Bail SlipThe v. State rep. byThe Inspector of Police

Bail SlipThe Appellant/Accused namely Gopi was directed to be released on bailas per the order of this Court dated 23.8.2000 made inCrl.M.P.5055/2000 in Crl.A.645/2000.IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 12.12.2007CORAMTHE HONOURABLE MR. JUSTICE K.N.BASHACriminal Appeal No.645 of 2000Gopi .. Appellant/AccusedVs.State rep. byThe Inspector of Police,Krishnagiri Town Police Station,Dharmapuri District.(Crime No.562/95)... Respondent/ComplainantAppeal against the Judgment dated 31.07.2000 made in S.C.No.66of 1998 on the file of I Additional Sessions Judge, Krishnagiri.For Appellant:: Mr.K.Asokan, SC for Mr.N.Mohideen BashaFor Respondent:: Mr.J.C.Durai Raj, Govt. Advocate (Crl. Side)JUDGMENTA-1 is the appellant, who has come forward with this appealchallenging his conviction and sentence imposed by the learned FirstAdditional Sessions Judge, Krishnagiri made in S.C.No.66 of 1998,dated 31.07.2000 convicting the appellant for the offence underSection 304 Part-II I.P.C, and sentencing him to undergo rigourousimprisonment for a period of four years and imposing a fine ofRs.500/- and in default, to undergo simple imprisonment for a periodof three months. https://hcservices.ecourts.gov.in/hcservices/

2. There are four accused in this case. A-1 has beencharged for the offence under Section 304 Part-II I.P.C, and A-2 toA-4 have been charged for the offence under Section 302 r/w. 34I.P.C. A-1 to A-4 have also been charged for the offence underSection 324 I.P.C. in respect of the injury said to have been causedto P.Ws.1 and 2. The learned trial Judge, disbelieving theprosecution case, acquitted A-2 to A-4 for the charges levelledagainst them and convicted and sentenced A-1, the appellant herein asstated above.3. The prosecution version as unfolded during trial is asfollows:-(a) A-4 is the sister of the deceased Chinnaraj. A-3 is thehusband of A-4. A-2 is the brother of A-3. A-1 is the son of A-3 andA-4. There was a civil suit pending between A-4 and the deceasedChinnaraj for a period of more than 11 years before a Civil Court inrespect of the property dispute viz., a vacant site lying in front ofthe house of A-4. The civil case ended in favour of A-4 in the year1994. The deceased was proposing to file an appeal against thatjudgment. Therefore, there were strained feelings between thedeceased and the accused party. (b) 15 days prior to the date of occurrence, the family of A-4laid foundation for constructing a toilet in the disputed area. Onthe fateful day of occurrence i.e., on 29.04.1995 at about 9.30 a.m,the deceased along with his sons P.W.1, P.W.2 and one Solaiyan wentto the vacant site of A-4 and questioned the conduct of A-4,constructing in the vacant site, which resulted in a wordy quarrelbetween A-4 and the deceased. At that time, A-4's daughter one Valliwas said to have thrown a brick on the deceased and the deceasedavoided the blow, which fell on A-4's head, causing bleeding injury.A-4 and her daughter-Valli raised hue and cry and thereafter, all theother accused viz., A-1 to A-3 rushed to the scene and each one ofthem fetched a Casuarina stick lying at the spot. A-1 beat thedeceased on his head with Casuarina stick. The deceased fell down.While P.W.1 and others attempted to lift the deceased, A-1 beat P.W.1on his left knee with Casuarina stick. A-2 beat P.W.1 on his rightfore arm with Casuarina stick. A-3 beat P.W.2 on his left thigh withCasuarina stick. P.W.2 also sustained injury on his right indexfinger at the hands of A-4 with Casuarina stick. Thereafter, P.W.1,P.W.2 and Solaiyan were said to have attacked A-1 and A-2 withCasuarina stick and the accused ran away from the scene. P.W.1, P.W.2and Solaiyan took the injured and the deceased to the GovernmentHospital, Krishnagiri. (c) P.W.9-Dr.Rajagopalan attached to the Government Hospital atKrishnagiri examined the deceased on 29.04.1995 at 10.00 a.m. TheDoctor was informed that the deceased sustained injury at the handsof five known persons with "Thonnai, Crow-bar, Knife and Stick". Thedeceased was found in an unconscious stage. The Doctor noted a https://hcservices.ecourts.gov.in/hcservices/ lacerated injury on the forehead of the deceased. P.W.9 Doctor hasalso sent an intimation to the Police under Ex.P.7. He found thefollowing injury on the deceased:-"1.Lacerated wound of size 10 x 1 x 1 cm over thefrontal region in the midline with swelling of size 6 x5 x 2 cm."Ex.P.6 is the Accident Register.(d) On the same day, at about 10.05 a.m, P.W.9 Doctor examinedA-1. A-1 stated that he was assaulted by five known persons withStick and Aruval. P.W.9 found a lacerated injury on the lips of A-1.Ex.P.8 is the Wound Certificate. He found the following injuries:-"1.Lacerated wound of size 1 x 1 x 1 x 2 c.m. in the lower lip. 2.Shaky upper left inciser.3.Pain and tenderness in right side chest."(e) On the same day and at the same time, P.W.9 examined A-2 andhe gave Ex.P.9, Accident Register. He found the following injuries:-"1.Lacerated wound of size 6 x 1 x 1 cm in left parietal region. 2.Contusion of size 3 x 2 cm in left arm. 3.Pain and tenderness in left leg. 4.Contusion of size 4 x 2 cm in back."(f) On the same day, P.W.9 Doctor examined A-4, said to havebeen assaulted by five known persons with Aruval and Stick. He gaveEx.P.10, Accident Register. He found the following injuries:-"1.Lacerated injury of size 2 x 1 x ½ cm over theleft side of frontal region.2.Contusion of size 3 x 2 cm over right arm."(g) P.W.16, the Sub-Inspector of Police, received an intimationfrom the Government Hospital, Krishnagiri and went to the Hospitaland enquired P.W.1. He recorded the statement of P.W.1 under Ex.P.1at 10.30 a.m. Since the deceased was in a serious condition, on theadvise of the Doctor, was taken to St. John's Hospital at Bangalore.P.W.16 returned to Police Station and on the basis of Ex.P.1, heregistered a case in Crime No.562 of 1995 for an offence underSection 324 I.P.C. Ex.P.22 is the First Information Report. (h) On the same day, P.W.16, the Sub-Inspector of Police alsorecorded the statement of A-3 at about 11.00 a.m. at the GovernmentHospital, Krishnagiri and registered a case in Crime No.563 of 1995for an offence under Section 324 I.P.C. Ex.P.23 is the FirstInformation Report. (i) In respect of both the cases, viz., the report given byP.W.1 as well as the report given by A-3, P.W.16, Sub-Inspector ofPolice took up investigation in this case, went to the scene of https://hcservices.ecourts.gov.in/hcservices/ occurrence and prepared Ex.P.2 Observation Mahazar and Ex.P.24 RoughSketch. He recovered M.Os.4 to 10-Casuarina sticks and M.O.11-brokenbrick under Ex.P.3 mahazar from the scene of occurrence. He alsorecovered M.O.13-Saree, M.O.14-Jacket and M.O.15-inner garment fromone Valli under Ex.P.4 mahazar. He examined P.Ws.1 to 11 and recordedtheir statements. At 4.30 p.m, he recovered bloodstained clothesproduced by A-3 and A-4's daughter Valli. Thereafter, he examinedsome more witnesses. As A-1 to A-3 were taking treatment, he had notarrested them.(j) On 30.04.1995 at about 12.20 p.m, the said Chinnaraj died.The Doctor at St. John's Hospital, Bangalore sent Ex.P.19 deathintimation to the Koramangala Police.(k) P.W.14, the Sub-Inspector of Police attached to KoramangalaPolice Station stated that he received Ex.P.19 intimation on01.05.1995 about the death of Chinnaraj from St. Johin's Hospital andthereafter, on the basis of that intimation, he registered a case inU.D.R.No.46/1995 under Section 174 of the Code of Criminal Procedure.Ex.P.20 is the First Information Report. He came to know that alreadya case was registered by Krishnagiri Town Police Station in respectof the death of the deceased.(l) P.W.15, the Head Constable attached to Koramangala PoliceStation, went to St. John's Hospital on 01.05.1995 and conductedinquest over the dead body of the deceased. Ex.P.21 is the inquestreport. He has requested for conducting Post-mortem. (m) P.W.13, Dr.Thirunavukkarasu, who was working as Professor inForensic Science and Medicine Department at Victoria GovernmentHospital, Bangalore, conducted Post-mortem on the dead body of thedeceased on 02.05.1995 at about 9.35 a.m and he found the followinginjuries:- "1.Sutured wound present over top of head,situated 7 cm above glabella measuring 9 cm in length,obliquely placed.2.Both eyes contused.3.Abrasion present over top of right shouldermeasuring 3 cm x 3 cm."Ex.P.18 is the Post-mortem certificate. The Doctor was ofthe opinion that the death occurred due to COMA, as a result of Headinjuries sustained by the deceased.(n) P.W.10 Doctor examined P.W.1 on 06.05.1995 at about 11.45a.m. He found the following injuries:- "1.A scabbed abrasion on the right elbow.2.C/o. Pain on the left knee normal mobility."Ex.P.11 is the wound certificate. https://hcservices.ecourts.gov.in/hcservices/ (o) On the same day and at the same time, P.W.10 Doctor alsoexamined P.W.2 and he found the following injuries:- "1. 3 cm x 2 cm lacerated injury on the right fore arm. (Healing)2. Healed abrasion on the left thigh.3. Healed abrasion on the right lower leg."Ex.P.12 is the wound certificate.(p) P.W.16 received the case records from Koramangala Police andaltered the First Information Report in Cr.No.562/95 under Section324 I.P.C, into one under Section 302 I.P.C, and forwarded Ex.P.26Express Report to the leaned Judicial Magistrate, Krishnagiri and tothe Inspector of Police, Krishnagiri.(q) P.W.17, the Deputy Superintendent of Police, took up furtherinvestigation in this case and verified the materials collected fromP.W.16 including the statement of witnesses recorded by him. On06.05.1995 at about 6.30 a.m, he arrested A-2 and A-3 at Krishnagirifive road junction and thereafter, remanded them to judicial custody.He has sent the injured P.Ws.1 and 2 with a memo to the GovernmentHospital, Krishnagiri for medical examination. He has also examinedthe other witnesses and sent the material objects for chemicalexamination through the Court. He has received Ex.P.18 Post-mortemcertificate. He also received Ex.P.27, the document relating to theadmission of the deceased at St. John's Hospital. He examined P.W.9-Dr.Rajagopalan and P.W.10-Dr.Masillamani. P.W.17 referred the caseregistered in Crime No.563/1995 in respect of the report given by A-1as "mistake of fact" on 10.12.1995 as per his final report Ex.P.28. (r) After receiving Ex.P.15 chemical examination report,and after completion of the investigation, field a charge sheetagainst the accused for offences under Sections 302, 324, and 323 r/w34 I.P.C, on 10.12.1995. 4. When the accused were questioned under Section 313Cr.P.C. in respect of the incriminating materials appearing againstthem, each of the accused have come forward with the version of totaldenial and they have stated that they have been falsely implicated inthis case. They have not chosen to examine any witness on their side.5. Mr.K.Asokan, the learned Senior Counsel appearing forthe appellant vehemently contended that the prosecution has miserablyfailed to prove its case by adducing clear and cogent evidence. Hemade the following submissions:-The admitted version of the prosecution is that only theprosecution party are the aggressors. As A-4 was doing constructionwork in her vacant site, as she has succeeded in the Civil disputepending between herself and her brother-the deceased and only thedeceased along with his sons P.Ws.1, 2 and another son Solaiyanquestioned the conduct of A-4, which resulted in a wordy quarrel andultimately, A-4 sustained injury. https://hcservices.ecourts.gov.in/hcservices/

6. Only on hearing the hue and cry of A-4 and her daughterValli, the other accused viz., A-1 to A-3 rushed to the scene and thefact remains that A-1, A-2 and A-4 also sustained injuries. But thereis no proper explanation from the prosecution for the injurysustained by A-1, A-2 and A-4 and as such, the prosecution has notcome forward with the true version and the origin of the occurrencehas been suppressed. 7.Even assuming that A-1 is said to have attacked thedeceased, it is quite clear from the evidence adduced on the side ofprosecution that as A-1 is entitled to the right of the privatedefence in respect of mother A-4 as well as in respect of in theirproperty and only while exercising his right of private defence, A-1must have attacked the deceased and has given a single blow and thattoo, with the Casuarina stick lying on the spot and as such, he hasnot exceeded the right of private defence.8. Mr.J.C.Durai Raj, the learned Government Advocate(Criminal side) contended that the prosecution has proved its case byadducing clear and acceptable evidence through P.Ws.1 to 3. It issubmitted that P.Ws.1 and 2 are also injured witnesses and there isno infirmity in their evidence in so far as the prosecution relatingto the overt act alleged against A-1, the appellant herein. It issubmitted that P.Ws.1 to 3 have categorically stated that A-1 beatthe deceased with Casuarina stick on his head and P.W.13, Doctor,who has conducted Post-mortem, also found corresponding injury andtherefore, the evidence of P.Ws.1 to 3 is clearly corroborated by themedical evidence. Therefore, it is submitted that the prosecution hasproved its case in respect of A-1, the appellant herein.9. I have carefully considered the rival contentions putforward by either side and also thoroughly scrutinized the entirematerials available on record and perused the impugned judgment ofconviction.10. The prosecution, in this case, has heavily placedreliance on the evidence of P.Ws.1 to 3. The other witnesses viz.,P.Ws.4 to 7 have turned hostile. The fact remains that P.Ws.1 and 2are the sons of the deceased and P.W3 is the sister's son of thedeceased and as such, all the three witnesses are interestedwitnesses. Therefore, this Court has to scrutinize their evidencewith great care and caution.11. It is the admitted case of the prosecution that therewas a dispute between the deceased and A-4 and both of them arebrother and sister and a case was pending before the Civil Court inrespect of the vacant site lying in front of the house of A-4. It isalso not disputed by the prosecution that A-4 succeeded in the Civilsuit and as such, she is having right and title over the disputedproperty. It is also the version of the prosecution that on the https://hcservices.ecourts.gov.in/hcservices/ fateful day of occurrence, A-4 was doing construction work in respectof toilet, as already foundation was laid and construction work wasgoing on and on the date of occurrence and at the time of occurrence,the deceased along with his sons P.W.1, P.W.2 and Solaiyan, went tothe land of A-4 and quarrelled with her. The case of the prosecutionis that the quarrel was going on for more than half-an-hour. Thoughit is the version of the prosecution that at that time one Valli, thedaughter of A-4 came there and thrown a brick stone on the deceased,while the deceased avoided that blow, the said stone fell on the headof A-4, resulting in a bleeding injury, it is pertinent to note thatadmittedly, A-4 sustained the bleeding injury on her vital part ofthe body viz., on the head, the vulnerable portion of the body andP.W.9 Doctor found a lacerated injury on the left side head and acontusion on the right hand. The fact remains that there isabsolutely no explanation for the injury sustained by A-4 on herright hand. P.W.9 Doctor has also categorically admitted in hiscross-examination that the first injury viz., a lacerated wound foundon the head of A-4 could have been caused by a handle of "Aruval".The undisputed fact remains that the prosecution has not elicited anyanswer from P.W.9 Doctor that A-4 could have sustained an injury onher head viz., the first injury as per Ex.P.10, wound certificate, onthe head due to hit by a brick Stone. Only the defence has elicitedin the Cross-examination to the effect that A-4 could have sustainedinjury by the handle portion of "Aruval". Therefore, the nature ofinjury found on A-4's head clearly shows that A-4 could not havesustained such injury due to the attack on her by M.O.11-brick stone.It is also pertinent to note that M.O.11-brick itself is half brokenand further, it is not identified to be the same stone. Therefore,this Court is of the considered view that the prosecution has not atall properly explained the injury sustained by A-4. It is also seenthat even as per the prosecution version, only after A-4 sustainingbleeding injury and only after A-4 and her daughter raised hue andcry, the other accused viz., A-1 to A-3 rushed to the scene ofoccurrence and only thereafter, they attacked the deceased and P.Ws.1and 2.12. At this juncture, it is pertinent to note that apartfrom A-4, A-1 and A-2 also sustained injuries. A-2 has sustaineda lacerated wound on his head. A-1 also sustained a lacerated wouldon his lips. There is no proper explanation from the prosecution inrespect of the injury sustained by A-1 and A-2. P.W.1 made a vainattempt to explain the injuries on A-1 and A-2 to the effect that allof them viz., P.Ws.1 to 3 attacked A-1 and A-2 with Casuarina stick.P.W.2 on the other hand, made a vague statement to the effect thatall the accused attacked the deceased with Casuarina stick. P.W.3 hasnot at all whispered a word whether A-1 and A-2 sustained injury atall. Therefore, it is crystal clear that the prosecution has not comeforward with the true version and in view of the non-explanation ofthe injury sustained by the accused, it is very clear that theoccurrence could not have taken place in the manner as alleged by theprosecution. https://hcservices.ecourts.gov.in/hcservices/

13.As already pointed out that A-4 sustained an injury onthe vital part viz., on her head, the explanation offered by theprosecution to the effect that the Stone was thrown by A-4'sdaughter, Valli and the same fell on A-4's head, on the face of it,is unbelievable and unacceptable. It is seen that the prosecutionparty viz., the deceased along with his sons viz., P.Ws.1, 2,Solaiyan and P.W.3 went to the land of A-4. Admittedly, A-4succeeded in the Civil dispute pending between herself and thedeceased and she was present only in her land and doing constructionwork and the prosecution party quarrelled with her, which makes itcrystal clear that only the prosecution party are the aggressors.Even as per the prosecution version, only after hearing the hue andcry of A-4 and her daughter Valli, the other accused rushed to thescene of occurrence and they have taken the Casuarina stick, whichwas lying on the spot and A-1 is said to have given a single blow onthe head of the deceased. 14. At this juncture, it is also relevant to note that theInvestigating Agency has also not properly investigated the complaintgiven by the accused, which was registered as per Ex.P.23 FirstInformation Report. It is also relevant to note that even theInvestigating Officer P.W.16 has categorically admitted that accused1 to 3 have been admitted in the hospital and they were undergoingtreatment. The fact remains that A-1 to A-3 went to the hospital atthe earliest point of time, more or less, at the same time thedeceased was admitted at the Government Hospital, Krishnagiri,whereas, P.Ws.1 and 2, the so-called injured witnesses, have takentreatment long after the time i.e., only on 06.05.1995.15. This Court is of the considered view that thepossibility of A-1 exercising his right of private defence in respectof his mother A-4 and the property cannot be ruled out. It is seenfrom the materials available on record, that the accused has not madeany specific plea in respect of the private defence of A-4 and theproperty. However, it is well settled that the plea of privatedefence need not be specifically raised and the Courts may only seeas to whether the plea of exercising private defence was probabilisedin facts and circumstances. 16. The Honourable Apex court in SURENDRA Vs STATE OFMAHARASHTRA reported in 2006 AIR SCW 4341 has held that plea ofprivate defence need not be specifically raised and the courts mayonly see as to whether plea of exercise of private defence wasprobable in facts and circumstances of case.17. Therefore, this Court has no hesitation to hold thatthe accused could have caused a single blow on the head of thedeceased, only while exercising his right of private defence whichunfortunately proved to be fatal. By no stretch of imagination, itcould be stated that A-1 has exceeded his right of private defence,as it is admitted in the version of the prosecution that A-1 hasgiven a single blow and that too, he has fetched a weapon viz., https://hcservices.ecourts.gov.in/hcservices/ Casuarina stick lying on the spot. He has not given any further blow.Therefore, the inevitable conclusion of this Court is that theconviction and sentence imposed on the appellant/first accused by thelearned trial Judge is liable to be set aside. 18. Therefore, for the above said reasons, the prosecutionhas miserably failed to establish its case in all aspects. As aresult, this appeal is allowed and the conviction and sentence passedby the trial Court are set aside. The appellant/A-1 is acquitted ofthe charge levelled against him. The bail bond, if any, executed byhim shall stand cancelled. The fine amount, if any, paid by theappellant/A-1 shall be refunded to him.sd/-Asst.Registrar/true copy/Sub Asst.RegistrarjrlTo1. The Judicial Magistrate, Krishnagiri.2. -do- Thro' Chief Judicial Magistrate Dharmapuri.3. The First Additional Sessions Judge, Krishnagiri.4. -do- Thro' Principal Sessions Judge, Dharmapuri.5. The District Collector, Dharmapuri.6. The Director General of Police, Chennai.7. The Public Prosecutor, High Court, Madras.8. The Superintendent, Central Prison, Vellore.9. The Inspector of Police, Krishnagiri Town Police Station, Dharmapuri District.+1 cc To Mr.N.Mohideen Basha, Advocate, SR.73775.Criminal Appeal No.645 of 2000ku [co]gkg/6.6