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2002 DIGILAW 754 (MAD)

Ashok @ Ashok Kumar & Others v. State

2002-08-06

MALAI SUBRAMANIAN, N.DHINAKAR

body2002
Judgment :- MALAI.SUBRAMANIAN, J. The appellants are A.2 to A.8 in Sessions Case No.240/93 on the file of II Additional Sessions Judge, Trichy, whereby A.2 was convicted for offence punishable under Sec.148 IPC and sentenced to undergo R.I for one year besides conviction for the offence punishable under Sec.302 and sentence to imprisonment for life and he was also convicted for the offence punishable under Sec.323 read with 149 IPC and sentenced to undergo R.I.,for 6 months and also convicted for the offence punishable under Sec.324 read with 149 IPC and sentenced to undergo R.I. for one year; A.3 and A.4 were convicted for the offence punishable under Sec.148 IPC and sentenced to undergo R.I for one year each besides conviction for the offence punishable under Sec.302 read with 149 IPC and sentence to undergo imprisonment for life. They were also convicted for the offence punishable under Sec.323 read with 149 IPC and sentenced to undergo R.I for 6 months each and also convicted for the offence punishable under Sec.324 read with 149 IPC and sentenced to undergo R.I., for one year each. A.5 and A.7 were convicted for the offence punishable under Sec.148 IPC and sentenced to undergo R.I for one year each and they were convicted for the offence punishable under Sec.324 IPC and sentenced to undergo R.I for one year each besides being convicted for the offence punishable under Sec.302 read with 149 IPC for which they were directed to undergo life imprisonment. They were also convicted for the offence punishable under Sec.323 read with 149 IPC and sentenced to undergo R.I for 6 months. A.6 was convicted for the offence punishable under Sec.148 IPC and sentenced to under go R.I for one year and also convicted for the offence punishable under Sec.324 read with 149 IPC and sentenced to undergo R.I for one year besides being convicted for the offence punishable under Sec.302 read with 149 IPC for which he was sentenced to undergo life imprisonment. He was also convicted for the offence punishable under section 323 I.P.C.,and sentenced to undergo RI for six months. A.8 was convicted for the offence punishable under Sec.148 IPC and sentenced to undergo R.I for one year and was also convicted for the offence punishable under Sec.302 read with 149 IPC and sentenced to under go life imprisonment. He was also convicted for the offence punishable under section 323 I.P.C.,and sentenced to undergo RI for six months. A.8 was convicted for the offence punishable under Sec.148 IPC and sentenced to undergo R.I for one year and was also convicted for the offence punishable under Sec.302 read with 149 IPC and sentenced to under go life imprisonment. He was also convicted for the offence punishable under section 323 read with 149 I.P.C.,and sentenced to undergo RI for six months besides being convicted for the offence punishable under Sec.324 read with 149 IPC and sentenced to undergo R.I for one year. All the above accused were ordered to suffer the sentences concurrently with life imprisonment. 2. The charge against them is that on 8.6.91 at about 7.30 p.m, they formed themselves into an unlawful assembly, arming themselves with deadly weapons, A.2 stabbed the deceased Govindaraju on his right thigh and caused his death while P.W.2 was assaulted by A.5 and A.7 and P.W.1 was assaulted by A.6. For convenience, the appellants 2 to 8 will be referred to as accused 2 to 8 in the order as they were arrayed before the trial court. The prosecution case in a nutshell is as follows: 3. The deceased Govindaraju was a resident of Rajampettai Village. He belonged to Communist Party. P.Ws.1 and 2 belonged to the same party. A.3 and A.8 are sons of the 1st accused; A.2 and A.4 are the grand sons of the 1st accused; A.5 and A.6 are the agnates of the 1st accused and A.7 is the relative. All the accused are also the residents of the same village. There was a dispute between the deceased and the accused with regard to quarrying the sand in Vennaru river. On 8.6.91 at about 7.30 p.m the deceased and P.W.2 were viewing television in a public place near Panchayat board. At that time, the deceased requested P.W.2 to accompany him to a shop. Both of them went near Anna statute where there was a tube light. That place was at a distance of 100 feet from the place where they were viewing television. All of a sudden, A.1 to A.8 came there with dangerous weapons in their hands. At that time, the deceased requested P.W.2 to accompany him to a shop. Both of them went near Anna statute where there was a tube light. That place was at a distance of 100 feet from the place where they were viewing television. All of a sudden, A.1 to A.8 came there with dangerous weapons in their hands. A.2 was possessing a spear, while others were armed with aruvals and A.1 instigated the other accused to kill the deceased, since the deceased was giving trouble in the sand business and thereafter A.3 and A.4 caught hold of the deceased while A.2 stabbed him at the junction of the right thigh and loin region. P.Ws.1 and 2 shouted. A.5 and A.6 assaulted P.W.2 with aruval on his head, back and his right hand. A.6 fisted P.W.1 on his chest. The deceased after sustaining stab injury, fell down. P.W.4 – the son of the deceased came to the spot, all the accused ran away. Thereafter, the deceased was taken to the Government Hospital, Trichy at about 10.45 p.m, where he was declared dead by the doctor. Immediately, P.W.1 went to the Police Station at Thiruvarambur and gave Ex.P.1 on the basis of which a crime was registered in Cr.No.764/91 under Secs.147, 148, 341, 324, 307 read with 302 IPC and the First Information Report Ex.P.16 was prepared and the same was forwarded to the Court along with Ex.P.1. 4. P.W.12 -Inspector of Police, Thiruvarambur after receiving Ex.P.16 at about 00.30 hours on 9.6.91 took up investigation; went to the scene of crime at about 5.30 a.m, prepared Ex.P.2 – observation mahazar in the presence of P.W.5; drew a rough sketch – Ex.P.17. At about 6.00 a.m., he seized M.O.1 blood stained earth and M.O.2 – sample earth in the presence of P.W.5 and held inquest over the body of Govindaraju between 8.00 a.m and 10.00 a.m and prepared Ex.P.18 – Inquest report. During inquest, he examined P.Ws.1 to 3 and recorded their statements. After inquest, he forwarded the body for autopsy. 5. P.W.8 – Dr.Vairavan, Civil Assistant Surgeon attached to Government Hospital, Trichy commenced the post mortem at about 12.15 hours on 9.6.91 on the body of Govindaraju and found the following injuries: "External injuries" A puncture wound on right femoral region below abdominal cavity 3 cm x (10cm depth) mild contusion over chest, abdomen back and gluteal region. 5. P.W.8 – Dr.Vairavan, Civil Assistant Surgeon attached to Government Hospital, Trichy commenced the post mortem at about 12.15 hours on 9.6.91 on the body of Govindaraju and found the following injuries: "External injuries" A puncture wound on right femoral region below abdominal cavity 3 cm x (10cm depth) mild contusion over chest, abdomen back and gluteal region. "Internal injuries" Right femoral artery has been severed. Blood about 1000 ml collected at right loin below kidneys. He issued Ex.P.6 Post Mortem certificate and he gave an opinion Ex.P.7 that the deceased died of shock and hemorrhage due to injuries to femoral artery right side. 6. P.W.12, continuing his investigation, examined several witnesses including P.W.5. At about 2.00 p.m on that day, he arrested A.1 and A.8 at Thogur bus stop in the presence of P.W.6 and seized two aruvals under Ex.P.4 mahazar. Then A.1 and A.8 were brought to the police station. A.8 gave a complaint, on which a case was registered in Cr.No.765/91 under Sec.324 IPC. Thereafter, A.1 and A.8 were forwarded for remand. P.W.2 seized M.O.5 – dhoti, that was produced by the constable who accompanied the body for post mortem, after the post mortem was over. On 12.6.91 P.W.12 arrested A.6 at about 5.45 p.m at Thiruvarambur Kallanai Junction Road. A.6 gave a statement, the admissible portion of which has been marked as Ex.P.5. Pursuant to the statement, A.6 took P.W.12 and his party and produced M.Os.3 and 4 aruval and spear from the back side of one Kamakshi Rice mill and the same was recovered under Ex.P.19 mahazar. P.W.12 examined P.W.7 and others. On 13.6.91 he examined P.W.8 and one Senguttuvan. On 8.7.91 he gave requisition to send the material objects for chemical analysis. 7. P.W.13 who took up further investigation, verified the investigation done by P.W.12 and after examining P.Ws.8,10 and 9, completed the investigation and filed a final report against the accused for the offences punishable under Secs.147, 148, 149, 324, 323 and 302 IPC. 8. After the evidence of the prosecution was over, the accused were questioned by the trial Judge under Sec.313 Cr.P.C to enable them to explain the incriminating circumstances appearing in evidence against them. 8. After the evidence of the prosecution was over, the accused were questioned by the trial Judge under Sec.313 Cr.P.C to enable them to explain the incriminating circumstances appearing in evidence against them. The accused only pleaded their innocence and a statement was also filed by A.8, in which he has stated that the occurrence did not take place as spoken to by P.Ws.1 and 2, but immediately after the occurrence, he went and gave the complaint to the Sub Inspector of Police stating that P.W.1, 2 and the deceased along with several others came with dangerous weapons and the deceased stabbed A.8 with spear on his right thigh and while P.W.2 was about to stab him he dodged the same and the stab fell on the right thigh of the deceased. It is his further contention in the written statement that the Sub Inspector of Police has failed to mention all those details and a false case has been foisted against him and others. No witness has been examined on the side of defence. 9. P.W.8 – Dr.Vairavan, Civil Assistant Surgeon, attached to Government Hospital, Trichy who did autopsy over the body of Govindaraju, found a stab wound of 3 x 10 cms on the upper portion of right thigh. He also found some contusions on the chest, stomach and back portion of the chest. He found that the femoral artery was cut and opined that the deceased died due to injury to femoral artery right side. On the medical evidence, we hold that the deceased died due to homicidal violence. This fact has not been disputed by the defence. 10. P.Ws.1 and 2 are the eye witnesses to prove the ocular part of the prosecution case. P.Ws.1 and 2 would say that they were viewing television in front of the Panchayat board at about 7.30 p.m on 8.6.91 and the deceased called P.W.1 to accompany him to a shop nearby and when they went near Anna statute, the accused came armed with dangerous weapons and A.3 and A.4 held the deceased, while A.2 stabbed him with spear. It is the further case of P.Ws.1 and 2 that A.5 inflicted a cut injury on the head of P.W.2 and A.7 also gave a cut on the back and another cut on the right hand of P.W.2.P.W.1 alone would say that A.6 fisted him with hands. It is the further case of P.Ws.1 and 2 that A.5 inflicted a cut injury on the head of P.W.2 and A.7 also gave a cut on the back and another cut on the right hand of P.W.2.P.W.1 alone would say that A.6 fisted him with hands. It is to be remembered that P.Ws.1 and 2 belonged to a political party, to which the deceased also belonged. They claimed that they were viewing television and they are not the witnesses of that locality. P.Ws.1 and 2 had interest in deposing against the accused, since the deceased belonged to their party. Therefore, the evidence of P.Ws.1 and 2 have to be scrutinized with great care and caution. P.Ws.2 and 4 though would say that A.2 inflicted a fatal injury on the deceased, the doctor – P.W.8 who did autopsy over the body of Govindaraju would give an opinion that M.O.4 – spear which was said to have been used to inflict the injury on the deceased was having edges on two sides and such a weapon could not cause the injury found on the deceased. Where there is a direct conflict between the eye witnesses and the medical evidence, it is settled law that when the eye witnesses are either interested in the deceased or inimically disposed of against the accused or their evidence suffers from serious infirmity, then their evidence should be rejected. Here is a case, where P.Ws.1 and 2 are admittedly friends of the deceased. According to P.W.1 the deceased, P.W.2 and himself belong to the same political party. Moreover, P.Ws.1 and 2 are not natural witnesses having residence nearby but they were viewing television in the Panchayat board. They can be termed only as chance witnesses. Under these circumstances unless the evidence of P.Ws.1 and 2 inspires confidence, the accused cannot be convicted. 11. It is the evidence of the doctor that he found several contusions on the chest, abdomen and back of chest of the deceased, but none of the witnesses viz., P.Ws.1 and 2 would speak anything about those contusions as to how they were caused. That only indicates that neither P.W.1 nor P.W.2 would have witnessed the occurrence. Therefore, this is a case where the medical evidence completely falsifies the eyewitness account. That only indicates that neither P.W.1 nor P.W.2 would have witnessed the occurrence. Therefore, this is a case where the medical evidence completely falsifies the eyewitness account. Moreover, P.W.1 is also an inimical witness since he has admitted that 3rd accused has given three criminal cases of arson against him alleging that he burnt the haystack. It is the admission made by P.W.1 and there is motive for P.W.1 to implicate A.3 and other accused, who are closely related to A.1 to A.3. Therefore, the benefit of doubt has to be given to the accused. 12. The most vital aspect in this case is that in spite of the fact that A.8 sustained a cut injury and he was said to be inside for 27 days in the hospital, the prosecution failed to mark the complaint given by him though a case was registered on the strength of the complaint and even the Wound Certificate has not been marked. Ex.P.20 - the letter of the Investigating Agency referring the case given by A.8 has been pressed into service to prove that the case was referred to as a mistake of fact. Unfortunately the learned Sessions Judge relied on the statement of the doctor alleged to have been recorded under Sec.161 Cr.P.C as a piece of evidence to convict the accused in this case. The doctor, who examined A.8 and noted down his injuries was not examined in Court; nor was the Accident Register Copy or Wound Certificate exhibited and the very complaint said to have been lodged by A.8 has also not been exhibited in this case. This only shows the callousness nature of the investigation. Moreover, P.W.2 has stated that he had not seen any injury on A.8 at all. That shows that not only the prosecution suffers from the defect of not explaining the injury on the accused which the accused sustained during the course of same transaction, but there was a denial of the infliction of injury on A.8. A.8 has taken a defence in his statement under Sec.313 Cr.P.C., that he was stabbed by the deceased with spear and P.W.2 coming there with spear, attempted to assault him and when he warded off, it fell on the right thigh of the deceased. The Investigating Agency has not taken any step to enquire into the complaint lodged by A.8. A.8 has taken a defence in his statement under Sec.313 Cr.P.C., that he was stabbed by the deceased with spear and P.W.2 coming there with spear, attempted to assault him and when he warded off, it fell on the right thigh of the deceased. The Investigating Agency has not taken any step to enquire into the complaint lodged by A.8. Instead, the Officer simply referred the case as mistake of fact. Even the Investigating Officer – P.W.12 in his cross examination has stated that he did not know as to how injury was caused to A.8. He has also stated that he had not question the eye witnesses as to how A.8 sustained injuries. It is his duty while investigating two cross-cases registered with reference to the same transaction, to find out who is the aggressor as contemplated under Sec.588-A of the Police Standing Orders. He should find out who is the aggressor and then charge the aggressor. But in this case, he himself has given evidence that he has not chosen to examine the eye witnesses as to how A.8 sustained injury. He has also admitted that he has not examined the doctor, who treated A.8 as a witness in this case. When the investigation has not been properly done and the relevant facts to unfold the truth have not been placed before the Court, naturally the accused gets prejudiced and the benefit of doubt has to be given to the accused. Therefore, we are unable to accept the interested testimony of P.Ws.1 and 2 which is directly against the medical evidence adduced in this case. 14. Moreover, even with regard to the injuries found on P.W.2 – the doctor -P.W.9 who treated P.w.2 would say that he saw two lacerated injuries on his head, whereas P.W.s.1 and 2 would say that A.5 gave a cut on the head of P.W.2 while A.7 cut him on the back of the chest and the right hand. There is no cut injury either on the back of the chest or his right hand at all. It is the opinion of the doctor that a sharp edged weapon like aruval would not cause such lacerated injury. As per the evidence of P.Ws.1 and 2, only one cut was inflicted on the head of P.W.2 while the doctor found two lacerated injuries. It is the opinion of the doctor that a sharp edged weapon like aruval would not cause such lacerated injury. As per the evidence of P.Ws.1 and 2, only one cut was inflicted on the head of P.W.2 while the doctor found two lacerated injuries. In view of this discrepancy in the evidence of P.Ws.1 and 2 as the injuries could not have been caused in the manner as alleged, we have to reject that part of the case of the prosecution with regard to the injuries inflicted on P.W.2 also. P.W.1 claims that he was fisted on the chest by A.6, but doctor did not find any injury on P.W.1. Therefore, the entire case of the prosecution suffers from serious infirmity and in view of the above discussions, we are not inclined to uphold the conviction and sentence passed on the appellants. 15. In the result, the conviction and sentence passed on the appellants are set aside and the appeal stands allowed. Their bail bonds shall stand cancelled.