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2005 DIGILAW 851 (MAD)

Perumal & Others v. State

2005-06-14

M.KARPAGAVINAYAGAM, S.SARDAR ZACKRIA HUSSAIN

body2005
Judgment :- M.Karpagavinayagam, J. Accused 1 to 3 in S.C.No.97 of 1998 on the file of Principal Sessions Court, Madras are the appellants herein. They have been convicted for the offences under Section 341 and 302 read with 34 I.P.C., by the Trial Court. Challenging the same, this appeal has been filed. 2. The short facts are as follows, (a) A-1 to A-3 are brothers. The deceased Srinivasan and PW-4 Rathinavelu are friends. On 11.6.1997, there was a quarrel between the deceased and PW-4 Rathinavelu on the one side and A-1 Perumal on the other side. During the scuffle, A-1 took away the ration card belonging to PW-4. Therefore, next day morning i.e., on 12.6.1997, both the deceased and PW-4 went to the house of A-1 in order to get back the ration card. A-1 was not available in the house. Therefore, both the deceased and PW-4 warned the wife of A-1 that unless the ration card is returned, her husband would face serious consequences. Thereafter, they came back home. (b) The fateful occurrence took place on 12.6.1997 at 3.00 p.m. PW-1 Kousalya and PW-3 Kumar, a close relative of the deceased were in conversation with the deceased near south Arasamaram street junction. At that time, A-1 to A-3 came and questioned the deceased as to how he could abuse his wife in his absence. There was a wordy quarrel. Then A-2 and A-3 caught hold of the deceased and asked A-1 to attack the deceased and finish him off once and for all. The witnesses raised alarm. On hearing this, PW-2 Pankajam came to the scene of occurrence. At that time, A-1 with a knife, stabbed on the abdomen of the deceased. On seeing the gathering of crowd, A-1 to A-3 ran away from the scene of occurrence. (c) Pw-1 and PW-3 tried to get an auto to take the injured Srinivasan to the hospital. In the meantime, a Police Van came and the Police Constable, PC 8065, who came in that Police Van, helped the victim to get into the van and thereafter, the victim was taken to the hospital. Pws.1 and 3 also accompanied along with the victim to the hospital in the Police Van. (d) At about 4.10 p.m., on 12.6.1997, PW-10 Dr.Revathy admitted the injured Srinivasan, examined him, gave first aid treatment and issued accident register Ex.P-11. Pws.1 and 3 also accompanied along with the victim to the hospital in the Police Van. (d) At about 4.10 p.m., on 12.6.1997, PW-10 Dr.Revathy admitted the injured Srinivasan, examined him, gave first aid treatment and issued accident register Ex.P-11. (e) On getting phone message that the victim was admitted in the hospital, PW-12 Inspector of Police proceeded to the hospital and recorded Ex.P-13 statement from the injured Srinivasan and on that basis, he registered a case under Sections 341 and 307 IPC, in crime No.953 of 1997. Ex.P-14 is the First Information Report. Then, he went to the scene of occurrence and observed all formalities, like preparation of Ex.P-15 observation mahazar and Ex.P-16 Rough Sketch, seizure of material objects from the scene of occurrence, etc. (f) The injured Srinivasan died at 12.45 mid night and on receipt of death intimation, PW-12 altered the case into one under Section 302 I.P.C. and prepared Ex.P-19 express report and sent the same to the Court as well as to his superiors. (g) On 13.6.1997 between 7.00 a.m. and 10.00 a.m., PW-12 conducted inquest and prepared Ex.P-20 inquest report. Thereafter, the body was sent for post-mortem. (h) PW-6 Dr.Govarthan conducted post-mortem on the body of the deceased and noted several injuries including a sutured wound and issued Ex.P-7 Post-Mortem Certificate. (i) On 13.6.1997 at 1.30 p.m., PW-12 arrested A-1 to A-3 and on the confession of A-1, MO-1 bloodstained knife and driving licence of PW-4 Rathinavelu were recovered under mahazar Ex.P-22 in the presence of witnesses. (j) Then, the material objects were sent for chemical analysis. (k) After completing the investigation, on 15.10.1997, PW-12 filed final report against A-1 to A-3 under Sections 341 and 302 read with 34 I.P.C. 3. During the course of trial, PW-1 to PW-12 were examined; Exs.P-1 to P-22 were marked and Mos.1 to 6 were produced on the side of the prosecution. 4. When the accused were questioned under Section 313 of Code of Criminal Procedure, they denied their complicity in the crime. On the side of the defence, Exs.D-1 and D-2 were marked. 5. The Trial Court, having considered the materials placed before it, concluded that the appellants are liable to be convicted under Sections 341 and 302 read with 34 I.P.C. and accordingly convicted. That is the subject matter of the appeal, filed by all the accused. 6. On the side of the defence, Exs.D-1 and D-2 were marked. 5. The Trial Court, having considered the materials placed before it, concluded that the appellants are liable to be convicted under Sections 341 and 302 read with 34 I.P.C. and accordingly convicted. That is the subject matter of the appeal, filed by all the accused. 6. Mr.N.Doraiswamy, learned counsel appearing for the appellants took us through the entire evidence and contended that the materials available on record would bristle with several infirmities and as such, the prosecution has failed to establish its case beyond reasonable doubt and therefore, the appellants are entitled to be acquitted. 7. On this aspect, we have heard Mr.E.Raja, learned Additional Public Prosecutor. 8. We have perused the records and considered the submissions made by either side. 9. According to the prosecution, on 12.6.1997, at about 3.00 p.m., near south Arasamaram Street junction, there was a quarrel between A-1 to A-3 on the one side and the deceased on the other side, as the deceased on that day at about 10.00 am went to the house of A-1 and abused his wife when A-1 was not in the house. A-1 to A-3 questioned the deceased Srinivasan as to why he misbehaved with the wife of A-1. Thereupon, A-2 and A-3 caught hold of the hands of the deceased from behind and asked A-1 to attack and accordingly, A-1 with the knife stabbed the deceased on his abdomen. Then, the witnesses gathered and raised a hue and cry and immediately, A-1 to A-3 escaped from the scene of occurrence. 10. To prove this prosecution case, three eye witnesses PW-1 to PW-3 were examined and medical evidence have been adduced by PW-6, PW-10 and PW-11. One more important piece of evidence relied upon by the prosecution is Ex.P-13, the statement given by the deceased himself to PW-12 Inspector of Police, which is construed to be the dying declaration of the deceased. On the basis of this, the prosecution would venture to submit that there is no serious infirmity in the case of the prosecution, especially when A-1's presence is admitted in the place of occurrence, that too when A-1 sustained injuries during the course of the same transaction. 11. On the basis of this, the prosecution would venture to submit that there is no serious infirmity in the case of the prosecution, especially when A-1's presence is admitted in the place of occurrence, that too when A-1 sustained injuries during the course of the same transaction. 11. Though at first blush we feel that there are sufficient materials in the form of evidence of the eye witnesses, medical evidence, etc., a thorough probe into the matter would reveal that the prosecution has not come with clean hands. As a matter of fact, so many vital documents, which were referred to by the eye witnesses as well as the Police Officers have not been placed before the Court. 12. The occurrence took place at 3.00 p.m on 12.6.1997. PW-12 Inspector of Police, after receipt of information through Police Constable, PC 8065 from the hospital at 4.30 p.m., rushed to the hospital and recorded the statement from the deceased, which was marked as Ex.P-13. Ex.P-14 First Information Report would indicate that the same was registered at 6.30 p.m. But even prior to that, there are two documents, which were prepared by the Doctors, viz., Exs.P-11 and P-12. 13. Ex.P-11 is the accident register issued by PW-10 Dr.Revathy indicating that the deceased was admitted in the hospital at 4.10 p.m. accompanied by PC 8065. It is stated in Ex.P-11 that the deceased was alleged to have been attacked by three known persons with a knife. According to PW-10, in the light of Ex.P-11, the deceased was conscious when he was admitted in the hospital. 14. The other document is Ex.P-12, which is the case sheet relating to the treatment given to the deceased. It was prepared by PW-11 at 4.20 p.m. A perusal of Ex.P-12 case sheet would indicate that the deceased was alleged to have been attacked by three unknown persons. A close reading of Ex.P-12 would indicate that the deceased was in dangerous condition and the Doctors decided to conduct operation. At 4.20 p.m., consent of the wife of the deceased was recorded saying 'no objection' for the operation. 15. As indicated above, Ex.P-11 was prepared at 4.10 p.m. and Ex.P-12 was prepared at 4.20 p.m. Ex.P-12 has been marked through PW-11 and Ex.P-11 has been marked through PW-10. At 4.20 p.m., consent of the wife of the deceased was recorded saying 'no objection' for the operation. 15. As indicated above, Ex.P-11 was prepared at 4.10 p.m. and Ex.P-12 was prepared at 4.20 p.m. Ex.P-12 has been marked through PW-11 and Ex.P-11 has been marked through PW-10. PW-10 did not refer to the name of the person from whom the said statement as referred to in Ex.P-11 had been recorded. Similarly, PW-11 also did not refer as to who told him that the deceased was attacked by three unknown persons. But, the comparison of Exs.P-11 and P-12 would clearly indicate that the contents of the documents are diametrically opposite. Curiously, PW-12 has not chosen either to examine PW-11 or to produce Ex.P-12 before the Court. Even though PW-12 would admit in the cross-examination that he had seen the case sheet Ex.P-12 and came to know of the operation on the basis of no objection given by the wife of the deceased, admittedly, that document was not recovered by PW-12. In these circumstances, the proper person who can give explanation is the Police Constable PC 8065, who accompanied the deceased to the hospital. 16. The Inspector of Police received phone message and on the basis of that, he proceeded to the hospital. But, PC 8065, who has been referred to as the person, who accompanied the deceased to the Hospital, has not been examined by PW-12. There is no reason for the non-examination of the said witness, who alone would be competent to speak as to what transpired between the deceased and PC 8065. As a matter of fact, PW-12 would admit that PC 8065 was still in service and was working in the same Police Station at the relevant time, but however, no steps have been taken to examine him. As indicated above, PW-12 for the reason best known to him, did not choose to examine the Police Constable during investigation. However, PW-11 who was cited as one of the witnesses has chosen to mark Ex.P-12, which contains details, which are quite contrary to Ex.P-11. This shows that PW-12 has not performed his duty properly by not conducting investigation as to how the contents of Ex.P-12 had been recorded. 17. It is true that Ex.P-11 refers that the deceased was conscious. But, Ex.P-12 would reveal that the deceased was in worst condition. This shows that PW-12 has not performed his duty properly by not conducting investigation as to how the contents of Ex.P-12 had been recorded. 17. It is true that Ex.P-11 refers that the deceased was conscious. But, Ex.P-12 would reveal that the deceased was in worst condition. At about 4.20 p.m., the signature of the wife of the deceased was obtained for her consent for operation. According to PW-12, he came and recorded the statement from the deceased, after receipt of the message at 4.30 p.m. As per Ex.P-14, the same was recorded at 6.30 p.m. A perusal of the evidence of PW-12 would show that the operation commenced at 6.00 p.m. and concluded at 7.30 p.m. In that case, we are at a loss to understand as to how PW-12 could have recorded the statement from the deceased at 6.30 p.m., who was undergoing operation at that time. When at 4.20 p.m., the deceased was in danger condition, PW-12 should have obtained attestation from the Doctor at the time of recording statement from the deceased or at least he must have sent an intimation to the Magistrate for recording dying declaration. Admittedly, this was not done. Moreover, PW-1 and PW-3 were present in the hospital and as admitted by them, they did not chose to refer to the statement recorded from the deceased by PW-12. Had PW-12 came at 5.30 or 6.00 p.m., to the hospital to record the statement, he would have very well referred to the presence of Pws.1 and 3, who were already at the hospital. Neither PW-1 and 3 would speak about the PW-12 Inspector of Police recording the complaint, nor PW-12 would refer to the presence of Pws.1 and 3 at the hospital. 18. Further, Ex.P-11 accident register relating to the deceased contains only two injuries, one in the abdomen and another somewhere near the eye brows. But, the post-mortem certificate Ex.P-7 issued by PW-6 would indicate that there are more than five injuries in both chests, abdomen and parietal region. This shows that PW-10 has not noted down the injuries correctly while preparing Ex.P-11. Therefore, even to say that the deceased was conscious when he was examined, it would not be proper on the part of PW-10 to give such a certificate, especially when Ex.P-12 shows that the deceased was in worst condition. This shows that PW-10 has not noted down the injuries correctly while preparing Ex.P-11. Therefore, even to say that the deceased was conscious when he was examined, it would not be proper on the part of PW-10 to give such a certificate, especially when Ex.P-12 shows that the deceased was in worst condition. So, we are entertaining a doubt whether PW-12 would have come to the hospital at 6.00 p.m or 6.30 p.m and recorded the detailed statement from the deceased. 19. Another aspect would relate to the injuries caused on A-1. According to the prosecution, when the deceased was attacked, he kicked A-1, with the result A-1 fell down and the broken bottle pieces found in the ground caused injuries on the hands of A-1. This version of the prosecution is consistent throughout as evident from the statements given by the eyewitnesses. But, the fact remains, A-1 was the person who came to the Police Station even at 4.00 p.m. and immediately, a memo was prepared and he was sent to the hospital along with PC 6178 at 4.10 p.m. Ex.D-1 is the accident register issued by PW-10 with reference to the injuries caused on A-1. A-1 was admitted on the basis of memo Ex.D-2 issued by the Police. PW-12 would admit that he came to know that A-1 who sustained injuries during the course of same transaction, came to the Police Station and he was sent to the hospital with a memo. But, according to the prosecution, PW-12 arrested A-1 to A-3 on the next day, i.e., 13.6.1997 at about 1.30 p.m. PW-12 ventured to explain that though A-1 was admitted on the basis of Ex.D-2 memo on 12.6.1997 itself, he escaped from the hospital even at the evening hours of 12.6.1997. When PW-12 went to the hospital for recording the statement from the deceased, he tried to find out the whereabouts of A-1 who was admitted in the hospital, but he came to know from the Doctors and other patients that A-1 escaped. This explanation is quite strange. As a matter of fact, PW-10 would not refer to anything about the alleged escape of A-1. Further, it is quite strange on the part of PW-10 in not having obtained Exs.D-1 and D-2 and mark them during her chief examination. This explanation is quite strange. As a matter of fact, PW-10 would not refer to anything about the alleged escape of A-1. Further, it is quite strange on the part of PW-10 in not having obtained Exs.D-1 and D-2 and mark them during her chief examination. On the other hand, only at the instance of the accused, Exs.D-1 and D-2 have been marked during the course of cross-examination. This means, PW-12 has not chosen to place materials before the Court with reference to the injuries sustained by the accused. Though PW-12 would not refer to anything in the chief examination, it was elicited in the cross-examination that he came to know that on oral complaint given by A-1, he was sent to the hospital with a memo and in respect of the injuries caused on A-1, treatment was obtained at the hands of PW-10. He has also gone to the extent of saying that since injuries were caused in the same transaction, he directed for investigation with reference to the complaint given by A-1. If that is so, there are no answers for the questions as to what happened to the said investigation and what is the result of the same. 20. Further, peculiar aspect in this case is, though PW-12 while referring to Ex.D-1, would admit that it would relate to the injuries caused on A-1 during the course of the same transaction. Ex.D-2, the memo issued by the Police to take A-1 to the hospital would not support the said case. On the other hand, Ex.D-2 would refer to the complaint given by A-1 stating that he was attacked by one Muthu. This means, A-1 must have given some other complaint relating to the occurrence took place in some other place, in which he was attacked by some other person and on the basis of that complaint, Ex.D-2 memo might have been issued by the Police Officer and with that memo, PC 6178 took A-1 to the hospital. 21. Exs.D-1 and D-2 have been wantonly suppressed by the prosecution, after knowing that the contents of Ex.D-2 will not suit the prosecution case as it is not in consonance with Ex.P-13 complaint. But unfortunately, PW-10 has stated that she gave treatment to A-1 on the basis of Ex.D-2 memo issued by Police and issued Ex.D-1 accident register. 21. Exs.D-1 and D-2 have been wantonly suppressed by the prosecution, after knowing that the contents of Ex.D-2 will not suit the prosecution case as it is not in consonance with Ex.P-13 complaint. But unfortunately, PW-10 has stated that she gave treatment to A-1 on the basis of Ex.D-2 memo issued by Police and issued Ex.D-1 accident register. In the light of the fact that PW-10 admits that Ex.D-1 which relates to the injuries caused on A-1 is with reference to the incident took place on 12.6.1997 near south Arasamaram Street junction, wherein both the deceased and accused sustained injuries, it goes without saying that a counter complaint must have been obtained from A-1 and on the basis of the said complaint, A-1 might have been sent to the hospital. However, the Police Officer has not admittedly conducted any investigation with reference to that complaint and filed report on the same. 22. Therefore, from any angle, we are to take a view that the prosecution has not only not come with clean hands, but also tried to suppress the vital documents like the complaint given by A-1, Exs.D-1, D-2 and indulged in fabrication of Ex.P-13 as if PW-12 has recorded the statement from the deceased in the hospital at about 6.30 p.m. on 12.6.1997. 23. In the light of various infirmities pointed out above, we are not able to place any reliance upon the evidence of PW-1 to PW-3. When the prosecution case is not consistent and when it is established that the prosecution has not come with clean hands and also indulged in suppression of the material facts, we are unable to conclude that the materials available on record would be of any use to make this Court to conclude that the offences are proved. In view of the above discussion, we are constrained to hold that the prosecution case would bristle with all infirmities. 24. In view of the above discussion, we are constrained to hold that the prosecution case would bristle with all infirmities. 24. In this context, it would be proper to refer to the decision of the Supreme Court reported in AIR 1976 SC 2263 (Lakshmi Singh v. State of Bihar), wherein it is held that in a murder case, non-explanation of the injuries sustained by the accused, at or about the time of the occurrence is a very important circumstance, from which the Court can draw the inference that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version and that in a case where there is a definite version which explains the injuries on the person of the accused, it is rendered probable so as to throw doubt on the prosecution case. 25. In the result, the criminal appeal is allowed. The conviction and sentence imposed on the appellants/accused 1 to 3 are set aside. The appellants/accused 1 to 3 are acquitted of all the charges framed against them. The bail bonds, if any, shall stand cancelled.