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2008 DIGILAW 1001 (MAD)

State by Inspector of Police v. Mani

2008-03-20

P.D.DINAKARAN, R.REGUPATHI

body2008
JUDGMENT :- P.D. Dinakaran, J. This appeal is directed against the judgment of the learned Additional Sessions Judge, Dharmapuri, dated 11. 2005 made in S.C.No.74 of 1990, acquitting the respondent/A-1 from the charge of murder. Totally, there were three accused, against whom charges were framed and it is reported that the other two accused died pending trial and hence, the trial proceeded only as against the respondent/A-1. 2. For the sake of convenience, the other two deceased accused will be referred as per their rank in the charges, i.e., Accused Chinnasamy and Accused Govindan will be referred as A-2 and A-3 and the respondent/accused will be referred to as respondent/A-1. 1. The charge against the respondent/A-1, is that he along with A-2 and A-3, due to a dispute regarding partition of a property, on 24. 1988, at about 8.30 p.m., with an intention to cause the death of the deceased Ramasamy, inflicted injuries on him with a rice pounder and the deceased succumbed to the injuries while he was taken to the hospital, and thereby committed the offence under Section 302 read with 34 IPC. 2. The second charge is that during the course of same transaction, the respondent/A-1 and other accused inflicted injuries on P.W.4, when he intervenued and thus, committed an offence punishable under Section 324 read with 34 I.P.C. There are other charges framed, which need not be stated hereunder, as they were framed against other deceased accused. 1. The case of the prosecution, as unfurled by the oral and documentary evidence, is stated as hereunder: (a) P.Ws.1 and 2 are the daughter and son of the deceased Ramasamy. P.W.3 is the wife of the deceased Ramasamy. P.W.4 is the husband of P.W.1 and P.W.5 is the younger brother of P.W.3, i.e. brother-in-law of the deceased. The deceased was residing with his wife and children at Errapatti and P.W.1 was residing at Bettagoundanur. The father of the deceased Ramasamy had two wives and the deceased was the son born through first wife and the accused are the sons through the second wife. Few days prior to the date of occurrence, the deceased picked up a quarrel with his wife, P.W.3 and children, and hence, they left the house and went to the house of P.W.1. Few days prior to the date of occurrence, the deceased picked up a quarrel with his wife, P.W.3 and children, and hence, they left the house and went to the house of P.W.1. At that time, the deceased was alone and the accused, by means of fraud, persuaded the deceased in order to grab the land adjacent to the land of A-3. But, P.W.3 was pacified by P.W.1 and she returned back to the house of the deceased. Few days thereafter, P.W.1 also came and stayed with her parents. (b) While so, on the date of occurrence, i.e. on 24. 88 at about 8.30 p.m., the deceased was sitting in front of the house along with P.W.3, his wife, P.W.1, daughter and other children and a lantern light was burning in front of the house of the deceased. At that time, A-3 came there and shouted at the deceased to return the land as agreed by him, or otherwise, he would do away with him, for which, the deceased retaliated by saying that he would not give the land and that he can do anything he wants, which ended in a wordy quarrel between the deceased and A-3. During the quarrel, A-3 fisted on the face of the deceased and on seeing this, P.W.2, son of the deceased, went and brought P.Ws.4, 5 and others. In the meantime, the respondent/A-1 and A-2 came to the scene and assaulted the deceased on his left forearm with a stick. The deceased also, taking an aruval which was kept on the pial of the house, inflicted injuries on A-3. At that time, the respondent/A-1 took the rice pounder lying on the pial of the house and beat the deceased on his head three times and on receipt of the same, the deceased ran from the place and he was chased by the respondent/A-1, who assaulted him on various parts of his body. The deceased fell down unconscious. When P.W.4, husband of P.W.1 intervened, he was attacked by the respondent/A-1 by inflicting an injury with the koduval on his left wrist and A-2 bit him and assaulted him with the rice pounder on his back, shoulder, etc. A-2 also assaulted P.W.5 on his back, when he intervened. There was a skirmish at the spot between the witnesses and the accused. The prosecution witnesses, on seeing the deceased lying unconscious, placed him in a cot. A-2 also assaulted P.W.5 on his back, when he intervened. There was a skirmish at the spot between the witnesses and the accused. The prosecution witnesses, on seeing the deceased lying unconscious, placed him in a cot. The accused ran away from the scene and the villagers gathered. The deceased was taken to the hospital, but on the way at Perumpalai, he breathed his last and hence, the body was brought back to the house. It was at 4.00 a.m. on 24. 88. (c) Thereafter, P.W.1 and others went to Perumpalai Police Station, Pennagaram Circle, taking the dead body with them and on seeing the crowd, P.W.11 enquired and P.W.1 gave an oral statement, which was reduced into writing. The said statement is Ex.P.1. At about 8.00 a.m. on 24. 88, P.W.11 registered a case in Crime No.78 of 1988 for offences under Sections 302, 323, 324 r/w 34 I.P.C. and prepared express F.I.R., Ex.P.17. He sent the same to Court and copies to higher officials. The injured were sent to hospital with a police memo. (d) One Rajan, Inspector of Police (L & O), Pennagaram, conducted investigation in the case and since he died during trial, P.W.12, Inspector of Police, who knew him, was examined in Court and he had given evidence about the investigation conducted by said Rajan. On receipt of information over phone at about 12.30 p.m. on 24. 88, Inspector Rajan proceeded to police station, obtained a copy of the F.I.R. and took up investigation. He conducted inquest over the dead body of Ramasamy between 1.00 p.m. and 4.00 p.m. in the presence of witnesses and prepared inquest report, Ex.P.18. He examined the witnesses present at the time of inquest and thereafter, sent the dead body to the hospital through a police constable with a requisition, Ex.P.19, to conduct autopsy. (e) On receipt of the requisition and the dead body at about 5.50 p.m. on 24. 88, one Dr. C. Santha, Civil Assistant Surgeon commenced post-mortem on the dead body of Ramasamy at 10.00 a.m. on 24. 88 and found the following external injuries:- "1. Fracture left upper arm (Humerus bone) 2. A laceration 1 x 1 cm. On the forehead. 3. A laceration 4 x 3 x 1 cm. Below and behind the left ear. 4. Multiple irregular lacerations over the back of the scalp. 5. Fracture left 4 - 7 ribs. 6. 88 and found the following external injuries:- "1. Fracture left upper arm (Humerus bone) 2. A laceration 1 x 1 cm. On the forehead. 3. A laceration 4 x 3 x 1 cm. Below and behind the left ear. 4. Multiple irregular lacerations over the back of the scalp. 5. Fracture left 4 - 7 ribs. 6. Hyoid intact." The doctor issued Ex.P.22, post-mortem certificate, opining as to the cause of death that the deceased died of shock and haemorrhage due to multiple injuries about 32 hours prior to autopsy. (f) The Inspector of Police, continuing with the investigation, proceeded to the scene of occurrence, observed the spot and prepared observation mahazar, Ex.P.3 and rough sketch, Ex.P.20, in the presence of witnesses. He recovered M.Os.1 to 3, koduval and 2 rice pounders - one broken, from the scene of occurrence under a cover of mahazar, Ex.P.21. He also recovered blood-stained earth and sample earth, M.Os.10 and 11 under Ex.P.2 mahazar and the lantern lamp, M.O.4, under Ex.P.4 mahazar. The above mahazars were attested P.W.6 and another. On 24. 88, he examined P.Ws.3 to 5 and others and recorded their statements. (g) A-1 and A-3, who also suffered injuries during the occurrence, appeared before the doctor, P.W.9, who examined them and on the person of A-3, he noticed the following injuries:- "1. Incised wound of 4 cm. X 2 cm. X thoracic cavity. Right infra axillary region. Hissing sound heard with each respiration. The muscles acts as valve and furrow emphysema present. 2. Incised wound of 2 cm. X 1/2 cm. X 1/2 cm. Right lateral. 3. Incised wound of 1 cm. X 1 cm. X bone deep over the left eyebrow. 4. Incised wound of 5 cm. X 1 cm. X bone deep right frontal region. 5. Incised wound of 5 cm. X 1 cm. X bone deep left parietal region. 6. Incised wound of 4 cm. X 1 cm. X bone deep mid occipital region. The doctor has issued Ex.P.10, copy of accident register and opined that wound No.1 is grievous and other injuries are simple in nature. Similarly, the doctor examined A-1 and one Muthammal and found simple injuries on their person such as contusions, abrasions, etc. and issued Exs.P.11 and P.12, copies of accident register. (h) In the meanwhile, a police constable attached to Pennagaram Police Station received an intimation and the statement of A-3 on 24. Similarly, the doctor examined A-1 and one Muthammal and found simple injuries on their person such as contusions, abrasions, etc. and issued Exs.P.11 and P.12, copies of accident register. (h) In the meanwhile, a police constable attached to Pennagaram Police Station received an intimation and the statement of A-3 on 24. 88 at about 11.30 a.m. from the police constable attached to Outpost police station at Salem hospital and on the basis of the statement, he registered a case in Crime No.79 of 1988 for offences under Sections 324, 323 IPC. Since P.W.8, Sub-Inspector of Police (Law and Order) of the said Police Station was on other duty, the police constable took up the investigation and after some time, P.W.8 continued with the investigation and examined witnesses. P.W.8 was transferred and later, he came to know that the said case was closed as mistake of fact. Ex.P.9 is the copy of the F.I.R. in the said case. (i) The prosecution witnesses, viz., P.Ws.4 to 6 and one Kulandai Goundar appeared before the doctor, P.W.10, on 24. 88, along with the police memo and the doctor, on examining them, found lacerations and abrasions on their person and he opined that the said injuries are simple in nature. The doctor issued Exs.P.13 to P.16, wound certificates, in respect of the injuries found on them. (j) On 24. 88, P.W.12 on taking up investigation in the case, examined the postmortem doctor, Santha and obtained the post-mortem certificate, Ex.P.22. He examined a police constable and recorded his statement. On information received on 15. 88 at about 6.00 a.m., he proceeded to Chinnapatti bus stand and arrested the respondent/A-1 and A-2. On interrogation, they gave voluntary confession statements in the presence of P.W.6 and another. Thereafter, they were brought to the police station at 12.00 noon and later, sent to Court for judicial remand. The seized material objects were sent to Court with a requisition to forward them for chemical analysis and the Court, by forwarding the same, received Exs.P.7 and P.8, the chemical analyst report and serologist report respectively. He examined the doctors, P.Ws.9 and 10, who treated the accused and the witnesses respectively and obtained the wound certificates and the copies of the accident register in respect of the injuries found on them. On completion of investigation, P.W.12 filed the final report on 3. He examined the doctors, P.Ws.9 and 10, who treated the accused and the witnesses respectively and obtained the wound certificates and the copies of the accident register in respect of the injuries found on them. On completion of investigation, P.W.12 filed the final report on 3. 89 for offences under Sections 302, 324, 323 r/w 34 IPC. (k) The case was committed to Court of Sessions, which was taken up in Sessions Case No.74 of 1990 on the file of learned Additional Sessions Judge, Dharmapuri and charges were framed by the learned Sessions Judge against the respondent/A-1 and other accused and since the respondent/A-1 denied the complicity of the offence, the case was taken up for trial. In order to substantiate the charges levelled against the respondent/A-1, the prosecution examined P.Ws.1 to 12 and marked Exs.P.1 to P.22 and produced M.Os.1 to 11, as referred to above. After the completion of evidence on the side of prosecution, the respondent/A-1 was questioned under Section 313 Cr.P.C. on the incriminating materials appearing against him and he denied them as false and pleaded not guilty. No witness nor any documentary evidence was produced on his side. (l) The trial Court, on the evidence adduced, both oral and documentary and upon hearing the submissions of both sides finding that the prosecution failed in proving the guilt of the respondent/A-1 beyond all reasonable doubts, acquitted him under Section 235(1) Cr.P.C. by giving him benefit of doubt. Hence, the present appeal by the State against the acquittal. 5. Mr. N.R. Elango, learned Additional Public Prosecutor, strongly opposing the judgment of acquittal by the trial Court, submits that when there are eye witnesses to the occurrence and some of them having sustained injuries during the course of occurrence and more particularly, when the prosecution has established the motive part of the occurrence, the trial Court was not justified in acquitting the respondent/A-1 on flimsy grounds, viz., contradictions in the evidence of witnesses, non-examination of post-mortem doctor and non-explanation for the injuries sustained by one of the accused and hence, the judgment of acquittal has got to be set aside at the hands of this Court. 6. 6. On the other hand, learned counsel appearing for the respondent/A-1 while sustaining the reasons given by the learned trial Judge, submits that the prosecution has not established its case beyond reasonable doubts and the learned trial Judge finding various discrepancies in the evidence of witnesses, disbelieved the same by giving benefit of doubt to the respondent/A-1 and thus, acquitted him and hence, no interference is called for. 7. We have given our anxious consideration to the submissions of both sides and perused the entire materials placed on record. 8. It is not in dispute that the deceased Ramasamy died on account of homicidal violence. Though the doctor who conducted post-mortem was not examined by the prosecution, the post-mortem report has been marked as Ex.P.22, which clearly shows that the deceased died on account of shock and haemorrhage due to multiple injuries sustained. Hence, there can be no difficulty in coming to the conclusion that the deceased died due to homicidal violence. 9. But, the questions that are to be decided is whether the said injuries sustained by the deceased were inflicted by the respondent/A-1 joining with other deceased accused and whether the prosecution has established its case against the accused beyond reasonable doubts. 10. Before proceeding to analyse the evidence of prosecution witnesses, in an appeal against acquittal, though this Court, being an appellate Court, can exercise jurisdiction to re-appraise the evidence and arrive at a decision on the acceptability or otherwise of the judgment passed by the trial Court, the golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible, one in favour of the accused and the other in favour of the prosecution, the appellate Court must only take the view in favour of the accused and cannot and shall not substitute its views by holding that the other view in favour of the prosecution could have been taken by the trial Court for the purpose of setting aside the acquittal. In fact, the innocence of the accused is strengthened by such acquittal and the appellate Court must always be slow in interfering and dislodging with the findings of the trial Court. Keeping in mind the above said principle, let us analyze the evidence as well as the reasons that weighed the learned trial Judge in acquitting the respondent/A-1. 11. In fact, the innocence of the accused is strengthened by such acquittal and the appellate Court must always be slow in interfering and dislodging with the findings of the trial Court. Keeping in mind the above said principle, let us analyze the evidence as well as the reasons that weighed the learned trial Judge in acquitting the respondent/A-1. 11. The sum and substance of the prosecution case is that P.Ws.1 to 5 are the eye witnesses to the occurrence and according to them, due to a land dispute between the deceased and the accused, on the date of occurrence, at about 8.30 p.m., it was A-3, who came to the house of the deceased and picked up quarrel to hand over the land to him, which, when refused, ended in a skirmish. All the witnesses had spoken on similar lines. But, it is the case of the accused that it was P.W.1 and other witnesses who beat the deceased and caused his death, and it is their further case that in the melee, they also sustained injuries at the hands of the deceased, for which, a complaint has been preferred and it was registered in Crime No.79 of 1988, which is marked as Ex.P.9. But, however, after investigation, the said case was closed as mistake of fact. The further case is that A-3 has preferred a private complaint against the prosecution witnesses and others, which was committed to Court of Sessions in S.C.No.164 of 2001 and after the trial, the case ended in acquittal. 12. Now, let us see the incongruous circumstances, which led the learned trial Judge to arrive at a finding that the prosecution has miserably failed to prove its case against the accused beyond reasonable doubts. 13. The first incongruity noted by the learned Judge is the non-examination of the doctor, who did post-mortem on the dead body of the deceased Ramasamy. In paragraph 13 of the judgment, the learned trial Judge had discussed about this disparity. It is admitted that the prosecution has not examined the post-mortem doctor, but however, it has marked the post-mortem certificate, Ex.P.22, issued by one Dr. Santha, who was alleged to have conducted post-mortem on the dead body of Ramasamy, through P.W.12, the investigating officer. In paragraph 13 of the judgment, the learned trial Judge had discussed about this disparity. It is admitted that the prosecution has not examined the post-mortem doctor, but however, it has marked the post-mortem certificate, Ex.P.22, issued by one Dr. Santha, who was alleged to have conducted post-mortem on the dead body of Ramasamy, through P.W.12, the investigating officer. The learned trial Judge observed that the prosecution failed in examining the said doctor in order to substantiate the cause of death or as to the nature of injuries sustained by the deceased. The trial Court also observed that inspite of issuing warrant to produce the witness before the Court, the prosecution did not do so nor the prosecution has made an attempt to produce any other doctor, who knows the hand-writing and signature of Dr. Santha, in order to prove the authenticity of the post-mortem certificate, Ex.P.22. In our opinion, though non-examination of the post-mortem doctor is not fatal to the prosecution case in view of the direct evidence of eye witnesses to the occurrence, we may have to draw an inference that the prosecution ought to have examined the post-mortem doctor or should have examined any other doctor who knew the hand-writing and signature of the post-mortem doctor, to prove the authenticity of the document, Ex.P.22. 14. The next circumstance is the non-examination of independent witnesses in Court. Admittedly, this is a case where there was a clash between two groups and in the said clash, the deceased sustained grievous injuries, which resulted in his death. It is also not disputed that there was a counter-complaint by the accused. In such view of the situation, a duty is cast upon the prosecution to substantiate their case by examining some independent witnesses by way of corroboration to the eye witnesses. Even according to the prosecution, there were some other witnesses who also witnessed the occurrence and they have been examined during the course of investigation and we are at a loss of understand as to why the prosecution did not make any attempt to produce some independent witnesses in Court, which would have obviously strengthened the case of the prosecution by way of corroboration. Though it is well settled that the evidence of eye witnesses cannot be brushed aside as that of interested witnesses, in view of non-availability of any independent witness, in a case of this nature where both parties have grudges against each other in respect of a land dispute, the prosecution ought to have examined at least one independent witness in Court to prove its case, more particularly, when some of the independent witnesses have been examined by the prosecution during investigation. Therefore, we are convinced that the learned trial Judge has rightly disbelieved the evidence of P.Ws.1 to 5 as interested witnesses. 11. The next discrepancy which created a suspicion in the mind of the trial Court is that there was a delay in the first information report reaching the hands of the learned Magistrate. As per the evidence of P.W.1, in the melee, her father, the deceased, on receipt of head injuries, fell down and became unconscious and after the accused ran away from the scene on seeing the deceased lying down unconscious, the witnesses took him to the hospital, but on the way, he breathed his last. At that time, it was 4.00 a.m. on 24. 88 according to P.W.1. The first information report, Ex.P.1, was lodged at the police station at 5.00 a.m. and on the basis of which, a case was registered at 8.00 .a.m. However, it has reached the hands of the learned Magistrate only at 9.00 p.m. The explanation given by the prosecution is that the superior officers were on other duty at Chennai and hence, on receiving instructions from the higher authorities, he sent the express F.I.R. to the Inspector of Police, one Rajan, attached Pennagaram (L & O) Police Station. This explanation cannot be accepted in view of the fact that the said Inspector took up investigation even at 12.30 p.m. on that day and he was not at all cross-examined on the aspect of delay in sending the F.I.R. to Court, which throws a serious doubt as to the coming into existence of the first information statement itself in the time and manner suggested by the prosecution. 12. 12. That apart, as already stated and with the risk of repetition, as per the evidence of P.W.8, there was counter-complaint given by A-3 in respect of the same occurrence against the prosecution witnesses, which was received by P.W.8 at about 11.30 a.m. on 24. 88 along with an intimation from the outpost police station at Salem Government Hospital. The said complaint was registered and investigation was conducted by P.W.8 and in the said complaint, the witnesses herein were accused of assaulting the deceased Ramasamy and when the accused intervened, they were attacked by the witnesses. But, subsequently, the case has been referred as mistake of fact. It is an admitted fact that the accused have also sustained injuries and in fact, the evidence of P.W.1 and Ex.P.1, complaint, also show that in the melee, the deceased Ramasamy attacked A-3 on his head with a koduval lying on the pial of the house, which is corroborated with the accident register copy, Ex.P.10, in which the doctor has opined that wound No.1 found on the person of A-3 is grievous in nature. Under such circumstances, though the delay in the F.I.R. reaching the hands of the Court is not fatal, the delay assumes importance in view of the counter-complaint given on the side of the accused, which was, of course, later referred as mistake of fact. In view of the above suspicious features, we cannot but hold that the present first information statement, Ex.P.1, could have been prepared after much deliberation, after the receipt of the counter-complaint. 13. Further, according to P.W.12, in his cross-examination, he came to know about the reference of the counter-case of the accused only from one Rajendran and he, himself, did not know whether the said reference has been intimated to the accused and any final report has been filed before the Court to that effect. In the absence any definite evidence as to the reference of the case as mistake of fact and in the absence of any final report having been filed before Court to that effect, a doubt is cast upon the prosecution as to the genesis of its case against the accused. 16. The learned trial Judge also noticed that the statements of the prosecution witnesses under Section 161 Cr.P.C. though recorded on the very next day, i.e., on 24. 16. The learned trial Judge also noticed that the statements of the prosecution witnesses under Section 161 Cr.P.C. though recorded on the very next day, i.e., on 24. 88, the same were received by the learned Magistrate much later and hence, the learned Judge came to the conclusion that the said statements should have been concocted ones prepared after much deliberation. 17. In view of the above irreconcilable factors, which had thrown a serious doubt on the veracity of the prosecution case, we cannot but hold that the prosecution has miserably failed to prove its case beyond all reasonable doubts and the learned trial Judge was justified in acquitting the respondent/A-1/accused. In result, finding no reason to interfere with the well-founded judgment of acquittal, the appeal fails and the same is dismissed.