Research › Search › Judgment

Madras High Court · body

2010 DIGILAW 897 (MAD)

Arumugam v. State by Inspector of Police

2010-02-26

ARUNA JAGADEESAN

body2010
Judgment :- This Criminal Appeal is filed against the judgment dated 3.1.2003 passed in SC.No.448/2001 by the learned VII Additional Sessions Judge, City Civil Court, Chennai, convicting and sentencing the appellant/A1 for the offence under Section 148 of IPC to undergo two years of Rigorous Imprisonment and for the offence under Section 307 of IPC to undergo seven years of Rigorous Imprisonment and to pay a fine of Rs.1000/-, in default to undergo Rigorous Imprisonment for three months. 2. The case of the Prosecution is as follows:- a. The injured Govindavelu/PW.2 and his mother PW.1 and the Appellant/A1 and A2 to 6 are residing in the same area at Kalimanpuram, which is situated at the backside of the LIC Building, Anna Salai. On 2.12.2000 at 9.00 p.m., while PW.2 along with PW.3 Danavelu was carrying out repair in his fish cart in front of his house, A1 to A6 came there with deadly weapons and A1 attacked with a knife on the forehead of the injured and on receiving cut injury, PW.2 started running by raising alarm and fell down stumbled by a pillow and at that time, A2 to A6 attacked with knives on different parts of the body of the injured and PW.2 was unable to walk and fell down due to the injuries sustained. PW.3 took him to the Government Hospital, Chennai. Thereafter, PW.1 the mother of the deceased went to the Police Station and gave the complaint Ex.P1. b. PW.7 Doctor Nazir Ahamed on 2.12.2000 at 9.45 p.m. while he was in emergency ward gave first aid to the injured and issued accident register Ex.P6 and found the following injuries on PW.2:- "1. 6cm x 3cm ent injury root of nose extending into left upper eyelid, forehead, (n.c) exposed, shruken (?) eyeball left. 2. Left FA distal 1/4: Compound fracture with dorsal ext.t endons ent and exposed. 3. Right hand palm distal crease region ent injury tendons exposed. 4. Left Thigh: 6cmx4cm ent region ent muscles and (n.c.) exposed (upper 1/3) 2 other ent injuries left thigh with muscles exposed. 5. Left leg post aspect. 5Cm x 3 cm ent injury with muscles exposed. 6. 3cm x 1cm ent injuries (3 in no) left Arm. 7. Lower back. (Patient stable) cut injury (4cm x 1/2 cm). and admitted the injured for treatment by a specialist. 5. Left leg post aspect. 5Cm x 3 cm ent injury with muscles exposed. 6. 3cm x 1cm ent injuries (3 in no) left Arm. 7. Lower back. (Patient stable) cut injury (4cm x 1/2 cm). and admitted the injured for treatment by a specialist. On 2.12.2000 at 10.45 p.m. PW.6 Doctor Senthilnathan examined the injured and Ex.P5 is the opinion given by him. C. On 2.12.2000 on receipt of Ex.P1, PW.8 Inspector of Police attached to the D2 Anna Salai Police Station registered case in Cr.1854/2000 for the offences under Sections 147, 148, 341 and 307 of IPC and prepared FIR Ex.P7 and went to the place of occurrence and prepared observation mahazar Ex.P8 and a rough sketch Ex.P9 in the presence of PW.4 and other witnesses and recorded their statements and thereafter, went to the Government Hospital, Chennai and examined PW.2 and recorded his statement and seized Mo.6 Shirt and MO.7 Lungi from him under Form-95. On 8.12.2000 at 9.15 a.m arrested A5 and recorded his confession statement and on his confession, seized MOs.1 to 5 knives under a mahazar Ex.P16 and sent A5 for judicial custody. On 7.12.2000 A1 to A3 surrendered themselves in the court and sent the accused persons for judicial custody and examined the Doctors and recorded their statements and after completing investigation, filed a final report against the accused under Sections 147, 148, 341 and 307 of IPC read with 34 of IPC. 3. The case was taken on file in SC.No.448/2001 by the learned VII Additional Sessions Judge, City Civil Court, Chennai and necessary charges were framed. In order to substantiate the charges levelled against the accused, the prosecution examined as many as 8 witnesses (PW.1 to PW.8} and also relied on Exs.P1 to P16 and seven material objects (Mos.1 to 7). 4. On completion of the evidence on the side of the prosecution, the accused were questioned under Section 313 Cr.PC as to the incriminating circumstances found in the evidence of prosecution witnesses and the accused denied the same as totally false. 5. The court below, after hearing the arguments advanced on either side and looking into the materials available on record, found the appellant/A1 guilty and awarded punishments as referred to above and acquitted the other accused, which is challenged in this Criminal Appeal. 6. 5. The court below, after hearing the arguments advanced on either side and looking into the materials available on record, found the appellant/A1 guilty and awarded punishments as referred to above and acquitted the other accused, which is challenged in this Criminal Appeal. 6. This court heard the submissions of the learned counsel on either side and also perused the material records placed. 7. Mr.G.M.Syed Fasiuddin, the learned counsel for the Appellant assailed the judgment of the Trial Court on various grounds inter alia contending that when the Trial Court disbelieved a substantial part of the Prosecution story, but convicted the Appellant solely on the ground that the injury attributed to the Appellant was found in the accident register, admittedly when there were about seven injuries on the body of the injured and more particularly three of them were grievous in nature. Apart from the Appellant, the presence of A2 to A6 were spoken to by the Prosecution witnesses PW.1 to PW.3 to have attacked PW.2 with knives on different parts of the body. The learned counsel also pointed out to the various discrepancies in the Prosecution case and contradictions in the evidence of the eye witnesses PW.1 to PW.3 who are all related to each other and strenuously contended that the Trial Court ought not to have placed reliance on such evidence even as regards the Appellant. 8. Elaborating the points, the learned counsel for the Appellant submitted that Trial Court failed to consider that on every aspect of the Prosecution, it lacked credibility and drew the attention of this court to each of the said aspect. It is submitted that the place of occurrence as stated by the witnesses and in the FIR is doubtful as there is totally contradictory version between PW.1 on the one hand and PW.2 and PW3 on the other hand in that regard. The learned counsel relied on the decisions of the Honourable Supreme Court rendered in the cases of State of UP Vs. Khacheroo and others [1997-SCC-Crl-966], State of UP Vs. Bhagwan and others [1997-II-SCC-99] and D.V.Shanmugham and another Vs. State of AP [1997-5-SCC-349] to substantiate his contention that when the Prosecution failed to establish the place of occurrence beyond a reasonable doubt, then the benefit of doubt should be given to the accused. 9. Khacheroo and others [1997-SCC-Crl-966], State of UP Vs. Bhagwan and others [1997-II-SCC-99] and D.V.Shanmugham and another Vs. State of AP [1997-5-SCC-349] to substantiate his contention that when the Prosecution failed to establish the place of occurrence beyond a reasonable doubt, then the benefit of doubt should be given to the accused. 9. In the instant case, PW.1 the mother of PW.2 has stated that the occurrence had taken place in front of her house in Kalimanpuram when PW.2 was repairing his fish cart and was talking with her and PW.3. According to her, some unknown persons were also standing there. Whereas the injured PW.2 and his relative PW.3 would state that they were repairing the fish cart at the junction of Thayarsahib Street, which is about 500 ft. away from the house of PW.1. PW.2 has categorically stated that he did not come to the house of PW.1 at all and reiterated that he was carrying on the repair work of his fish cart at the junction of Thayarsahib Street. 10. PW.1 was confronted with the statement made in the complaint Ex.P1 and it is elicited that Tayarsahib Street is not stated to be the place of occurrence and she neither stated that PW.2 was chased by the accused to the said street. In the complaint, she has only stated that her son PW.2, PW.3 and herself were talking to each other and at that time, the Appellant, A2 Michal and A4 and few other persons whose identity is known came there and attacked PW.2. She did not say in the complaint that PW.2 was repairing the fish cart. But, PW.2 asserted in his cross examination that they were not sitting in front of PW.1s house and they were only at the junction of Thayarsahib Street at the time of occurrence. 11. In Ex.P8, observation mahazar, the place of occurrence is shown as in front of PW.1s house and it is also noted that blood stain was found on the earth. But, PW.8 the investigating officer admits that he has not seized the blood stained earth and no explanation is forthcoming for not seizing the blood stained earth, despite the fact that blood stain was found at the place of occurrence. But, PW.8 the investigating officer admits that he has not seized the blood stained earth and no explanation is forthcoming for not seizing the blood stained earth, despite the fact that blood stain was found at the place of occurrence. His evidence clearly indicated that none of the witnesses, more particularly, PW.2 and PW.3 have spelt out about the occurrence being taken place at the junction of Thayarsahib Street in their statements at the time of investigation and that they were engaged in the repair work of the fish cart. The aforesaid major discrepancy in the evidence of PW.1 to PW.3 and PW.8 raises a serious doubt about the Prosecution version regarding the place of occurrence. The testimonies of PW.1 to PW.3 are totally different from the story set out in the FIR and their statements recorded under Section 161 Code of Criminal Procedure. 12. Even regarding the lodging of complaint, there is no reliable evidence and the evidence of PW.1 who is alleged to be the author of the complaint, clearly indicated that the said complaint had not been given at the time and date as alleged by the Prosecution. According to PW.1, two signatures were obtained from her by the police and she is not aware as to what happened to the other paper in which she had signed. She admitted that there were many omissions and additions in the complaint. It is the categoric evidence of PW.1 that she had not given any written complaint and it was written by the police. Whereas PW.8 the Inspector of Police stated that PW.1 had brought a written complaint, which is in total contrary to PW.1s evidence. 13. Though it is alleged that the complaint was lodged at 22.30 hours on 2.12.2000 on the date of occurrence, but the complaint had been sent to the learned Magistrate only on 3.12.2000 at 2.00 noon. The distance between the Magistrate Court and the Police Station is only 2 1/2 km and PW.8 stated that one can reach the court within 10 to 15 minutes by going by vehicle. There is a delay of nearly 15 hours in the FIR reaching the Court. There is no explanation from the Prosecution for the said delay and PW.8, the investigating officer admitted that he has not examined the police constable who had taken the FIR to the court. There is a delay of nearly 15 hours in the FIR reaching the Court. There is no explanation from the Prosecution for the said delay and PW.8, the investigating officer admitted that he has not examined the police constable who had taken the FIR to the court. In the absence of any explanation, the possible inference that could be drawn is that the FIR had been recorded not at the time as alleged by the Prosecution, but much later than the one shown in the said document, more particularly when the testimony of PW.1 stood uncorroborated by the contents of Ex.P1. 14. The learned counsel relied on a catena of decisions of the Honourable Supreme Court reported in the cases of Meharaj Singh Vs. State of UP [1994-5-SCC-188], Arjun Marik and others Vs. State of Bihar [1994-Supp-2-SCC-372], Devinder Vs. State of Haryana [1997-SCC-Crl-570] and Harijana Thirupala and others Vs. Public Prosecutor, High Court of AP Hyderabad [AIR-2002-SC-2821] to countenance his argument that the object of insisting upon prompt lodging of the FIR is to obtain the earliest information regarding the circumstances in which the crime was committed including the names of the assailants, manner of attack, the weapons used and also the names of the eye witnesses and if there is a considerable delay, which is unexplained, it would often result in embellishment and it would also lead to the introduction of coloured version or exaggerated story. 15. As rightly pointed out by the learned counsel for the Appellant, in the instant case, apart from the unexplained delay in the FIR reaching the court, the manner of attack as stated by PW.1 in her evidence before the court is inconsistent with the statement made in the FIR. In the FIR, she has alleged that the first attack was made by one Michael (A2) with a knife on the left leg indiscriminately, Velu (A4) attacked him with his knife which was warded off by PW.2 and that cut fell on his hand and A1 caused injury on PW.2 on his back, over left eye brow and right finger. Whereas before the court, she stated that the first attack was made by A1 on the forehead of PW.2 and on receiving the said cut injury, PW.2 started running and A2 to A6 attacked him when PW.2 fell down on being stumbled by a pillow. Whereas before the court, she stated that the first attack was made by A1 on the forehead of PW.2 and on receiving the said cut injury, PW.2 started running and A2 to A6 attacked him when PW.2 fell down on being stumbled by a pillow. It is apparently clear that a different story is put forward by PW.1 before the court regarding the manner of attack. It has to be pointed out that the Prosecution witnesses were enimical to the Appellant due to the prior incident, wherein the Appellant was attacked by PW.2 against whom a criminal case is pending before the Magistrate Court. 16. The incident is said to have occurred at about 9.30 p.m. on 2.12.2000. The evidence led by the Prosecution clearly indicated that there was no light burning in the place of the occurrence either in Kalimanpuram or at the junction of Thayarsahib Street at the time of the incident. PW.8, the investigating officer admitted in his evidence that no electric post was shown in Ex.P9 plan and there is no other indication that light was burning in the place of occurrence. It is also admitted by him that PW.1 to PW.3 did not say that electric light was burning at the place of occurrence. In such circumstances, the occurrence having taken place in the night hours, in the absence of light in and around the place of the incident, it is more likely that PW.1 to PW.3 could not have seen and identified the assailants, more particularly when the assailants were more in number. 17. Another significant factor is that blood stained MO.6 and MO.7 that are said to have been seized from PW.2 have not been subjected to chemical analysis to find out the origin of blood. The recovery of Mos.1 to 5 weapons in this case is of no consequence, as PW.5 the witness examined to prove said recovery has not supported the Prosecution and there is no evidence to connect the weapons in the alleged commission of crime as the weapons are not subjected to chemical analysis. 18. It is seen that the Trial Court doubted the presence of A2 to A6 at the place of occurrence and did not accept the testimony of the eye witnesses namely PW.1 to PW.3. 18. It is seen that the Trial Court doubted the presence of A2 to A6 at the place of occurrence and did not accept the testimony of the eye witnesses namely PW.1 to PW.3. However, it did not reject their testimony as a whole and accepted their evidence merely on the ground that the injury on the forehead of PW.2 was spoken to by PW.1 to PW.3 attributing to the Appellant. According to the medical evidence, there were about seven injuries on different parts of the body, of which three were grievous in nature. PW.1 to PW.3 were unable to attribute the overtact to each of the accused. The manner of attack as narrated in the FIR shows that the grievous injuries were caused by the other accused, who had been acquitted by the Trial Court giving benefit of doubt. There is also evidence to show that the Prosecution witnesses were inimical to the Appellant due to previous enmity that prevailed upon between the Appellant and PW.2 in view of the prior incident wherein the Appellant had been attacked by PW.2 and his men. The discrepancy in the place of occurrence and other factors pointed out by the learned counsel for the Appellant clearly suggested that the occurrence had taken place not as alleged by the Prosecution. The inferences that are drawn in view of the inconsistent and unreliable evidence are equally damaging the Prosecution case. 19. Summing up the discussions made above, I am of the considered view that when a substantial part of the Prosecution story has been disbelieved by the Trial Court, however convicting the Appellant solely on the said inconsistent and uncorroborated testimony of PW.1 to PW.3 does not appear to be very sound as it is not based on reliable evidence. In such a situation, I am unable to uphold and sustain the Appellants conviction for the offence with which he is charged and he should be given the benefit of doubt and therefore, the conviction and sentence of the Appellant are liable to be set aside. 20. In the result, this Criminal Appeal is allowed. The conviction and sentence imposed on the appellant by the court below in SC.No.448/2001 are set aside and the Appellant is acquitted of the charges levelled against him. It is seen from the records that the Appellant had been enlarged on bail by this court. 20. In the result, this Criminal Appeal is allowed. The conviction and sentence imposed on the appellant by the court below in SC.No.448/2001 are set aside and the Appellant is acquitted of the charges levelled against him. It is seen from the records that the Appellant had been enlarged on bail by this court. The bail bond if any executed by the appellant shall stand terminated and the fine amount if any paid is ordered to be refunded to him.