Criminal Appeal No. 908 of 2000 · Madras High Court

Bail SlipThe accused 1 and 2 Viz., Raja A1 and Sivakumar A2 werereleased on Bail as per the High Court's order dated 28.2.2002in CRL.M.P.No.736 of 2002 made in Crl. Appeal No.908 of 2000.IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 29.08.2005Coram :THE HONOURABLE MR.JUSTICE N.DHINAKARandTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMCriminal Appeal No.908 of 20001. Raja2. SivakumarAppellantsv. Inspector of Police, Palacode Police Station, Krishnagiri District. RespondentCriminal Appeal filed under Section 374 (2) of the Code of Criminal Procedure against the judgment dated 07.07.2000 made in Sessions Case No.149/1999 on the file of the II AdditionalDistrict and Sessions Judge cum Chief Judicial Magistrate, Krishnagiri. For Appellants: Mr.AR.L.SundaresanFor Respondent: Mr.S.Jayakumar, Additional Public Prosecutor https://hcservices.ecourts.gov.in/hcservices/ JUDGMENT(Judgment of the Court was delivered byM.CHOCKALINGAM, J.)The appellants, two in number, who stood charged, tried andwas found guilty as below by the Court of II Additional SessionsJudge, Dharmapuri at Krishnagiri in Sessions Case No.149/1999,have brought forth this appeal : Accused 1 and 2 were charged under Section 302 readwith 34 of the Indian Penal Code. Accused 1 and 2 were charged under Section 307 readwith 34 ( 2 counts) of the Indian Penal Code. Accused 1 and 2 were charged under Section 324 readwith 34 of the Indian Penal Code.

The learned Sessions Judge, on trial, found the accusedguilty of the charges, awarded life imprisonment along with adirection to pay a fine of Rs.1,000/- carrying a default sentenceof rigorous imprisonment for three months, for the convictionunder section 302 read with 34 of the Indian Penal Code. For theconviction under section 307 read with 34 of the Indian PenalCode, the accused were awarded rigorous imprisonment for sevenyears and a fine of Rs.1,000/- carrying a default sentence ofrigorous imprisonment for three months, for each count. Theaccused were also directed to undergo rigorous imprisonment for aperiod of two years along with a fine of Rs.1,000/- carrying adefault sentence of rigorous imprisonment for three months, forthe conviction under section 324 read with 34 of the Indian PenalCode. The said sentences were directed to run concurrently.

The short facts necessary for the disposal of this appealare: (a) The appellants are brothers. P.Ws.1, 2 and 5 are thedaughters of Padavattammal, the deceased in this case. P.W.3 isthe son of the deceased. P.W.6 is the daughter in law of thedeceased and the wife of P.W.3. P.W.8 is the son in law of thedeceased and the husband of P.W.2. D.W.2 Lakshmi is the sisterof the appellants. P.W.3, on the false assurance of marriage, developed illicit intimacy with D.W.2 Lakshmi, After an affair, he refused to marry her and therefore, quarrels arose between thefamilies. About eight days prior to the occurrence D.W.2 Lakhsmiset fire to the field and cow shed of the prosecution witnessesand one day prior to the date of occurrence, when P.W.2questioned the said act of Lakshmi, she beat P.W.2. https://hcservices.ecourts.gov.in/hcservices/ (b) On the date of occurrence, i.e., on 25.07.1995 atabout 12.30 pm P.Ws.1, 2, 5 and 6 proceeded to the cow shed totake the burnt sticks.

Incised wound right forearm 10 cm x 7 cm x bone deep.

Incised wound left hand 15 cm x 10 cm x bone deep.

Incised wound right side of chest 3 cm x 1 cm x depthnot known.

Incised wound left side of chest 3 cm x 1 cm x muscledeep. He issued Ex.P.4 wound certificate for the injuries sustained byhim. P.W.2 was examined at 1.30 pm for her injuries by P.W.4,who issued Ex.P.5 noting the following injuries found on her:1.Incised wound left forearm wrist 7 cm x 3 cm x bonedeep. 2. Incised wound occipital region 10 cm x 5 cm x bonedeep. https://hcservices.ecourts.gov.in/hcservices/

3. Incised wound left parietal region 7 cm x 5 cm x bonedeep. 4. Incised wound right arm 7 cm x 3 cm x muscle deep.P.W.1 was also examined by P.W.4 at 08.00 pm and the doctor gavewound certificate, Ex.P.6, where he narrated the injuries foundon P.W.1, which are as follows :1.Incised wound right middle finger 2 cm x ½ cm x muscledeep. 2. Incised wound right ring finger 2 cm x ½ cm x skin deep.P.Ws.2 and 3 were referred to the Government Hospital, Dharmapurifor better treatment. (e) P.W.16, the Inspector of Police, on receipt of the firstinformation report, proceeded to the scene of occurrence at 02.15pm, made an inspection in the presence of two witnesses andprepared a mahazar, Ex.P.8 and drew a rough sketch, Ex.P.22. Heconducted inquest over the dead body of the deceased in thepresence of witnesses and panchayatdhars between 04.00 pm and07.30 pm and prepared Ex.P.23 inquest report. He recoveredM.Os.3 to 5, blood stained earth, sample earth and burnt sticks, from the place of occurrence under cover of mahazar, Ex.P.9.

Heissued Ex.P.2 requisition to the doctor to conduct autopsy on thebody of the deceased. (f) P.W.4, the doctor attached to the Government Hospital, Palacode conducted postmortem on the body of the deceased at10.00 am on 26.07.1995 and found the following injuries on her :1. An incised wound with gapping over the back of neck25 cm x 10 cm x 1 cm. Fracture and division of spinal column at C3 levelwith division of spinal cord. All the major vessels ofneck both caroleds, jugular severed in the wound. Headis attached to the body only by trachea and a piece ofneck in front of trachea. 2. Incised wound over right side of back 3 cm x 1 cm xmuscle deep. He has opined that the deceased would appear to have died ofshock and haemorrhage and injury to vital organ like spinal cord. He issued Ex.P.3 postmortem certificate. (g) Pending investigation, both the accused were arrestedat 06.00 am on 27.07.2005 when they were standing near Palacodebus stand.

The first accused gave the confession statement, theadmissible portion of which is marked as Ex.P.24, pursuant towhich M.O.1 koduval was recovered in the presence of witnesses https://hcservices.ecourts.gov.in/hcservices/ under cover of a mahazar, Ex.P.25. The second accused alsovolunteered to give a confession statement, which was recorded inthe presence of two witnesses. The admissible portion of thatstatement is marked as Ex.P.25, pursuant to which he producedM.O.2 knife was recovered in the presence of the same witnessesunder Ex.P.27, mahazar. Both the accused were sent to remand. All the material objects recovered from the place of occurrence, from the dead body and from the accused on production weresubjected to chemical analysis by the Forensic Department, on arequisition made by the Judicial Magistrate concerned. Oncompletion of the investigation, the Investigating Officer filedthe final report.

The case was committed to Court of Sessionsand necessary charges were framed. The case was taken up fortrial before the trial Court. 4. In order to substantiate the charges levelled againstthe appellants/accused, 17 witnesses were examined by theprosecution. The prosecution relied on 27 exhibits and 18material objects. On completion of the evidence on the side ofthe prosecution, all the accused were questioned under Section313 of the Code of Criminal Procedure as to the incriminatingcircumstances found in the evidence of the prosecution witnesses, and they flatly denied the same as false. Two witnesses wereexamined on the side of the defence, namely, D.W.1, the doctorattached to the Government Hospital, Palacode, who medicallyexamined Lakshmi and the said Lakshmi was examined as D.W.2, andthe wound certificate in respect of the injuries on D.W.2 wasmarked as Ex.D.1. After hearing both sides, the trial Court wasof the opinion that the prosecution has proved its case, andtherefore, found the appellants guilty of the charges framedagainst them and awarded imprisonment as mentioned above.

5. Learned counsel for the appellants, while advancing hisarguments, inter alia, would submit that though the prosecutionhas marched P.Ws.1 to 3, 5 to 7 as eye witnesses to theoccurrence, P.W.7 has turned hostile and all the witnesses, whohave supported the prosecution, are closely related. It is anadmitted position that there was prolonged enmity between thefamilies and thus the prosecution witnesses have come forwardwith a false version implicating the accused with the crime. Inthe instant case Lakshmi with whom P.W.3 had illicit intimacy onthe false assurance of marriage was examined as D.W.2. She hasnarrated the occurrence and she has also sustained injuries. Though she has been medically examined by D.W.1, the doctor andthe wound certificate in that regard has also been marked asEx.D.1, the prosecution had no explanation to offer as to theinjuries sustained by D.W.2. In the instant case, the attack on Lakshmi by the prosecution witnesses and the alleged occurrence, which is the subject matter of appeal before this Court, are https://hcservices.ecourts.gov.in/hcservices/ part and parcel of the same transaction, but in a clever manner, the prosecution has projected the attack on Lakshmi as anindependent transaction and has come out with this case.

It isalso an admitted fact by P.W.16, the Investigating Officer that acase came to be registered on the complaint made by the saidLakshmi in crime No.754/1995 and the case is also pending. But, the records in respect of crime No.754/1995 were not producedbefore the Court. So long as both the transactions are one andthe same, a duty is cast upon the prosecution to produce therecords enabling the Court to find out the truth of the matter, but the prosecution had miserably failed to do so and that wouldgo to show that the genesis of the occurrence has been suppressedby the prosecution. 6. Added further the learned counsel, that the occurrence, according to the earlier version of the prosecution, had takenplace at Melatheru, but, as could be seen from the evidence nowavailable before the Court, the occurrence had taken place at thefields of Mariappan and no explanation has been brought forth inorder to show how the discrepancy arose in respect of the placeof occurrence.

Apart from that, recoveries of the materialobjects 1 and 2 should have been rejected by the lower Court outright, since P.Ws.10 and 11, in whose presence the accused gaveconfessional statement, according to the prosecution, and whoattested the recovery mahazars, have turned hostile. Thus, theavailable witnesses are interested witnesses and if theirtestimony is carefully examined, their testimony would not standscrutiny. Apart from that, this is a case where the prosecutionhas miserably failed to produce necessary documents before the Court enabling the Court to find out the truth. Under thecircumstances, the lower Court should have rejected the case ofthe prosecution outright giving the appellants the benefit ofdoubts.7. The Court heard the learned counsel for the State on theabove contentions, paid its anxious consideration on thesubmissions made and also made thorough scrutiny of the availablematerials.

In the instant case, it is not in controversy that themother of P.Ws.1 to 3 and 5 died on account of homicidalviolence. In order to prove the same, the prosecution relied onthe evidence of P.W.4, the doctor, who conducted postmortem, andEx.P.3, postmortem certificate, issued by him, where he hasopined that death would have occurred on account of shock andhaemorrhage. Apart from that it was not a fact disputed by theappellants/accused either before the trial Court or before this Court and hence it can be safely concluded that the deceased diedon account of homicidal violence. https://hcservices.ecourts.gov.in/hcservices/

In order to substantiate the allegation against theappellants/accused, the prosecution examined number of eyewitnesses. They are closely related to the deceased. Evenaccording to the prosecution, P.W.3 gave a false assurance ofmarriage to D.W.2, Lakshmi, the sister of appellants 1 and 2 andthere was also an earlier occasion in which the said Lakshmi setfire to thatched shed of the deceased and on the date ofoccurrence when P.Ws.1 to 3 and 5 went to take burnt sticks, onthe way, when they questioned D.W.2 for her conduct of settingfire, a quarrel arose, in which Lakshmi was assaulted and beatenby the prosecution witnesses and in that regard, she went to thepolice station, gave a complaint and a case was registered incrime No.754/1995 and that occurrence took place at about 12.30pm. In the instant case the occurrence had taken place at 01.00pm and at 01.15 pm the first information report came intoexistence.

8.C/o pain over the back of left lower leg- no externalinjury. The injuries are lacerated and contused and it would be quiteclear that these injuries could not have been caused without theaid of weapons, and once the attack on D.W.2 was a part of thetransaction, a duty is cast upon the prosecution to explain as tohow such an injury was sustained by D.W.2 at that time. In orderto escape such a situation, the prosecution has now come forwardwith a case that at that time of occurrence D.W.2 was attackedand she left the place and subsequently another crime in crimeNo.752/95 has taken place, but, the materials are otherwise, which would be indicative that both the transactions are only oneand the same.

Apart from that, in the instant case, as rightly pointedout by the learned counsel for the appellants that the firstinformation report regarding the occurrence in which D.W.2 wasattacked, was not marked before the trial Court. Had it beenfiled before the Court, it would have enabled the Court to findout the truth, but the prosecution has miserably failed to do so. The materials placed before the Court would indicate that theorigin of the occurrence was the attack on Lakshmi and in thatregard, a case came to be registered, but no documentary or oralevidence was placed before the Court to prove it enabling the Court, to find out the genesis of the occurrence.

Apart from that, in the instant case, the place ofoccurrence, according to the earlier version of prosecution is Melatheru, but, according to the prosecution witnesses when theywere examined before the Court, the occurrence took place at thefields of Mariappan and this discrepancy was not brought to thenotice of the Court.

In the instant case witnesses are all closely relatedand their evidence is discrepant. The prosecution has also notproduced all the materials before the Court enabling the Courtto find the genesis of the case and there is no explanation forthe injuries sustained by D.W.2 and for the discrepancy in theplace of occurrence. Under such circumstances, it would be highlyunsafe to rely on their evidence and find the appellants/accusedguilty, and the lower Court has not looked at their evidence ormarshalled it properly to find out the truth of the evidence, buthas been carried away with the cogent evidence of the prosecutionwitnesses in crime No.752/1995, while the case in crimeNo.757/1995 is pending and under such circumstances, thecontentions put forth by the learned counsel for the appellantshave got to be accepted and the benefits of these doubts have got https://hcservices.ecourts.gov.in/hcservices/ to be given to the appellants/accused and they are entitledfor an acquittal. Accordingly, the conviction and sentenceimposed on the appellants/accused are set aside. The criminalappeal is allowed. The bail bonds executed by the appellantsshall stand cancelled. The fine amounts paid by theappellants/accused are directed to be refunded to them.mfSd/Asst. Registrar/true copy/Sub Asst. RegistrarCopies to1.The Second Additional Sessions Judge cum Chief JudicialMagistrate , Krishnagiri2.The Additional Sessions Judge, Krishnagiri, through the Principal District & Sessions Judge, Krishnagiri3.The Judicial Magistrate, Palacode. through thethe Chief Judicial Magistrate, Krishnagiri.3a. The Judicial Magistrate, Krishnagiri.4. The District Collector, Krishnagiri5. The Director General of Police, Mylapore, Chennai 4.6. The Superintendent of Central Prison, Vellore.7. The Public Prosecutor, High Court, Madras.8. The Inspector of Police, Palacode Police Station, KrishnagiriDistrict.+ 1 cc to Mr.AR.L.Sundaresan, Advocate SR No.36377GG(CO)SR/12.9.2005Crl.A.908 of 2000