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Seeni alias Srinivasan v. The State, by - Criminal Appeal No.274 of 1999  RD-TN 2014 (20 June 2007)
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 20/06/2007
THE HONOURABLE MR.JUSTICE D.MURUGESAN
THE HONOURABLE MR.JUSTICE T.SUDANTHIRAM
Criminal Appeal No.274 of 1999
1.Seeni alias Srinivasan,
S/o.Periya Karuppan Moopar
S/o.Periya Karuppan Moopar
7.Samudram alias Samudraraj,
S/o.Marutha Moopar alias Kangani Moopar ... Appellant Accused 1 to 7 vs.
The State, by
The Inspector of Police,
Aruppukkottai Taluk Police Station,
(Crime No.365 of 1997) ... Respondent Complainant Appeal under Section 374 of the Code of Criminal Procedure against the judgment of the learned Principal Sessions Judge, Kamarajar District at Srivilliputtur, made in S.C.No.123 of 1998, dated 24.02.1999. For Appellant ... Mr.B.Sriramulu,
Senior Counsel for
For Respondent ... Mr.M.Daniel Manoharan,
(Judgment of the Court was delivered by D.MURUGESAN,J) The appellants, who are accused Nos.1 to 7 in S.C.No.123/1998 on the file of the Principal Sessions Judge, Kamarajar District at Srivilliputtur, were tried for the charges, found guilty and sentenced to undergo imprisonment as detailed below.
Finding, Conviction & Sentence
Accused 1 to 7
Section 148 IPC
Found guilty, convicted thereunder and sentenced to pay Rs.500/- each, in default to undergo three months simple imprisonment each. Accused 1 to 7
Section 452 IPC
Found guilty, convicted thereunder and sentenced to undergo two years rigorous imprisonment each and to pay a fine of Rs.500/- each, in default to undergo two months simple imprisonment each.
Accused 1 to 7
Section 302 r/w Sec.34 IPC
Found guilty, convicted thereunder and each of them were sentenced to undergo life imprisonment and to pay Rs.1000/- , in default to undergo six months simple imprisonment.
Accused 1 to 7
Section 3(1) of Tamilnadu Properties (Prevention of Damages & Loss) Act Found not guilty and acquitted of the charges.
Challenging the above said conviction and sentence, the appellants have preferred this appeal.
2.On the basis of the complaint Ex.P-1, given by P.W.1, the Investigating Officers P.W.14 had taken up the investigation and finally P.W.15, another investigation officer, laid the charge sheet against all the appelants.
3.Before the trial court, the prosecution has examined P.Ws.1 to 15, marked Exs.P-1 to P-21 and M.Os.1 to 12. The sum and substance of the case of the prosecution is that Appellant Nos.2 to 6 are the close relatives of Appellant No.1 and appellant No.7 is his close friend. Appellant No.1 by name Srinivasan married one Parameswari, the daughter of accused No.5 Raman, in the year 1981. On 27.02.1997, appellant No.1 again married one Shanthi, P.W.2, the daughter of the deceased Velusamy and P.W.1, and registered the said marriage at Tiruchuzhi Registrar's Office. After the marriage, appellant No.1 lived with P.W.2 for only two days and thereafter he lived with his first wife. The registration of the marriage with P.W.2 was also cancelled by him on 25.06.1997. This was questioned by the deceased. As the deceased had questioned the appellant No.1 as to the cancellation of the registration of marriage with P.W.2, on 25.08.1997 at about 10.45 p.m., all the accused armed with bill hooks, knives and wooden logs entered forcibly into the house of the deceased, dragged the deceased out of the house and inflicted injuries on various parts of his body, to which he succumbed later.
4.P.W.1, the wife of the deceased, gave Ex.P-1 complaint at 00.30 hours on 26.08.1997 to P.W.13, the Sub-Inspector of Police, Aruppukkottai Town Police Station, based on which P.W.13 registered a case in Crime No.365/1997 under Sections 147, 148 and 302 IPC and prepared Ex.P-18, the Express FIR and despatched the same to the Court. P.W.14, Inspector of Police, took up the investigation, visited the place of occurrence, made an observation and prepared Ex.P-4, the Observation Mahazar and drew Ex.P-20, the rough sketch. He caused the place of occurrence photographed with the help of P.W.7, the photographer and Ex.P-11 (series) are the photographs. He conducted inquest over the dead body in the presence of witnesses and panchayatdars and prepared Ex.P-21, the Inquest Report. Thereafter, he sent the body to postmortem. In the presence of P.W.5 and another, P.W.14 recovered M.Os.1 to 3 under Ex.P-5 mahazar, M.Os.4 and 5 under Ex.P-6 mahazar and M.Os.6 & 7 and under Ex.P7 mahazar and M.O.8 under Ex.P-8 and M.Os.9 and 10 under Ex.P-9 mahazar from the place of occurrence.
5.P.W.9, the Doctor attached to Aruppukkottai Government Hospital, conducted postmortem over the body of the deceased Velusamy and gave Ex.P14, the postmortem certificate. In continuation of the investigation, on 27.08.1997 at about 9.00 a.m., P.W.14 arrested accused Nos.2 and 3 and sent them for judicial custody. On the same day, at about 10.30 a.m., P.W.14 arrested accused Nos.4 and 5, who were under treatment in the Government Hospital, and sent them also for judicial custody. Thereafter, P.W.15, Inspector of Police, took up the investigation. Accused Nos.1, 6 and 7 surrendered before the Court. Examining some other witnesses, P.W.15 filed the final report before the Court.
6.On completion of the evidence of the prosecution, the accused were questioned under Section 313 Cr.P.C. about the incriminating circumstances found in the evidence of prosecution witnesses and they denied each and every circumstance as false and pleaded not guilty. Though no witness was examined on the side of the accused, three Exhibits D-1 to D-3 were marked. Considering the evidence of P.Ws.1 and 2, coupled with the evidence of the Doctor P.W.9, relating to the injuries found on the deceased, the learned Sessions Judge had convicted all the appellants for the offences referred to above and sentenced them as stated earlier. It is against the said judgment of the learned Principal Sessions Judge, Srivilliputtur, the present appeal has been filed.
7.Mr.B.Sriramulu, learned senior counsel, appearing for all the appellants had submitted that even as per the prosecution, accused No.4, by name Sannasi and accused No.5 Raman were injured in the same transaction and they were treated by P.W.8, the Doctor, and Exs.P-13 and P-12 are the Wound Certificates given to them, respectively by P.W.8, the Doctor. Learned Senior Counsel further submitted that in fact the injuries sustained by accused No.5 Raman were all on vital parts and there is absolutely no explanation as to the injuries sustained by accused Nos.4 and 5 and in the absence of satisfactory explanation as to the injuries sustained by accused Nos.4 and 5, the entire prosecution case should only be disbelieved.
8.Adding to the above, the learned senior counsel would submit that as the occurrence had taken place just in front of the house of the deceased, earlier a complaint was given by one Ananth, who is living just near to the place of occurrence, and the same has been suppressed by the prosecution. He would submit that in fact, on the basis of the said complaint, accused Nos.4 and 5 were sent for treatment to P.W.8, the Doctor, with Police Medical Memos and they were treated at about 00.30 hours on 26.08.1997 as per Exs.P-12 and P-13 and contrary to the above, the prosecution has now made up a case as if accused Nos.4 and 5 had got themselves admitted in the hospital and on receiving an intimation from the hospital authorities, P.W.13, the Sub-Inspector of Police by name Vijayakumar, went to the hospital and recorded a statement from accused No.5 at about 1.15 a.m. and registered a case in Crime No.366/97 under Sections 341 and 354 IPC and prepared Ex.P-19 FIR. It is the submission of the learned senior counsel, having regard to the evidence of P.W.8, the Doctor, the above case of the prosecution about the manner in which Ex.P-19 FIR has been registered has to be rejected totally as false. In support of his submission that the non-explanation of the injuries found on accused 4 and 5 is fatal to the prosecution case, the learned senior counsel placed reliance on the judgments of the Supreme Court reported in AIR 1976 SC 2263 (Lakshmi Singh vs. State of Bihar) and 2003 SCC (Cri) 1426 (Lakhwinder Singh vs. State of Punjab).
9.Apart from the above, the learned senior counsel would also draw our attention as to Ex.P-19, namely, the prosecution has not filed the very complaint recorded by P.W.13, the Sub-Inspector of Police, from accused No.5 before the Court and consequently the said complaint was not marked. He would further add that the original of Ex.P-19 FIR, registered by P.W.13, has not been filed before the Court, as admittedly only true copy has been filed and even there is no signature found in Ex.P-19. In these circumstances, according to the learned senior counsel, the very case of the prosecution is doubtful in its entirety and there is every possibility of falsely roping in as many as accused in the case.
10.The learned senior counsel would also draw our attention as to the non-examination of independent witnesses. According to him, though the neighbour by name Adaikalam was present at the time of occurrence, he has not been examined. Learned senior counsel would fairly contend that it is not a general rule that in all cases the Court should doubt the prosecution for non- examination of independent witnesses. But, having regard to the above factual aspects, the non-examination of the said Adaikalam assumes importance as the same throws serious doubt on the genesis of the First Information Report.
11.We have heard the learned Additional Public Prosecutor on the above aspects. According to the learned
Additional Public Prosecutor, Ex.P-1 complaint, given by P.W.1, categorically explains the injuries found on accused Nos.4 and 5 and P.W.2 has also spoken as to the attempt made by the deceased on the accused. It is the submission of the learned Additional Public Prosecutor that this Court can very well rely on Ex.P- 1 and the evidence of P.W.2 and safely come to a conclusion that the injuries found on accused Nos.4 and 5 have been explained by the prosecution. Insofar as the submission of the learned senior counsel as to Ex.P-19, the learned Additional Public Prosecutor has submitted that inasmuch as the evidence of P.W.13, the Sub-Inspector of Police who recorded the complaint from accused No.5, is categorical that he went to the hospital on receipt of the intimation from the hospital authorities and recorded the statement of accused No.5 and it must necessarily be believed and therefore the prosecution case has to be accepted. He would further submit that on the facts of the given case, non- examination of independent witnesses would not in any way affect the case of the prosecution. On the above submissions, he supported the conviction and sentence imposed on the appellants by the trial court.
12.We have carefully considered the rival submissions and perused the evidence and other materials available on record.
13.Before we delve upon the facts of this case, we would like to discuss the law laid down by the Apex Court as to the non-explanation of the injuries found on the accused persons. In the case in Lakshmi Singh vs. State of Bihar (AIR 1976 SC 2263), the Supreme Court has enunciated the principle as to the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation and the inferences the Court can draw, as under:
(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 on 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. ..." That was a case where the Supreme Court was considering an appeal on conviction under Section 302 IPC and the accused was sentenced to life imprisonment. An argument was advanced before the Supreme Court that one of the accused had sustained injuries along with the deceased but however the prosecution had not explained the injuries found on the accused. In that circumstances, the Supreme Court had held that non-explanation of the injuries found on the witnesses would be fatal to the prosecution case. The very same principle has been reiterated by the Supreme Court in yet another judgment reported in 2003 SCC (Cri) 1426 (Lakhwinder Singh vs. State of Punjab), wherein in paragraph No.35 it has been held as follows:- "35.The next question is, in a case of this nature, whether the prosecution was bound to explain the injuries appearing on the person of Paramjit Singh. In our view, having regard to the facts and circumstances of this case, it was the duty of the prosecution to explain the injuries suffered by Paramjit Singh which were 19 in number and two of them resulting in fractures. It is not as if the prosecution did not know of these injuries and that they were manufactured later to support the case of the defence. The facts disclose that even by the time the first information report was finalised and before the special report was dispatched, the investigating officer had knowledge of the fact that Paramjit Singh had suffered injuries and was admitted in a hospital for treatment. We, therefore, hold that the failure of the prosecution to explain the injuries on Paramjit Singh leads to the inference that the prosecution has not disclosed the true genesis and the manner of occurrence."
14.A combined reading of both the above judgments would show that the burden is on the prosecution to explain to the satisfaction of the Court as to how the accused had sustained injuries. Of course, it has been held by the Supreme Court in the decision reported in AIR 1975 SC 1478 (State of Gujarat vs. Bai Fathima) that non-explanation of the injuries which are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and credit worthy, will not affect the prosecution case. It need not necessary in all cases the non-explanation of the injuries on the accused would be fatal to the prosecution. But, there are certain exceptions, namely that the prosecution may explain through evidence which is clear and cogent, independent and disinterested, probable, consistent and credit worthy. However, if the injuries are serious and were inflicted on vital parts and the court comes to the conclusion that there is no clear or cogent, independent or disinterested, probable, consistent and credit worthy evidence, it must be held that the absence of explanation as to the injuries sustained by the accused is a serious infirmity and therefore would affect the prosecution case.
15.Keeping the above principles in mind, we will have to consider as to whether the prosecution has properly explained the injuries found on accused Nos.4 and 5 and rely upon the exceptions, which are not exhaustive, given in AIR 1975 SC 1478. Admittedly, accused No.4 sustained the following injuries, as noted in Ex.P-13 Wound Certificate issued to him by P.W.8, the Doctor who treated him.
"1)Lacerated wound 6x3 cm on the middle of right leg x bone deep. 2)Lacerated wound 2 x 0.5 cm on the left foot below the great toe. 3)Lacerated wound 4 x 2 cm on the right forearm x muscle deep." The following are the injuries found on accused No.5 Raman as per Ex.P-12, the Wound Certificate.
"1.A curvilinear cut injury on the left parietal region of scalp on poster aspect 7 cm x Bone depth
2.A curvilinear cut injury on left occipital region 5 cm x bone depth.
3.abrasion 2 x 2cm on the lateral scapular area of the back.
4.Curvilinear cut injury along the left costal margin 15 cm x muscle depth.
5.Cut injury 4 x 2 cm near the lumbur spine latera 1 to L3, L4 vertebrae x muscle depth.
6.Lacerated wound 6 cm x 2 cm along the right costal margin x muscle depth.
7.Lacerated wound 1 cm x 0.5 cm on the right temporal region."
16.From the above, we find that except Injury No.3, which is a lacerated wound on the lateral scapular area of the back, all other injuries found on accused No.5 are on vital parts. To find out as to whether these injuries were explained by the prosecution to the satisfaction of the Court, Ex.P-1, the evidences of P.Ws.1 and 2 and P.W.8 are relevant. In Ex.P-1 complaint, the above injuries have been spoken by P.W.1, who is the complainant. Nevertheless, she has not come out with any such case while she was examined before the Court as to how the accused Nos.4 and 5 sustained the injuries. From the evidence of P.W.1, we are not able to either visualize or see any convincing explanation offered by the prosecution as to the nature of the injuries sustained by accused Nos.4 and 5. In the circumstances, the presence of P.W.1 in the place of occurrence itself is doubtful. This leads us to the evidence of P.W.2. From the evidence of P.W.2, we could see that the deceased had made an attempt by sweeping aruval on the accused. In fact, it is only a general statement. It is not clear as to whether the deceased made an attempt either on accused No.4 or accused No.5. That apart, in the cross-examination, P.W.2 has totally denied as to any knowledge of the injuries either on accused No.4 or accused No.5. From the evidence of P.W.2 also, we are unable to see any explanation as to the injuries sustained by accused Nos.4 and 5, more particularly the injuries sustained by accused No.5 on his vital parts.
17.In the above background, the evidence of P.W.8, the doctor who treated accused Nos.4 and 5, has relevance. The injuries sustained by accused No.5 is spoken to by P.W.8 doctor and as already indicated, except injury No.3, all other injuries are on vital parts. Inasmuch as the evidence of P.W.8 Doctor is categorical as to the injuries sustained by accused No.5 and in the absence of any evidence
to explain those injuries by the prosecution, we have no hesitation to hold that the prosecution has not satisfactorily explained as to the injuries sustained by accused Nos.4 and 5.
18.We must necessarily mention one more aspect in view of our finding as above. The evidence of P.W.8 Doctor is categorical, while he states that he treated both accused No.4 and accused No.5 at 00.30 a.m. on 26.08.1997 only on police medical memos. Exs.P-12 and P-13 also reflect the same. On the other hand, we have got the evidence of P.W.13, the Sub-Inspector of Police, who denies the above said statement of the Doctor, P.W.8. According to P.W.13, on receipt of intimation from hospital authorities, he went to the hospital and recorded the statement of accused No.5 at about 1.15 hours. We are not inclined to accept the evidence of P.W.13 for more than one reason. Firstly, the original complaint given by accused No.5 and record by P.W.13, based on which a case in Crime No.366/97 for the offences under Sections 341 and 354 IPC came to be registered, has not been filed before the trial court. Secondly, P.W.13, who registered Ex.P-19 FIR, has not put his signature and thirdly the evidence of P.W.8 Doctor as to the medical memos sent by the police to treat accused Nos.4 and 5 even before Ex.P-1 was registered. In these circumstances, we have to accept the evidence of P.W.8, the Doctor, as there was no occasion for the doctor to come with that version before the trial court and the evidence of P.W.8 is supported by police medical memos as well. Hence for all the above reasons, we are convinced that the failure on the part of the prosecution to explain the injuries sustained by both accused No.4 and accused No.5 throws serious doubt as to the genesis of the very FIR Ex.P-18 itself.
19.Further, it is to be seen that the place and the time of occurrence at which both the deceased and the accused sustained injuries are one and the same and especially when it is the specific case of the defence that one Ananth had lodged a complaint at the earliest point of time about the occurrence and the said complaint has been totally suppressed by the prosecution and further the said Ananth is also residing just near the scene of occurrence and his statement under Section 161 Cr.P.C. was also recorded, in all probabilities the prosecution should have examined the said Ananth.
20.Law in respect of non-examination of independent witness is well settled. The Supreme Court, in the decision reported in 1992 CRI.L.J. 1796 - AnilPhukan v. State of Assam, in paragraph No.4, had observed as under: "4.... Of course, mere relationship with the deceased is no ground to discard his testimony, if it is otherwise found to be reliable and trustworthy. In the normal course of events, a close relation would be the last person to spare the real assailant of his uncle and implicate a false person. However, the possibility that he may also implicate some innocent person along with the real assailant cannot be ruled out and therefore, as a matter of prudence, we shall look for some independent corroboration of his testimony, to decide about the involvement of the appellant in the crime. ..." It is not as if that in all cases the court must reject the evidence of related or interested witnesses let in on behalf of the prosecution only on the ground that independent witnesses were not examined; but it depends upon the facts and circumstances of each case. Having regard to the specific defence taken by the accused that there was a complaint at the earlier point of time by the above said Ananth and even according to the Investigation Officer P.W.14, the said Ananth was an eye-witness to the occurrence and he also examined him and especially when the two other witnesses are closely related to the deceased, namely P.Ws.1 and 2, the wife and daughter of the deceased and they have not spoken anything about the nature of the injuries sustained by accused No.4 and 5 and their evidence does not inspire confidence, the non-examination of the said independent witness Ananth assumes importance while judging the prosecution case. In addition to the above, even according to P.W.14, the Investigation Officer, one more person by name Adaikalam was present at the scene of occurrence and also his statement was recorded, but there is absolutely no explanation as to why he was not examined as a witness before the Court.
21.In the above circumstances, the argument and submission of the learned senior counsel for the appellant as to the non-examination of the independent witness affects the prosecution case must necessarily be accepted as we have no reason to reject the same. In this context, our attention was drawn to the decision of the Apex Court in Deepak Kumar vs. Ravi Virmani and another - 2002 SCC (Cri) 470, wherein the Supreme Court has held that it is not a rule steadfast but depends on the concept of justice and the question of availability of acceptable evidence on record. It is not that multiplicity of witnesses would improve the situation. Neither the court to be understood to hold that corroboration from independent witnesses stands out to be a mandatory requirement and the witnesses though be interested can be relied upon, provided, the evidence available on record is trustworthy and creates confidence in the minds of the Court that the scrutiny entails only pointing out the commission of an offence by the accused. In the give case, as we have found that the very presence of P.W.1 in the scene of occurrence is doubtful and she is none other than the wife of the deceased and an interested witness, the prosecution, in all fairness, should have examined independent witnesses. There is absolutely no explanation in this regard. We do not find any evidence to convince ourselves that there were any explanation as to the non-examination of the available independent witnesses, namely either Ananth or Adaiklam.
22.For all the reasons, we are of the considered view that the prosecution has not established its case beyond any reasonable doubt and accordingly the appellants are entitled to an acquittal in this appeal.
23.Accordingly, the appeal is allowed and the conviction and sentence imposed on all the appellants by the trial court in its judgment dated 24.02.1999 are set aside. The appellants are acquitted of the charges levelled against them. The bail bonds executed by appellants shall stand terminated and the fine amount, if any, paid by them shall be refunded. gb..
1.The Principal Sessions Judge,
Virudhunagar District at
2.The Inspector of Police,
Taluk Police Station,
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
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