Criminal Appeal No. 1052 of 1999 · Madras High Court

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 16.8.20035CORAMTHE HONOURABLE MR JUSTICE N.DHINAKARandTHE HONOURABLE MR JUSTICE M.CHOCKALINGAMCriminal Appeal No. 1052 of 1999 State by Public Prosecutor... AppellantVsVarghese @ Varghese Anthony ... Respondent/Accused. Prayer: Appeal preferred by the State against the judgment passed by thelearned Principal Sessions Judge, Chengalpattu in S.C.No. 196 of 1996dated 20.10.97 For Appellant: Mr.V.M.R.Rajendran Addl. Public Prosecutor. For Respondents : Mr.K.Ashokan, SC for Mr. T.S.SrinivasanJ U D G M E N T(Judgment of the Court was delivered by M.CHOCKALINGAM, J)Aggrieved by the judgment of the Court of Principal Sessions, Chengalpattu, in Sessions Case No.196 of 1996, wherein A1 the respondentherein, who stood charged for the offences under Sections 341 and 302read with 34 I.P.C., along with A2, was acquitted, the State has broughtforth this appeal. So far as the other accused namely A2, is concerned, the Sessions Case was abated, since he died, pending the proceedings.

The short facts necessary for the disposal of this appeal canbe stated as follows:-P.W.1 is the wife of the deceased Narayana Nadar. P.W.5 and P.W.11 arethe daughter and son of the deceased respectively. At the time ofoccurrence, P.W.5 was doing her 10th standard in a School. A1 and thedeceased accused used to tease P.W.5 while she was going to school andreturning from school. Hence, the deceased reported the same to P.W.6, the https://hcservices.ecourts.gov.in/hcservices/ President of Nadar Association in that area. Apart from that, A1 went tothe extent of asking the deceased to give her daughter in marriage. On thedate of occurrence, namely 19.1.1995, between 8.00 a.m. and 9.00 a.m.,both the accused came to a petty shop run by P.W.1, which was attached toher house, and asked for a cigarette. P.W.1 told them that there was nocigarette. Since, it was not available, the accused scolded P.W.1 withfilthy language and left the place. At 7.00 p.m., both the accused againcame to the petty shop and asked P.W.1 for a cigarette. When she told thatit was not available, they damaged a biscuit bottle which was kept in theshop. Since the accused were often giving troubles, the deceased NarayanaNadar decided to report it to Nadar Association. While Narayana Nadar andhis wife were proceeding in a bicycle to meet P.W.6, the President of Nadar Association, they were waylaid by the accused. Both the accusedattacked Narayana Nadar with the casuarina sticks. The same was witnessedby P.Ws.1, 3, 11 and others. After attacking Narayana Nadar, both theaccused left the place immediately. P.W.1, 2 and 11 took the deceased tothe Government Hospital, Chrompet, in a lorry. P.W.12, the Doctor, who wason duty at that time, examined Narayana Nadar and declared him deadat 10.00 p.m. P.W.13, the Sub-Inspector of Police, who was in-charge of Tambaram Police Station, registered a case in crime No.143/95 on thestrength of the report, Ex.P1 given by P.W.1. The printed FirstInformation Report, Ex.P.14, was despatched to Court.

P.W.13 took up investigation, proceeded to the scene of occurrence, prepared Ex.P.3 the observation mahazar, in the presence of two witnessesand Ex.P.15, the rough sketch and recovered M.O.1, casuarina stick, M.O.2,casuarina stick, M.O.3, Atlas cycle, M.O.5, bloodstained earth and M.O.6,sample earth. Then, he proceeded to the mortuary. He conducted inquest onthe dead body of Narayana Nadar in the presence of witnesses and preparedEx.P.16, the Inquest Report.

Pursuant to the requisition given by the Investigating Officer,P.W.8, the doctor attached to the Government Hospital, Chrompet, conductedautopsy on the dead body of Narayana Nadar and found the followinginjuries. "1. Lacerated injury over the left parietal C shaped 5cms x 1 cm involving the parietal bone.2. Lacerated injury over the right parietal 6 cms x 1 cmx bone deep.3. Lacerated injury over the occipit 4 cms x 1 cm x muscledeep.4. Lacerated injury over the left forehead 3 cms x 1 cm xmuscle deep.

Contusion over abdomen epigastrium 3 cms radius. "The Doctor issued a post-mortem certificate, Ex.P.7 wherein he has opinedthat the deceased would appear to have died of haemorrhage and shock. 5. Both the accused surrendered before the XIII MetropolitanMagistrate, Egmore, Chennai, and the same came to the knowledge of the https://hcservices.ecourts.gov.in/hcservices/ Investigating Officer. After filing a petition to take the accused intopolice custody, on the orders of the Court, the accused were taken intopolice custody. The confessional statements of the accused were recordedand the accused were produced before the Court for remand. All thematerial objects which were recovered from the place of occurrence andfrom the dead body, were subjected to chemical analysis, as a result ofwhich Exs.P.10 and P.12, the chemical analyst's report and Ex.P11, theserologist's report were received by the Court. On completion ofinvestigation, the final report was filed. The case was committed to the Court of Sessions and necessary charges were framed. Pending trial, thesecond accused died.

In order to substantiate the charges levelled against the accused, the prosecution marched 13 witnesses, and relied on 18 exhibits and 11material objects. On completion of the evidence on the side of theprosecution, the respondent/accused was questioned under Section 313Cr.P.C. as to the incriminating circumstances found in the evidence of theprosecution witnesses. He denied them as false. No defence witnesses wereexamined, but Ex.D1 was marked. On analysis of the evidence adduced andon consideration of the rival submissions, the trial Court found therespondent/accused not guilty of the charges levelled against him andacquitted him. Hence, this appeal at the instance of the State.

Learned counsel appearing for the State interalia made thefollowing submissions. The lower Court on flimsy grounds had rejected the case of theprosecution. In the instant case, the eye-witnesses have clearly spokenabout the act of A1 along with the deceased accused. They have statedthat the A1/respondent herein and the deceased accused often used totease P.W.5 while she was going to school and returning from school. Themedical evidence adduced by the prosecution through the Medical Officerwho conducted autopsy on the dead body of the deceased Narayana Nadar andthe post-mortem certificate issued by him, would corroborate the evidenceof the ocular testimony. Added further, the lower court much relied on the Accident Register, Ex.P.13, given by P.W.12. Except that, the lower courthad not stated any reason for acquitting the accused. In the instant case, the discrepancies found in the evidence of the eye-witnesses are minor innature and the lower Court ought not to have placed any reliance upon thesame. Hence, the judgement of the lower court has got to be set aside, andthe respondent/accused has to be dealt with in accordance with law.

The Court heard the learned counsel for the respondent.

After careful consideration of the rival submissions made, thiscourt is unable to notice any merit in the appeal. It is pertinent to notethat Narayana Nadar, who sustained injuries, was taken to the GovernmentHospital, Chrompet, where he was declared dead by P.W.12, the Doctorattached to the said hospital. This fact is not questioned by therespondent/accused either before the court below or before this Court. Hence, the prosecution has successfully proved that the deceased died out https://hcservices.ecourts.gov.in/hcservices/ of homicidal violence.

In the instant case, the prosecution in order to prove its casehad marched number of witnesses. Few of them have spoken that they did notsee the occurrence. So far as the other witnesses are concerned, they havestated that they were present at the place of occurrence. It is pertinentto point out that the injured Narayana Nadar was taken to the GovernmentHospital, where P.W.12, the Doctor medically examined him and declared himdead. The statements given by the witnesses were actually recorded in the Accident Register, Ex.P13. It is not disputed by the prosecution thatthose witnesses who gave statements to P.W.12, the Doctor were also theeye-witnesses. It is not the case of the prosecution that they came toknow about the occurrence but they were witnesses to the occurrence. Aperusal of Ex.P.13, Accident Register, would clearly reveal that therelatives of Narayana Nadar took the dead body of Narayana Nadar to the Hospital and informed P.W.12, the Doctor, that they found the dead bodyin the place of occurrence. This would clearly reveal that these witnessessaw only the dead body of Narayana Nadar and they were not the eyewitnesses to the occurrence.

In the instant case, according to the prosecution, P.W.1 and otherrelatives took the dead body in a lorry and on the way to the hospital,P.W.1 got down from the lorry, went to the Police Station and gave areport, as a result of which, the case came to be registered. All theother eye-witnesses, who have clear knowledge, have spoken that they haveonly seen the dead body in the place of occurrence. But one of the eye-witnesses, namely P.W.1, on going to the police station, speaks about thenames of the accused. The earliest document which came into existence isthe Accident Register, Ex.P13, which could be made immediately after theoccurrence. So far as the F.I.R. is concerned, the lower Court hasclearly pointed out that the motive so alleged is flimsy. Apart fromthat, the F.I.R. could not have come into existence as putforth by theprosecution. It is not the case where the prosecution rests its case onthe circumstantial evidence but on the direct evidence through the eye-witnesses. There are ample materials to indicate that the eye-witnesseswho were examined by the prosecution, could not have seen the occurrenceat all. The lower Court was perfectly correct in rejecting the case of theprosecution in its entirety. It has to be pointed out that it is thepreposition of law that once the trial court, on evidence, has acquittedthe accused, unless there are compelling circumstances, the AppellateCourt should not interfere with the findings of the lower Court. Undersuch circumstances, this Court is of the considered opinion that it is nota fit case to interfere with the findings of the lower Court. https://hcservices.ecourts.gov.in/hcservices/