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Dholl alias Duraiselvam v. State by - Criminal Appeal No. 1813 of 2003  RD-TN 591 (19 February 2007)
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
THE HONOURABLE Mr. JUSTICE P.MURGESEN
Criminal Appeal No. 1813 of 2003
1.Dholl alias Duraiselvam
4.Karupiah ..Appellants Vs
Inspector of Factories,
Virudhu Nagar District ..Respondent
Revision filed under Section 374 Cr.P.C. against the judgment dated 28.11.2003 made in S.C.No. 131 of 2003 by the learned Additional District and Sessions Judge(Fast Track Court)Virudhunagar.
For Appellants .. Mr.K.Jaganathan For Respondent .. Mr.Siva Ayyappan, Addl.Public Prosecutor. :JUDGMENT
This appeal has been directed against the Judgment dated 28.11.2003 made in S.C.No.131 of 2003 by the Additional District and Sessions Judge,(Fast Track Court) Virudhunagar wherein the accused Nos.1 and 2 stood charged, tried and found guilty for the offence under Sections 450 and 307 I.P.C and sentenced them to undergo R.I for 3 years and to pay a fine of Rs.500/- in default to undergo six months R.I for the offence under Section 450 I.P.C, and to undergo five years R.I and to pay a fine of Rs.1,000/- in default to undergo R.I. for one year. The accused Nos 3 and 4 stood chaged, tried and found guilty for the offence under SEctions 452 and 324 I.P.C and sentenced them to undergo imprisonment till raising of the Court and to pay a fine of Rs.500/-in default to undergo 3 months R.I for the offence under Section 452and to pay a fine of Rs.1,000/- in default to undergo S.I for six months for the offence under Section 324 I.P.C.
2. The prosecution case is briefly as follows: i) P.W.1 is a resident of Mallangkinaru village.P.Ws. 2 and 3 are the father and mother of P.W.1. P.W.4 is the sister of P.W.1. P.W.12, Ramasamy, is brother of P.W.2 and uncle of P.W.1.
ii) Earlier there was a communal clash between the complainant party and the accused party. So, a Panchayat was held in that village. P.Ws 7 and 8 were the Panchayatdars. In the Panchayat, third accused Prakasam and Ramasamy were directed to pay a fine of Rs.1,000/- Enraged over the said direction, third accused along with others, on 21.09.2002 at about 7.30 p.m., entered into the house of P.W.1 and attacked P.Ws 1 to 4. Then they were taken to the Virudhunagar Government Hospital. After giving first aid, they were shifted to Madurai Rajaji Hospital for further treatment.
iii) P.W.13, the Head Constable attached to Mallangkinaru Police Station, on 22.09.02 at about 21.00 hours, on receipt of information through phone from Virudhunagar Government Hospital,he went to Virudhunagar Hospital within 10 minutes. On reaching there he heard that the injured were shifted to Madurai Rajaji Hospital. So, he proceeded to Madurai Rajaji Hospital. Since the injured Sathurappan was unconscious, he recorded the statement of P.W.1 at 22.00 hours, Ex.P.1. Later he returned to Mallangkinaru Police Station at about 23.00 hours and registered a case in crime No.125 of 2002 under Sections 452,324,and307 I.P.C. The Printed First Information Report is Ex.P.9. He sent the First Information Report to the Inspector, for further investigation. iv) P.W.15, Inspector attached to Aruppukottai Police Station, on receipt of the first information report in respect of Crime No.125/02 from Mallangkinaru Police Station, he took up the case for further investigation. On 22.09.2002, at about 1.30 hours he went to the place of occurrence and prepared observation Mahazar Ex.P.6 in the presence of witnesses and drew a sketch, Ex.P.14. Later he enquired the mahazar witnesses UmaMaheswari and Pondysundareswari and recorded their statements. He searched for the accused. Next day at about 3.20 a.m. he arrested the first accused infront of Mallangkinaru Cooperative Society Bank Bus Stop in the presence of witnesses, Pondy and Durairaj. The accused gave a confession statement. The admissible portion of the said confession statement is Ex.P.7. On his confession, at about 5.00 a.m., he recovered M.O.1 Kathi under Athatchi Ex.P.8. Then he proceeded to Madurai Rajaji Hospital and enquired P.W.1 and P.W.4 and recorded their statements. He also enquired Ramasamy-P.W.2, and recorded his statement. Later he proceeded to Mallangkinaru and enquired Krishnan-P.W.6, Ponnusamy,Mariappa Naicker, Krishnan, Karuppasamy-P.W.9, Pondy and Muthuraj-P.W.10 and recorded their statements. Then he sent the first accused to the Judicial custody on 23.09.2002. He enquired Palani - P.W.9, Mathiraj Udayachi -P.W.7 , Natarajan-P.W.11 and Head Constable Subburaj P.W.13 and recorded their statements.
v) On 27.09.2002 he enquired the injured Sathurappan P.W.2 and Pondiyammal, P.W.3 and recorded their statements. Sathurappan handed over his dresses and he sent the same to theCourt under Form 95 . On 13.12.2002 he enquired Dr.Ravi and recorded his statement. Since the accused came out on bail, he filed charge sheet under Sections 458,324 and 307 I.P.C. vi) The injured persons were treated by P.W.14, Dr.Ilavarasi, attached to Madurai Rajaji Hospital. She examined Sathurappan and found the following injuries:-
"1. A vertical wound of size 3cm X 3 cm peritonealdepth just above public symphysis.
2. A vertical wound 3cm X 3 cm peritoneal depth just below umblicus." X-ray was taken and she gave wound certificate Ex.P.10. vii) On the same day, she examined Pondiyammal at about 11.05 p.m.and found the following injuries:-
"1.Oblique incised wound about 3 cm X2 cm in length over the lateral end of the inguinal region.
2.Contusion about 2 cm X 1cm sizeover the dorsal aspect of left elbow." x-ray was taken and she gave wound certificae Ex.P.11. viii) At about 11.10 pm. she examined Premkumar and x-ray was taken. She found the following injuries:-
"1. Sutured wound around the back of chest about 4 cm X 2 cm and 2 cm X 1 cm in the scapula region."
x-ray was taken and she gave wound certificate Ex.P.112 ix) At about 11.15 p.m, she examined Karthikai selvi and found the following injuries:-
"1.A sutured wound about 3 cm X 1 cm over the lower part of upper arm (R) 2. A sutured wound about 1 CmX 1 cm on the lateral aspect of Right elbow. 3. An inverted V-schaped sutured wound about 4 cm X 4 cm in size over the dorsal aspect of Right pre arm.
4.A sutured wound seen over the dorsal aspect of middle phalanx of Right middle finger."
X ray was taken and she gave wound certificate Ex.P.13.
3. When the accused was questioned under Section 313 Cr.P.C., inrespect of the incriminating circumstances appearing against them, from the evidence adduced by the prosecution, the accused had come forward with a version of total denial and he has stated that they have been falsely implicated in this case.
4. In order to bring home the charges against the accused, the prosecution examined 15 witnesses and 14 documents were marked and one M.O was also marked. On the defence side,six documents were marked.
5. On consideration of the entire materials, the learned Additional District and Sessions Judge (Fast Track Court) Virudhunagar, convicted the accused and sentenced the accused Nos.1 and 2 to undergo R.I for three years and to pay a fine of Rs.500/- in default to undergo six months R.I for the offence under Section 450 I.P.C, and to undergo five years R.I and to pay a fine of Rs.1,000/- in default to undergo R.I. for one year for the offence under Section 307 I.P.C. The accused Nos. 3 and 4 were sentenced to undergo imprisonment till raising of the Court and to pay a fine of Rs.500/-in default to undergo 3 months R.I for the offence under Section 452 and to pay a fine of Rs.1,000/- in default to undergo S.I for six months for the offence under Section 324 I.P.C.
6. Challenging the said judgment, the accused have preferred the present appeal.
7. The point for determination: Whether the prosecution has proved its case beyong all reasonable doubts?
8. The point: P.W.1 is the son of P.Ws 2 and 3. P.W.4 is the sister of P.W.1. Ramasamy, P.W.12 is the brother of P.W.2.
9. P.Ws 1 and 2 are the resident of Mallangkinaru village. The incident occurred on 21.09.2002 at about 7.30 p.m. As per the case of the prosecution,ten days prior to the incident, P.W.12-Ramasamy's son(uncle of P.W.1) was assaulted by the first accused. So a Panchayat was conducted. P.Ws 7 and 8 were the panchayatdars. In the Panchayat, the first accused as well as Ramasamy were directed to pay a fine of Rs.1,000/- The case of panchayat was spoken by P.Ws 7 and 8. P.W.12 also confirmed the version of Panchayatdars. After panchayat, the parties exchanged the betelnuts between them as per custom. So, the dispute between the parties were settled in the Panchayat. P.W.1 also admitted that he has no enmity towards the accused prior to that. Because his uncle's son was assaulted, there was enmity. In the panchayat, accused was directed to pay fine. Anyhow, enraged by the same, after some time, the alleged incident occurred.
10. Learned counsel for the appellants submitted that there was discrepancy with regard to the scene of occurrence. It is the case of the prosecution that while according to P.Ws 1 to 4, who spoke about the scene of the occrrence, the scene of occurrence was the bed room, according to the investigating officer, P.W.15, the scene of occurrence was in the hall. He prepared observation Mahazar Ex.P.6 and a rough sketch Ex.P.14. In the Observation Mahazar, the investigating officer explained about the house and the upstairs in the the house of P.W.2. But he has not particularly explained the physical features of the scene of occurrence. Further he was not aware that in which portion of the house, P.Ws 1 to 4 were attacked by the accused, which was clear from the following his words:
"tPl;od; ve;j gFjpapy; ,Ue;J jhf;fg;gl;lhh;fs; vd;gJ g[yd; tprhuizapy; bjhpatpy;iy"
11. It is the case of the defence that the accused were attacked by the prosecution parties near the street and the scene of occurrence was shifted by the prosecution in order to shield P.Ws.1 to 4. There is no satisfactory evidence on the side of the prosecution about the discrepancy in the evidence of P.W.s 1 to 4 and P.W.15 with regard to the scene of occurrence. The aforesaid discrepancy would render the prosecution case as a doubtful one.
12. Learned counsel for the appellants argued that non-recovery of the blood stained earh is fatal to the accused. The evidence of P.Ws 1 to 4 would show that they sustained blood injuries and there was blood on the floor and clothes. P.W.15, the Investigating Officer did not recover any blood stained earth from the scene of occurrence. On the other hand, he gave explanation that blood stained earth was removed by the relatives of the victims. so, he was not able to collect the blood stained earh. But, he has not stated about this in his Observation Mahazar. If really, the blood stained earh was removed by the relatives, nothing prevented him from explaining about the same in the Observation Mahazar and sketch. Exs.P.3 and P.14 were also silent about the blood stained earth. The investigating officer ought to have collected the other portion of the earh as sample earth at the scene of occurrence. Usually, to prove the case, they will collect blood stained earth at the place of occurrence. But, in this case, no such earth was collected by the investigating officer. The invetigating officer has not taken any pain to collect the blood stained earth and this also weakens the case of prosecution.
13. The eye witnesses spoke about the blood stained clothes and handed over the same to the investigating officer. Though the investigaing officer did not recover blood stained earth, he recovered blood stained clothes and sent them to the Court. But those clothes were not produced at the time of trial, which creats suspicion about the recovery of the clothes.
14. Further, learned counsel for the appellants relied on 1980 Supreme Court Cases(Cri) 985 and argued that once the First Information Report is held to be fabricated or brought into existence long after the occurrence, the entire prosecution case would collapse.
15. It is the case of prosecution that on 21.09.2002 at about 7.30 p.m.the victim was attacked by the accused and taken to the Virudhunagar Government Hospital from where they shifted to the Madurai Rajaji Hospital. P.W.13 Head Constable recorded First Information report from P.W.1. According to him, he received the information at about 21.00 hours. Initially, he went to Virudhunagar Hospital within ten minitues and after spending five minutes there, and on hearing the news that the injured were shifted to Madurai Rajaji Hospital, he proceeded in his two wheeler to Madurai Rajaji Hospital. The distance between Virudhunagar to Madurai Bus stand is 45 K.Ms.From the bus stand, the Rajaji Hospital is at a distance of 4 K.Ms. He reached Madurai Rajaji Hospital and reccorded the statement of of P.W.1 at about 22.00 hours. Since the Sathurappan was in an unconscious state,he recorded the statement from P.W.1. Then,he returned to Mallangkinaru Police Station at about 23.00 hours and registered a case.
16. On the other hand, P.W.14 Doctor, Ialavarasi, who gave treatment to P.Ws 1 to 4, has categorically stated that on 21.9.2002 at about 11.00 a.m. Sathurappan was in a conscious state. But on the other hand, invetigating Officer, P.W.13, stated that since Sauthrappan was in an unconscious state, he recorded the statement of P.W.1. His evidence is quite contrary to the evidence of doctor, who is comptent to speak about the condition of the patient. So, her evidence creates doubt about the conduct of P.W.13.
17. Further, it is the version of P.W.13, that within 45 minitues, he proceeded to Virudhunagar Government Hospital from where he proceeded to Madurai Rajaji Hospital. There is reason to reject his evidence. Sathurappan and Pandiyammal were admitted in the hospital on 21.9.2002 at 11.00 p.m. Doctor Ilavarasi treated Sauthurappan at 11.00 pm. and treated Pondiyamml at 11.05 p.m. and Premkumar at about11.10 pm. and Karthigaiselvi at about 11.15 pm. Her evidence would show that she gave treatment to SAuthurappan and others at 11.00 p.m. to 11.15 pm. Nothing is elicited from her to disbelieve her evidence. There is no reason to reject her evidence. According to her version, P.Ws 1 to 4 were admitted in the hospital at 11.00pm While that being so,the version of P.W.13, Inspector that he recorded the statement of P.Ws 1 and 2 at 22 hours (i.e) at about 10.00 p.m.is highly improbable and artificial. Further, he said that he went to Mallangkinaru Police station at 23.00 hours and registered a case. When the injured were admitted in the hospital at about 11.00 pm., he would not have recorded the statement of P.W.1 at 10.00 p.m. (22.00 hours) which would go to show that the version of P.W.13 is not acceptable. This contradiction between the evidence of doctor and the Police Officer creates doubt about the case of the prosecution.
18. Learned Public Prosecutor submitted that the first information report given by the accused would prove that they were present at the scene of occurrence.But on the other hand, it is the case of defence that they were assaulted in the street by the prosecution parties and prosecution has suppressed the first information report in respect of the complaint given by the accused. Since the complaint given by the accused supported the claim of the prosecution about the presence of the accused on the scene of occurrence, it would not improve the case of the prosecution. So I find that would weakens the case of the prosecution.
19. As far as the damage caused to the house of Prakasam a case in Crime No.126/02 was registered under Sections 147, 148, 427 and 336 I.P.C. so, it is clear that there was clash between the parties. It is the duty of the prosecution to produce F.I.R and evidenece with regard to the injuries susained by the accused parties. A duty is cast upon the prosecutionto place all the materials before the Court to enable the Court to find out the truth and take a proper decision. The prosecution ought to have produced F.I.R given by the accused and other materials before them. But the prosecution did not do so.
20. The prosecution has not placed correct particulars before the Court to enable the Court to come to a correct conclusion. The injury sustained by the accused was not explained. The prosecution is not in a position to exhibit the first information report given by the accused and the prosecuting agency is witholding it. So an adverse inference has to drawn against the prosecution. As per the decision cited supra, the entire prosecution case has to be rejected. The prosecuting agency has not acted impartially and properly.The prosecution has miserably failed to prove its case beyond any doubt and the accused are entitled for acquittal.
21.In the result, the appeal is allowed. The judgment dated 28.11.2003 made in S.C.No. 131 of 2003 by the learned Additional District and Sessions Judge (Fast Track Court) Virudhunagar is set aside. The bail bonds, if any, shall stand cancelled. The fine amount if any paid, shall be refunded. To
1. The learned Additional District
and SessionsJudge (FTC)
2. The Public Prosecutor,
Madurai Bench of
Madras High Court,
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