland, Welmen Incondacent India Limited, South India Carbonic Gas India Limited, S.F.India Limited, Industrial Engineerings India Private Limited alias Foundary Limited, Hack Prestige Heavich Easan Limited. As per ExP6 and Ex P7 bills, the accused have manufactured goods worth of Rs.40,26,754/28 and marketed the same and that they are liable to pay the Central Excise duty to the tune of Rs.3,22,140/34 ps. Exs P8 and P9 are the accounts maintained by the accused for the year 1981-82. He has also seized Exs P10 to P17 accounts books under Mahazar Ex P2. 6b. P.W.2 , Mr.C.Hari Rao, the then Superintendent of Central Excise Department during the relevant period would depose that a show cause notice dated 1.1.1985 was issued to both the accused and in the departmental enquiry held on 24.10.1985 by the Collector of Central Excise Department Thiru K.J.Raman who has held that the accused had evaded the Central Excise Duty to the tune of Rs.4,97,222/24ps and accordingly has levied a fine of Rs.1,00,000/- under Section 173(q) of the Act and that the evasion of the tax is relating to the period from 1979 to 1983.

7. In C.C.No.1683 of 1989, P.W1 Thiru A.Romond, the Superintendent of Central Excise Department(Preventive Unit) would depose that the accused have manufactured steel goods to the value of more than Rs.30 lakhs and from the records seized under Exs P2 to P5, it came to light that the accused have manufactured the goods with the help of raw materials supplied by BHEL, Trichy, Ashok Leyland, Welmen Incondacent India Limited, South India Carbonic Gas India Limited, S.F.India Limited, Industrial Engineerings India Private Limited alias Foundary Limited, Hack Prestige Heavich Easan Limited. As per Ex P6,P8 and P9 for the year 1982-83, the accused have manufactured the goods to the value of Rs.17,39,736/49ps. But they have evaded the central excise duty of Rs.1,39,178/92ps and the Collector of Central Excise Department has also levied a fine of Rs.1,00,000/- to the accused for the violation of Section 9(2) r/w 10 & 7A of the Act. 7b. P.W.2 Thiru C.Hari Rao, the then Superintendent of Central Excise has deposed to the fact that a show cause notice was issued to the accused on 1.1.1985 under the original of Ex P10 and that as per the departmental enquiry conducted by the Collector of Central Excise Thiru K.J.Raman, an order was passed under Ex P11 wherein the Collector of Central Excise has stated that the accused have evaded central excise duty to the tune of Rs.4,97,222/24ps and accordingly levied a fine of Rs.1,00,000/- under Section 173(q) of the Act and that the evasion of tax by the accused relates for the year 1982-83.

8. On the above evidences, when incriminating circumstances under Section 313 Cr.P.C. were put to the accused, they would deny their complicity with the crime.

9. The learned trial Judge, after going through the evidence both oral and documentary let in before him, has come to a conclusion that the guilt against the accused has been proved beyond any reasonable doubt and accordingly convicted the accused under Central Excise Rules 174 r/w Section 9(1)(a)(2) and also under Section 9(1) r/w 9(1)(b)(2)of the Act and under Rule 173-F r/w Section 9(1)(b)(ii) and Rule 173-B r/w Section 9(1)(bb)(ii), Rule 173 C r/w Section 9(1)(bb)(ii),Rule 173-G r/w Section 9(1)(bb)(ii) and sentenced to imprisonment till the rising of the Court and also slapped a fine of Rs.500/- under each count with default sentence in all the above said Calendar cases. Aggrieved by the findings of the learned trial Judge, the accused have preferred an appeal before the Court of Sessions, Chennai in C.A.Nos.20 to 23 of 1992. The learned first appellate Judge, after meticulously scanning the evidence let in before the trial Court and also after due deliberation to the arguments advanced by the learned Special Public Prosecutor and the learned counsel appearing for the appellants has held that there was no evidence let in by the prosecution to show that the goods manufactured by the accused exceeded the limit prescribed under the Act and that the trial Court without giving due consideration for the Notification Nos.118/75 issued under Rule 8(1) of the Central Excise Rules, 1944, the Central Government in the Ministry of Finance(DR &T) which has exempted goods falling under Item No.68 of the First Schedule to the Central Excise and Salt Act 1944(1 of 1944) and also the Notification No.119/75 dated 30.4.1975 issued by the Central Government in the Ministry of Finance wherein as per rule 8(1) of the Central Excises Rules,1944,the Central Govoernment hereby exempted the goods falling under Item No.68 of the First Schedule to the Central Excises and Salt Act 1944(1 of 1944), manufactured in a factory as a job work from levy of excise duty and has held that the accused were not liable under the charge levelled against them and accordingly acquitted both the accused thereby allowing the appeal and setting aside the findings of the learned trial Judge. Aggrieved by the findings of the learned Principal Sessions Judge in C.A.Nos.20 to 23 of 1992, the Central Excise Department/complainant has preferred this appeal.

10.Now the point for consideration in this appeal is whether the findings of the learned Principal Sessions Judge in C.A.Nos.20 to 23 of 1992 is liable to be set aside for the reasons stated in the memorandum of appeal?

11. The Point: Admittedly, the goods manufactured and fabricated by the accused comes under Tariff NO.68. Even according to the evidence of P.W.1, the raw materials for the manufacture and fabrication of steel goods to the accused were supplied by various companies like BHEL, Trichy, Ashok Leyland, Welmen Incondacent India Limited, South India Carbonic Gas India Limited, S.F.India Limited, Industrial Engineerings India Private Limited alias Foundary Limited, Hack Prestige Heavich Easan Limited. The learned first appellate Judge has allowed the appeal only on the ground that as per Notification No.119/75 -CE, dated 30.4.1975 issued by the Central Excise, Ministry of Finance, the accused are liable to be exempted from the Central Excise duty.

12. The learned Special Public Prosecutor for Central Excise cases would contend before this Court that Notification No 119/75 came into force only in the year 1985 and hence the accused are not entitled to take shelter under the benefits conferred in the above notification. This contention of the learned Special Public Prosecutor cannot be upheld because absolutely there is no pleadings in the grounds of appeal to the effect that the Notification No.119/75 dated 30.4.1975 came into force only in the year 1985 and that the benefits conferred under the above said notification cannot be extended or availed by the accused. It is pertinent to note here that even before the learned Sessions Judge, Chennai in the first appeal, the said defence was not taken by the learned Special Public Prosecutor, who had argued the appeal. If the Notification 119/75 dated 30.4.1975 would apply to the accused then the entire charge levelled against them will go, as correctly held by the learned Principal Sessions Judge, Chennai. It is pertinent to note that the accused had already undergone the imprisonment till rising of the Court as ordered by the learned trial Judge.

13. Under such circumstances, I do not find any reason to interfere with the well considered order of the learned Principal Sessions Judge in C.A.Nos.20 to 23 of 1992 which is neither illegal nor infirm. Point is answered accordingly.

14. In the result, the appeal fails and the same is hereby dismissed confirming the judgment dated 25.9.1996 passed in C.A.Nos 20 to 23 of 1992 on the file of the Principal Sessions Judge,Madras.

15. The learned Special Public Prosecutor for Central Excise cases would submit that the observation made in this Judgment shall not affect the departmental proceedings pending against the accused before the appellate authority against the order passed by the Collector of Central Excise Department. The submission made by the learned Special Public Prosecutor has got force and it is made clear that the observations made in this Judgment shall not have any impact on the Departmental proceedings pending before the appellate authority. sg

TO

1. The Principal Sessions Judge, Chennai

2. The Additional Chief Metropolitan Magistrate, E.O.2, Egmore, Chennai 3. -do- the Chief Metropolitan Magistrate, Egmore,Chennai 4.The Assistant Commissioner of Central Excise,Preventive Unit,Chennai-33 5. The Special Public Prosecutor for Central Excise Cases, Madras. Crl.A.No.475/1997

The short facts of the case relevant for the purpose of deciding this appeal are as follows: i) P.W.1 was residing at Kolathupalayam Village, wherein he had landed properties. On 8.3.2000 he went to cut leaves in his land and on his way to his land he saw the deceased. After cutting the leaves, P.W.1 returned from his land with leaves and saw the deceased proceeding in his cycle. when the deceased reached the main road from canal, P.W.1 was nearing the bridge. At the time the deceased was crossing A1's rice mill, A1 to A3 and one Palanisamy Gounder and Ramalingam were standing there. A1 was armed with knife and others were armed with stick. The accused intercepted the deceased and caught hold of him and from road dragged him into the rice mill. Palanisamy attacked the deceased on the fore head of the deceased with stick. Ramalingam beat on the chest of the deceased with stick. When deceased tried to escape from there, Palanisamy again best the deceased. But, that attack fell on A2 and A2 fell down. A2 beat the deceased. At that time, P.W.1 raised alarm. A1 cut the deceased and deceased fell down. Palanisamy Gounder and Ramalingam kicked the deceased on his flank. Then the accused ran away towards western side. ii) On hearing P.W.1's hue and cry, P.W.2 and P.W.3 came to the scene of occurrence. P.W.3 informed about the occurrence to P.W.4, who is the brother of the deceased. P.W.4 came to the scene of occurrence. P.W.5 arranged a car and took the injured to the hospital for giving treatment. Injured was admitted in C.K.Hospital at Erode at 12.30 p.m. on 8.3.2000. At 2.30 p.m. injured/Sathasivam without responding to the treatment died in C.K.Hospital. P.W.1 went to the Kodumudi Police Station and gave a written complaint-Ex.P.1. P.W.5 is the driver, who took the deceased to C.K.Hospital at Erode. iii) P.W.13 is the Sub-Inspector of Police, who had registered a case in Cr.No.77/2000 under Section 341, 342 and 302 IPC on 8.3.2000 at 6.00 p.m. on the basis of the complaint-Ex.P.1. On 9.3.2000 at 1.00 am, P.W.13 went to the Erode Government Hospital and recorded the statement of A3 and based on the statement of P.W.13 registered a case in Cr.No.78/2000 under Section 341, 324 IPC and that report is Ex.P.24. The First Information Report is Ex.P.25. iv) P.W.15, the Inspector of Police, Malayapalayam incharge of Kadumudi Police Station, on receipt of the First Information Report, went to C.K.Hospital and conducted inquest over the dead body in the presence of panchyatars. Ex.P.27 is the inquest report. P.W.9 is the Doctor, who had treated the injured-Sathasivam at C.K.Hospital till his death at 2.30 p.m. on 8.3.2000. Dr.Vijayakumar had sent the death intimation to Kodumudi Police Station. P.W.11 is the Doctor, who had conducted postmortem over the corpse of Sathasivam on 9.3.2000 at 8.20 am and issued Ex.P.22-Postmortem certificate. The Doctor has opined that the cause of death is due to head injury and other injuries. P.W.15 went to the scene of occurrence and prepared the observation mahazar and drew rough sketch-Ex.P.27 and also seized blood stained earth and sample earth M.O.1 and 2 and bicyle-M.O.6 under mahazar and also examined the witnesses and recorded their statements and arrested A2 and A3 at Erode Government Hospital and also seized M.O.10 to M.O.13. v) P.W.16 is the successor of P.W.15. A1 surrendered before the Judicial Magistrate on 20.3.2000 and P.W.16 took the custody of A1 and recorded his confession. On the basis of the confession statement of A1, P.W.16 recovered M.O.3-blood stained aruval under Ex.P.6-Mahazar. After observing the other formalities, P.W.16 had completed his investigation and filed final report. P.W.16 closed the First Information Report in Cr.No.78/2000 (complaint preferred by A3) as mistake of fact. On 6.11.2000 P.W.16 received a letter from Joint Secretary(Home) to conduct further investigation. On 9.11.2000 P.W.16 filed a petition to conduct further investigation in Cr.No.77/2000 (complaint preferred by P.W.1) before the Judicial Magistrate, Kodumudi and obtained an order to conduct further investigation on 10.11.2000. P.W.17 took up further investigation and after completing the investigation filed charge sheet against the accused 1 to 3 under Sections 341 and 302 r/w 34 IPC. vi) The case was taken on file by the learned Judicial Magistrate, Kodumudi in PRC.No.7/2000 and on appearance of the accused copies under Section 207 of Cr.P.C were furnished to the accused and since the case is triable by the Court of Sessions, the learned Magistrate had committed the case to the Additional Session Judge(FTC.I), Erode, who had framed the charges under Section 341 and 302 r/w 34 IPC against A1 to A3. When questioned the accused denied their complicity in the crime. On the side of the prosecution P.W.1 to 17 were examined, Ex.P.1 to 31 and M.O.1 to 13 were marked and on the side of the accused D.W.1 was examined and Ex.D.1 to 6 were marked. Vii) When incriminating circumstances were put to the accused under Section 313 of Cr.P.C, they pleaded innocence. On the basis of the available evidence both oral and documentary, the learned Additional Session Judge(FCT.I), Erode has come to a conclusion that A1 to A3 are liable to be convicted under Section 341 and 302 r/w 34 IPC and conbsequently convicted and sentenced them to undergo one month simple imprisonment under Section 341 IPC each and sentenced under Section 302 r/w 34 IPC to undergo life imprisonment each of the accused. Aggrieved by the findings of the learned Additional Sessions Judge,(FTC.I), Erode, the accused have preferred this Appeal.

3. Now the point for determination in this Appeal is whether the conviction and sentence under Section 341 and 302 r/w 34 IPC against the accused 1 to 3 is liable to be set aside for the reasons sated in the memorandum of Appeal?

4.The point:- Originally there were five accused viz., 1.Sengottaiyan, 2.Palanisamy, 3.Ramalingam, 4.Muthayee Ammal and 5.Kolandaisamy Gounder, cited in the First Information Report as well as in the charge sheet filed under Section 173(2) of Cr.P.C. A2's son-in-law viz. Kathirvellu had presented a petition dated 13.3.2000 to the Secretary to the Home Department, Tamil Nadu stating that the accused Palanisamy Gounder and the accused Ramalingam were innocents and they were not present at the time of occurrence and an enquiry was conducted by the CB-CID Police, Coimbatore and the report of the DSP was accepted by the Additional Director General of Police(Crime), CB-CID. According to the said report, the accused Palanisamy and the accused Ramalingam were not present at the place of occurrence at the time of occurrence. The Inspector of Police, Kodumudi Police Station filed M.P.1439/2000 before the Judicial Magistrate, Kodumudi under Section 173(8) of Cr.P.C for permitting to conduct further investigation in Cr.No.77/2000 (complaint preferred by P.W.1) on the file of Kodumudi Police Station and the said petition was allowed and on that basis, P.W.16 has conducted further investigation and filed fresh charge sheet-Ex.P.30 only against A1-Sengottaiyan, A2-Muthayee Ammal and A3-Kolandaisamy Gounder. The charge sheet was dropped against the accused Palanisamy and Ramalingam on the ground that they were not present at the time and place of occurrence. Ex.P.29, petition of the Inspector of Police under Section 173(8), contains the report of the Additional Director of CB-CID, as per the report of the Additional Director of CB-CID, on the date of occurrence i.e., on 8.3.2000, A3-Kolandaisamy Gounder and his wife Muthayee Ammal(A2) and their son Sengottaiyan(A1) were drying the turmeric in the disputed place without heeding to the words of the deceased-Sathasivam and since the deceased-Sathasivam had objected the accused, for drying turmeric in the disputed place, all the three accused had attacked him, which resulted in the death of Sathasivam in the hospital and the complaint was preferred by the brother of the deceased-Sathasivam after consulting the advocates and after implicating Palanisamy Gounder and his son Ramalingam as accused, the murder case was registered against the above said five accused. It has been further stated in the report that on investigation it was brought to light that on the date of occurrence at the time of occurrence the accused Palanisamy and his son Ramalingam were not present at the scene of occurrence, but they were working in the turmeric field some four kilometers away from the place of occurrence and they retuned only at 6.30 p.m. on the date of occurrence to their house. The above said report was also filed along with Ex.P.29 by P.W.16, which cuts at the root of the prosecution case for the following reasons: i) According to P.W.1 to 3 the place of occurrence is the rice mill belonging to A1 and at the time of occurrence A1 had assaulted the deceased-Sathasivam with knife and the accused Palanisamy and accused Ramalingam (Who have been dropped subsequently in the re-investigation from the charge sheet) also attacked the deceased-Sathasivam with wooden stick on the head and chest of the deceased respectively and A2 had assaulted Sathasivam with a wooden stick and Palanisamy and Ramalingam kicked Sathasivam on the flanks. According to P.W.1 the accused had way laid Sathasivam and dragged him into the rice mill belonging to A1 and assaulted him. But in the cross-examination, P.W.1 would admit that the place where the turmeric were boiled and dried is situated some 100 feet away from the rice mill of A1. P.W.2 and 3 have also deposed to the fact that all the accused along with the accused Palanisamy and the accused Ramalingam assaulted the deceased-Sathasivam. P.W.3 has also corroborated that A1 to A3 along with Palanisamy and Ramalingam have assaulted the deceased-Sathasivam. According to P.W.3, the motive for the occurrence was that there was some enmity prevailing between Palanisamy and Ramalingam on one hand and the accused on the other in respect of a ditch and the motive for the occurrence against A2 & A3 and the deceased-Sathasivam was in respect of 5 cents of lands. In the cross-examination, P.W.3 would depose that about 25 cents of land belong to one Kolandaivel Samboornam, who had appointed the deceased-Sathasivam as his power of agent, already had executed the entire 25 cents in favour of A3, but P.W.3 has purchased 5 cents in the same survey number in the above said 25 cents of land from the power of attorney agent deceased-Sathasivam and there was a civil dispute pending before the civil court at Kodumudi. P.W.4, the brother of the deceased-Sathasivam, has also deposed to the fact that on the basis of the power deed deceased-Sathasivam had executed a sale deed in favour of milk society in which P.W.3 is the president and that a civil dispute is pending between A1-Sengottaiyan and P.W.3. Ex.P.2-sale deed will go to show that the deceased-Sathasivam had executed the sale deed as a power of attorney for Sambooranam in favour of P.W.3-Palanisamy, in respect of 5 cents in survey No.542/16 of Kulathupalayam village. According to P.W.1, the entire 25 cents in the said survey number property was purchased by A1 and had constructed a rice mill thereon, but through the deceased-Sathasivam as power of attorney for Sambooranam, another sale deed in favour of P.W.3 was executed for 5 cents. But P.W.3 would depose in the cross-examination that he is not aware as to the purchase of entire 25 cents of land for Rs.1,10,000/- by A1. As per Ex.P.29, as per the investigation of CB-CID both the erstwhile accused Palanisamy and Ramalingam were not present at the place of occurrence, that is why, they have been dropped in the charge sheet filed after reinvestigation under Section 173(8) of Cr.P.C. On the other hand, P.W.1 to 3, the eye witnesses, would depose that the said Palanisamy and Ramalingam also assaulted the deceased/Sathasivam at the place of occurrence. So the evidence of P.W.1 to 3 cannot be believed at all. ii) As per the evidence of P.W.9, the Doctor, who had deposed on behalf of Doctor Vijayakumar, who had conducted autopsy, there were three cut injuries on the head to bone deep, and stab injury behind the left ear and a contusion on the right fore head and another contusion on the left fore head and an aberration on the left forearm and left thigh. In the cross-examination, the Doctor-P.W.9, who had admitted and treated the deceased/Sathasivam at about 12.30 p.m. On 8.3.2000 at C.K.Hospial Erode, has deposed that Sathasivam had expired due to massive heart attack. But, P.W.11-Doctor, who had issued Postmortem certificate-Ex.P.22, would depose that the deceased-Sathasivam would have died due to the injuries he had sustained on the head. So, with regard to the cause of death also there is a discrepancy between the evidence of P.W.9-Dr.S.K.Krishnan and P.W.11-Dr.N.Sengottaiyan. iii) Yet another point to be noted is the fracture of occipital bone on the skull seen as per Ex.P.22-Postmortem report. According to P.W.1 to 3, the other two accused viz. Palanisamy and Ramalingam were also assaulted with wooden stick on the head of the deceased/Sathasivam. But according to the prosecution, the said Palanisamy and Ramalingam, who were previously shown as accused in the charge sheet before re-investigation were not at all present at the place of occurrence at the time of occurrence. Under such circumstances, we cannot give any credit to the evidence of P.W.1 to 3 to arrive at a conclusion that the occurrence had occurred in the manner as alleged by them. iv) The next point to be noted is that A3 also sustained injury and according to P.W.16-Investigation Officer, a case under Cr.No.78/2000 of Kodumudi Police Station was registered on the complaint made by A3 and Ex.P.30 is the file relating to Cr.No.78/2000. But, without investigating the same, the said First Information Report was closed as mistake of fact. The learned counsel appearing for the accused/appellants relied on the decision reported in AIR 1976 SC 2263 (Lakshmi Singh and others Etc., Vs. State of Bihar) and contended that non-explanation of injury sustained by the accused is fatal to the prosecution case. According to P.W.15, then Inspector of Police, who had conducted a part of the investigation in this case, A2-Muthayee Ammal and A3-Kolandaisamy Gounder were arrested in the Government Hospital while they were under treatment, but their injuries were not at all explained by the prosecution. The relevant observation in the above said dictum by the Honourable Apex Court runs as follows:- "It is well settled that fouler the crime, higher the proof, and hence in a murder case where one of the accused is proved to have sustained injuries in the course of the same occurrence, the non-explanation of such injuries by the prosecution is a manifest defect in the prosecution case and shows that the origin and genesis of the occurrence had been deliberately suppressed which leads to the irresistible conclusion that the prosecution has not come out with a true version of the occurrence. This mater was argued before the High Court and we are constrained to observe that the learned Judges without appreciating the ratio of the Court in Mohar Rai Vs. State of Bihar, (1968 (3) SCR 525 = AIR 1968 SC 1281) tried to brush it aside on most untenable grounds. The question whether the Investigating Officer was informed about the injuries is wholly irrelevant to the issue particularly when the very Doctor who examined one of the deceased and the prosecution witnesses is the person who examined the appellant Dasrath Singh also. In the case referred to above, this Court clearly observed as follows: "The trial Court as well as the High Court wholly ignored the significance of the injuries found on the appellants. Mohar Rai had sustained as may as 13 injuries and Bharath Rai 14. We get it from the evidence of P.W.15 that he noticed injuries on the person of Mohar Rai when he was produced before him immediately after the occurrence. Therefore the version of the appellants that they sustained injuries at the time of the occurrence is highly probabilised. Under these circumstances the prosecution had a duty to explain those injuries. ....... In our Judgment the failure of the prosecution to offer any explanation in that regard shows that evidence of the prosecution witnesses relating to the incident is not true or at any rate not wholly true. Further those injuries probabilise the plea taken by the appellants." This court clearly pointed out that where the prosecution fails to explain the injuries on the accused, two results follow:(1) that the evidence of the prosecution witnesses is untrue; and (2) that the injuries probabilise the plea taken by the appellants" .................................... .............................................................. In a situation like this when the prosecution fails to explain the injuries on the person of an accused, depending on the facts of each case, any of the three results may follow: (1) That the accused had inflicted the injuries on the members of the prosecution party in exercise of the right of self defence. (2) It makes the prosecution version of the occurrence doubtful and the charge against the accused cannot be held to have been proved beyond reasonable doubt. (3) It does not affect the prosecution case at all. ............................................................... .................................................................... .... It seems to us that in a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstances from which the Court can draw the following inferences: (1)That the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version; (2)that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; (3)that in case there is a defence version which explains the injuries or, the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one." Further the occurrence had taken place at 11.00 am on 8.3.2000, but P.W.1 has preferred Ex.P.1-complaint only at 6.00 p.m. After having deliberations with P.W.4 and that other advocates. The preponderance of possibilities seems to indicate that not only Palanisamy and Ramalingam were falsely implicated in this case earlier, but also the present accused 1 to 3 have been falsely implicated. The evidence of P.W.1 to 3 will clearly go to show that they have been falsely implicated, the above said Palanisamy and Ramalingam in their evidence, by saying that they also assaulted the deceased with wooden stick on the head and chest respectively at the time of occurrence along with A1 to A2. There is no overtact attributed against A3, whereas the overtact attributed against A2 is that she had assaulted the deceased-Sathasivam with a wooden stick on the hands. P.W.3 in his evidence has stated that A2 had assaulted with a wooden stick on the left hand of Sathasivam. But, P.W.16, the Investigation Officer, has stated in his evidence that he had not seen any bleeding injury on the left hand of the deceased-Sathasivam.

6. The delay in preferring the First Information Report, the non-explanation of the injuries sustained by A3 and the implication of Palanisamy and Ramalingam falsely into the crime will cast cloud on the investigation of the prosecution case and the benefit of doubt shall go to the accused. We are of the constrained opinion that the prosecution has miserably failed to prove the guilt of the accused under Section 341 and 302 r/w 34 IPC beyond any reasonable doubt.

7. In the result, the appeal is allowed and the conviction and sentence passed against the appellants herein-A1 to A3 by the learned Additional Sessions Judge,(FTC-I), Erode in S.C.No.174/2001 is hereby set aside and the appellants herein/A1 to A3 are acquitted from the charges levelled against them. Bail bonds stand cancelled. ssv

To,

1.The Addl.District & Sessions Judge, FTC-I, Erode. 2.The District & Sesions Judge, Erode.

3.The Judicial Magistrate, Kodumudi, Erode.

4.The Chief Judicial Magistrate, Erode.

5.The Sub-Inspector of Police, Kodumudi, Erode.

6.The Superintendent of Central Prison for women, Vellure.(for A2) 7.The Superintendent of Central Prison, Coimbatore, (for A1 & A3) 8.The Public Prosecutor, High Court, Madras.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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