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2005 DIGILAW 1551 (MAD)

Elumalai & Others v. State by Inspector of Police

2005-09-16

M.CHOCKALINGAM, N.DHINAKAR

body2005
Judgment :- (These appeals are preferred under Section 374 Cr.P.C against the order of the learned Additional Sessions Judge, Villupuram made in S.C.Nos.13 of 1995 and 250 of 1998, dated 9.11.2000.) M.Chockalingam. J. This judgment shall govern these two criminal appeals, namely Criminal appeal Nos.1135 and 1150 of 2000. While the first one is brought forth by the accused Nos.1 to 3 and 5 to 7, the later is brought forth by accused No.4. They were tried in two separate sessions cases, one was in S.C.No.13 of 1995 in respect of accused Nos.1 to 3 and 5 to 7 and the other accused, namely A-4, was tried in S.C.No.250 of 1998. 2.The accused stood charged, tried and found guilty, as narrated below. Accused Nos.1, 2, 5 to 7 were found guilty under Sections 148 and 302 IPC and sentenced to undergo two years Rigorous imprisonment for the offence under Section 148 IPC and sentenced to undergo life imprisonment and were directed to pay a fine of Rs.500/- each, in default to undergo one month simple imprisonment. Accused Nos.3 and 4 were found guilty under Sections 147, 302 r/w Section 109 and 149 IPC and sentenced to undergo one year Rigorous imprisonment for the offence under Section 147 IPC and they were sentenced to undergo life imprisonment and were directed to pay a fine of Rs.500/-, in default to undergo one month simple imprisonment for the offence under Sections 302 r/w 109 and 149 IPC. All the sentences should run concurrently. 3.Both appeals were taken up together and heard, since they were coming out of same crime and tried by the same court, though in separate sessions cases. The short facts necessary for the disposal of these appeals could be stated thus: a) P.W.1, Udyakumar is the resident of Anna Street, Dindivanam. P.W.3, Selvi is the wife of the deceased. P.W.4, Ganga is the sister of the deceased and she was living in M.G.R. Street, Dindivanam. A-1 to A-6 were all closely related to each other and they are also related to P.W.1. b) On 6.5.1992 at about 9.30 p.m., when P.W.1 was in his house, he was informed that his sister Ganga was being attacked by some persons. On coming to know about the same, P.W.1 proceeded to the house of his brother, since deceased, to inform about the same. b) On 6.5.1992 at about 9.30 p.m., when P.W.1 was in his house, he was informed that his sister Ganga was being attacked by some persons. On coming to know about the same, P.W.1 proceeded to the house of his brother, since deceased, to inform about the same. When he went to the house of his brother Raghu, he was informed that Raghu had already gone to the place of occurrence, on coming to know about the incident. c) P.W.1 rushed to MGR Street, where he found that quarrel was going on and he interfered to pacify the situation. At that time, he found that his brother Raghu was supporting the cause of his sister. A-3 caught hold of the right hand of the deceased, while A-4 caught hold of his left hand. A-1 attacked the deceased with knife on his chest. A-2 attacked the deceased with knife on his stomach. A-4 also attacked the deceased with knife. A-5 and A-6 attacked the deceased with iron pipe and rod on his legs. P.W.1 and others requested the accused to stop cutting. Then all the accused fled away from the scene of occurrence. The occurrence was witnesses by P.Ws.1 to 4 and 7. d) The injured Raghu was taken to Government Hospital, Dindivanam. Later, he was taken to JIPMER hospital and on the way, he died. Then, P.W.1 proceeded to Dindivanam Police Station at about 11.45 p.m. P.W.12 Baskaran, Head Constable, who was on duty at that time, recorded the statement of P.W.1 and registered the case in Crime No.328 of 1992. The First Information Report is Ex.P.14. e) At about 10.30 p.m. on the same day, a case was also registered in Crime No.327 of 1992 at the instance of A-1 by the same Head Constable. P.W.15 Krishnamurthy, Investigationg Officer took up investigation in Crime No.328 of 1992, proceeded to the scene of occurrence, made an inspection and prepared Ex.P.19 Observation Mahazar and Ex.P.20 Rough sketch. He recovered M.Os under Ex.P.21 and Ex.P.22. He conducted inquest on the dead body of Raghu in the presence of witnesses and Panchayatdars and prepared Ex.P.23, Inquest report. The Investigating Officer has sent the dead body for postmortem with Ex.P.11, requisition. He recovered M.Os under Ex.P.21 and Ex.P.22. He conducted inquest on the dead body of Raghu in the presence of witnesses and Panchayatdars and prepared Ex.P.23, Inquest report. The Investigating Officer has sent the dead body for postmortem with Ex.P.11, requisition. Following requisition, the dead body was subjected to postmortem by Dr.Abdul Murari and has found the following injuries: 1) A stab wound is seen present on the frone of the left side of the chest wall in the 5th intercostal space, just lateral to the left border of the sternum, 1.5 cm x 0.5 cm x thoracic cavity deep. The wound is gaping, elleptical in shape horizontally placed with acute angles at both the extremities. The margins of the wound and the underlying structures are clean cut. The direction is antero-posterior and straight. It is communicating with the injury mentioned in column No.11 g). 2) A stab wound is seen present on the left anterior axillary fold, 7.0 cm. below the left acromion process, 1.5 cm x 0.5 cm x muscle deep. The wound is gaping, elleptical in shape horizontally placed with acute angles of both the extremities. The margins of the wound and the underlying structures are clean cut. The direction is upwards and medial. 3) A stab wound is seen present on the left side of the front of the abdomen, 8.5 cm. lateral to the umblicus and 6 cm. below the left subcostal margin, 2 cm. x 0.5 cm. x peritoneal cavity deep. The wound is gaping elleptical in shape horizontally placed with acute angles at both the extremities. The margins of the wound and the underlying structures are clean cut. The direction is antero-posterior and straight. It is communicating with the injury mentioned in column Nos.12 a), b) & d). 4) A stab wound is seen present in the right axilla, 1.5 cm. x 0.5 cm. x muscle deep. The margins of the wound and the underlying structures are clean cut. The direction is upwards and lateral. The edges of the wound are in approximation with each other. 5) Incised wounds (slashes) are present on the following parts: (i) postero-lateral part of the right upper arm extending onto the posterior part of the right shoulder, 12 cm. x 0.5 cm. x skin deep, horizontally placed. (ii) lateral part of the middle of the right upper arm, 3 cm. x 0.5 cm. 5) Incised wounds (slashes) are present on the following parts: (i) postero-lateral part of the right upper arm extending onto the posterior part of the right shoulder, 12 cm. x 0.5 cm. x skin deep, horizontally placed. (ii) lateral part of the middle of the right upper arm, 3 cm. x 0.5 cm. x skin deep, horizontally placed. (iii) right side of the face, on the cheek, 3 cm. away from the right ala of the nose, 1 cm. x 0.5 cm. x skin deep, horizontally placed. (iv) right side of the front of the chest wall, 1 cm. above the nipple, 5 cm. x 1 cm. x skin deep, horizontally placed. (v) left side of the scalp in the frontal region, 6 cm. Above the left eyebrow, 5 cm. x 1 cm. x bone deep, vertically placed. (vi) left side of the face over the middle of the zygomatic bone, 5 cm. x 0.2 cm. x skin deep, vertically placed. 6) Abrasions are present on the following parts:- (i) back of the left shoulder, 1 cm. x 1 cm. (ii) front of the mid thigh on the left side, 2.5 cm. x 1 cm. The Doctor has issued postmortem certificate Ex.P.15, opining that the deceased died out of shock and hemorrhage. f) On 10.5.1992, A-1 was arrested and he gave a confessional statement. Following the same, M.O.1 and M.O.2 knives and M.O.3 knife and M.O.4 iron pipe were all recovered under Ex.P.3, mahazar. Subsequently, all other accused were arrested. A-1, A-2, A-3 and A-6 were all sent to medical examination along with Police memo. A-1 was examined by P.W.14, Dr. Prabha and the accident register was marked as Ex.P.16. A-2 was examined and the accident register was marked as Ex.P.13. A-3 was examined by P.W.14 and the accident register was marked as Ex.P.17. A-6 was also examined and the accident register was marked as Ex.P.18. On completion of investigation, final report was filed. g) The case was committed to Court of Sessions and the case in respect of fourth accused was split up and two individual trial were conducted and same evidence was recorded. In order to substantiate the charges levelled against the accused, the prosecution examined 16 witnesses and relied on 25 exhibits and 8 material objects. g) The case was committed to Court of Sessions and the case in respect of fourth accused was split up and two individual trial were conducted and same evidence was recorded. In order to substantiate the charges levelled against the accused, the prosecution examined 16 witnesses and relied on 25 exhibits and 8 material objects. On completion of the evidence on the side of the prosecution, the accused were questioned under Sec.313 of the Code of Criminal Procedure as to the incriminating circumstances found in the evidence of the prosecution witnesses. They denied them as false. The appellants examined one witness on their side as D.W.1. The accused/appellants were found guilty, as stated above. Thus, A-1 to A-3 and A-5 to A-7 have brought forth the first appeal, while the other appeal was preferred by the fourth accused. 4.Advancing argument on behalf of the appellants, the learned counsel inter-alia made the following submissions: In the instant case, according to prosecution, the occurrence has taken place at about 9.30 a.m. on 6.5.1992. The prosecution has examined P.Ws.1,2,3,4 and 7, as eyewitnesses. P.Ws.2 and 7 have turned hostile. Thus, the prosecution had the evidence of P.Ws.1,3 and 4. Though it was claimed by the prosecution that the statements of P.Ws.3 and 4 were recorded by the Investigating Officer on the very day, they were sent to court only along with the final report and this would clearly indicate that P.Ws.3 and 4 were added as witnesses subsequently. This could be fortified by the non-mentioning of names of P.Ws.3 and 4 in the FIR and thus, the evidence of P.Ws.3 and 4 has got to be totally rejected and thus, the evidence of P.W.1 alone was available. 5.The learned counsel would further add that in the instant case, among the accused in the same transaction, A-1, A-2, A-3 and A-6 sustained injuries and the prosecution has marked the accident registers, namely Exs.P.16, 13, 17 and 18 respectively. It is pertinent to point out that they have sustained injuries at the time of occurrence. It is true, though injuries were simple, how they sustained injuries has not been explained by the prosecution. It is pertinent to point out that they have sustained injuries at the time of occurrence. It is true, though injuries were simple, how they sustained injuries has not been explained by the prosecution. Added further the learned counsel that in the instant case, a case came to be registered by the same Police at the instance of A-1 in Crime No.327 of 1992 at about 10.30 p.m. It is pertinent to point out that the case registered by the Police in Crime No.327 of 1992 at the instance of the accused was the earlier in point of time. The prosecution has not brought forth any material or record pertaining to the case. It is not even made known to the Court that whether final report was filed. The Investigating Officer has given more uncertain answer stating that final report would have been filed in that case. Thus, it would be clear that the Investigating Officer has neither looked into that case nor investigated the matter. Apart from that, in the instant case, according to prosecution, a case came to be registered by the respondent Police at 11.45 p.m. at the instance of P.W.1. P.W.1 has given evidence to the effect that he went to Police station at about 1.00 a.m. and apart from that the F.I.R. has reached the court at 6.00 a.m. Admittedly, the Magistrate Court is situated within 1 K.M. from the police station and how the delay of 5 to 6 hours was happened is not made known. Added strong circumstance is the alteration of accident register pertaining to the deceased, which is marked as Ex.P.12. A perusal of which would clearly reveal that originally a known person was mentioned and later 'a' has been cut and known persons has been mentioned. This would indicate that the earliest document, i.e. Ex.P.12, which came into existence, has been altered to suit the convenience of prosecution, which would go to the root of the matter. Considering all the above, it would be clear that the prosecution has not proved the case beyond reasonable doubt and hence, its case is liable to be rejected, but the trial court has failed to do so. Hence, justice has got to be rendered by this Court. 6.Heard the learned counsel for the State on the above contentions. Considering all the above, it would be clear that the prosecution has not proved the case beyond reasonable doubt and hence, its case is liable to be rejected, but the trial court has failed to do so. Hence, justice has got to be rendered by this Court. 6.Heard the learned counsel for the State on the above contentions. 7.This Court paid its anxious consideration to the rival submissions made, and made a thorough scrutiny of the materials available. It is not in controversy that the deceased died out of homicidal violence and the fact that an occurrence took place on 6.5.1992 at 9.30 p.m. is not also disputed. The deceased died immediately when he was taken to hospital. The case of the prosecution in this regard has been proved through the evidence of postmortem doctor and he has also issued Ex.P.15, postmortem certificate in that regard. These facts are never questioned by the accused either before the trial court or before this Court. Hence, it could be safely recorded so. 8.The case of the prosecution in the instant case is that all the accused, seven in number, have attacked the deceased indiscriminately with knives and iron pipes and caused instantaneous death. In order to substantiate the same, the prosecution relied on the evidence of P.Ws.1,2,3,4 and 7, out of whom P.Ws.2 and 7 have turned hostile. Thus, the trial court has relied on the evidence of P.Ws.1,3 and 4. As rightly pointed out by the learned counsel for the appellants, the trial court should have rejected the evidence of P.Ws.3 and 4 for more reasons than one. Though it was claimed by the prosecution that their statements under Section 161 Cr.P.C were recorded on the very day of occurrence, it has reached the Court along with the final report and the names of P.Ws.3 and 4 did not find place in the FIR and thus, it would be clear that they have been subsequently added as witnesses, as if they witnessed the occurrence and thus, the evidence of P.Ws.3 and 4 has got to be rejected. Thus, what was available for the prosecution was the evidence of P.W.1 only. Now, the question would be whether it would be safe to sustain a conviction on the basis of P.W.1's evidence, which remains uncorroborated. The Court has to necessarily answer in negative. Thus, what was available for the prosecution was the evidence of P.W.1 only. Now, the question would be whether it would be safe to sustain a conviction on the basis of P.W.1's evidence, which remains uncorroborated. The Court has to necessarily answer in negative. 9.In the instant case, so many circumstances were brought to the notice of the Court, which would suspect the case of the prosecution. It remains to be stated that the earliest document, which came into existence, is Ex.P.12, Accident Register copy of the deceased. A perusal of Ex.P.12 would clearly reveal that at first, "a known person" is mentioned and subsequently, it has been corrected in such a way that letter 'a' is struck off and person is made as persons. The second circumstance, which goes against the prosecution, is the injuries that were sustained by A-1, A-2, A-3 and A-6 and the copy of the accident registers namely Exs.P.16, P.13, P.17 and P.18 were also marked respectively. It is not the case of the prosecution that those injuries were sustained by the accused in a different transaction, but in the same transaction. If to be so, those injuries have got to be necessarily explained by the prosecution. It is true that those injuries are simple in nature. The contention of the prosecution that those injuries are simple in nature and therefore, the prosecution need not explain them has got to be rejected in view of the decision of the Supreme Court reported in 2002 SCC (Crl) 1659 (Subramani and others Vs. State of Tamil Nadu). Though injuries found on the accused are simple, it does not mean the prosecution is relieved of its obligation from explaining the same. In the instant case, it is true that those injuries are simple, but a feeble attempt was made through P.W.1 and the explanation given by P.W.1, under the stated circumstances, is thoroughly unacceptable and the injuries found on the accused remained unexplained. 10.In the instance case, it is an admitted position that A-1 appeared before the respondent Police and has given a complaint, on the basis of which, a case came to be registered by the respondent Police in Crime No.327 of 1992 at 10.30 p.m. and the same was the earliest before the case, in question. 10.In the instance case, it is an admitted position that A-1 appeared before the respondent Police and has given a complaint, on the basis of which, a case came to be registered by the respondent Police in Crime No.327 of 1992 at 10.30 p.m. and the same was the earliest before the case, in question. In the instant case, the case was registered only at 11.45 p.m. Admittedly, the cases in Crime Nos.327 and 328 of 1992 are part of the same transaction. When the case was registered in Crime No.327 of 1992, which is part of the transaction of the case in question, a duty is cast upon the respondent Police to investigate that case properly. But, in the instant case, it is a matter of shock and surprise to note that the Investigating Officer, while giving evidence, was not certain as to whether final report was filed in Crime No.327 of 1992 or not, and he would say, probably, it would have been filed. Thus, the answer given by the Investigating Officer would be indicative of the fact that the way in which he would have attended the other case and no one of the materials pertaining to Crime No.327 of 1992 was placed before the Court. This would also go against the case of the prosecution. 11.Apart from that, in the instant case, it is also brought to the notice of the court that the FIR has reached the Court only at about 6.00 a.m., but the case was registered at 11.45 p.m. It is also brought to the notice of the court that the Judicial Magistrate Court is situated within 1 K.M. from the Police station. There was an inordinate delay and such a delay, ordinarily cannot be a vitiating factor, but in the instant case, it has got to be looked into and considered in view of the other factors narrated above. Under the circumstances, this Court is of the opinion that the only evidence available for the prosecution was the evidence of P.W.1 and all other circumstances as narrated above, are throwing lot of doubts on the prosecution case. All put together, it would be quite unsafe to find the accused/appellants guilty, but the lower court has not considered all the above factors, which in the opinion of the court have got to be given effect. All put together, it would be quite unsafe to find the accused/appellants guilty, but the lower court has not considered all the above factors, which in the opinion of the court have got to be given effect. Thus, the appellants are entitled to acquittal from all the charges levelled against them. 12.In the result, these criminal appeals are allowed, setting aside the judgment of the trial court. The appellants in both the appeals are acquitted of all the charges levelled against them. The fine amounts, if any paid, shall be refunded to the appellants in both the appeals.