CRL. Appeal No. 637 of 2000 · Madras High Court
Case at a glance
Provisions considered
- Indian Penal Code, 1860 ss. 34, 302, 304, 323, 324
- Code of Criminal Procedure, 1973 s. 313
Key paragraphs
- Para 2020. In the result, the conviction and sentence imposed on theappellants by the trial court are set aside and they are acquittedof all the charges framed against them. The criminal appeal isallowed. It is reported that the appellants are on bail. Bailbonds executed by them…
Judgment
BAIL SLIPThat the Appellants/Accused Nos.2 & 4 namely Velu @ Elumalai& Mari Naicker were directed to be released on bail by order ofthis Court dated 21.8.2000 in Crl.M.P.No.4893/2000 in Crl.A.No.637/2000.IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 19.08.2005CORAMTHE HONOURABLE MR. JUSTICE N.DHINAKARANDTHE HONOURABLE MR. JUSTICE M.CHOCKALINGAMCRL. APPEAL NO. 637 OF 20001) Velu @ Elumalai2) Mari Naicker.. Appellants/ Accused 2 & 4- Vs -The State by the Inspector of PoliceTiruporur CircleTiruporur – 7Chengalpattu District... Respondent/ Complainant Appeal preferred against the conviction and sentence passedby the learned Principal Sessions Judge, Chengalpet, made in S.C.No. 301 of 1998 dated 26.6.2000 as stated therein. For Appellants: Mr. V.VibhishananFor Respondent: Mr. V.Jayaprakash Narayanan GA (Crl. Side)JUDGMENT(JUDGMENT OF THE COURT WAS DELIVERED BY M.CHOCKALINGAM, J.)Aggrieved over the judgment of the court of sessions, Chengalpet, in S.C. No.301 of 1998, A-2 and A-4 in the saidsessions case, who stood charged along with others as narratedbelow, have broughtforth this appeal.
A-2 to A-4 were charged under Section 302 IPC; A-1 and A-3were charged under Section 304 read with 34 IPC; A-1 was chargedunder Section 323 IPC; A-2 to A-4 were charged under Section 324read with 34 IPC; A-1 was charged under Section 324 IPC; A-2 to A- https://hcservices.ecourts.gov.in/hcservices/ 4 were charged under Section 324 read with 34 IPC; A-2 wascharged under Section 324 IPC (6 counts); A-1, A-3 and A-4 werecharged under Section 324 read with 34 IPC (6 counts); A-3 wascharged under Section 324 IPC; A-1, A-2 and A-4 were charged under Section 324 read with 34 IPC; A-3 was charged under Section 323IPC; A-1, A-2 and A-4 were charged under Section 323 read with 34IPC; A-4 was charged under Section 323 IPC and A-1 to A-3 werecharged under Section 323 read with 34 IPC. On trial, the trialcourt found A-1 and A-3 guilty under Section 324 IPC and they weresentenced to the period already undergone and were directed to paya fine of Rs.500/= each with a default sentence of three monthsrigourous imprisonment. A-3 was also found guilty under Section323 IPC and he was sentenced to the period already undergone. A-4 was found guilty under Section 302 read with 34 IPC and he wassentenced to life imprisonment. A-2 was found guilty under Section 302 read with 34 IPC and Section 324 IPC (4 counts) andwas sentenced to imprisonment for life for the former offence, while he was sentenced to three months rigourous imprisonment oneach count for the latter offence. The sentences were directed torun concurrently.
The short facts necessary for the disposal of this appealcould be stated thus :-The appellants, the other accused, the deceased and P.W.s 1to 13 all belong to Royalpuram village. They were all neighbours. On 14.4.93 at about 7.00 p.m., Vinayagam, the complainant, alongwith his family members was witnessing television in his house. At that time, one Velu and his mother came over to the house of Vinayagam and complained that he was assaulted by A-1 near a pettyshop and A-1 questioned as to why Vinayagam and Velu spoke badabout him. Therefore, Velu and his mother went and questioned A-1 and A-1 assaulted them. They, accompanied by Vinayagam, went tothe house of A-1 and Vinayagam questioned A-1 about the assault on Velu. There was a wordy quarrel between A-1 and Vinayagam. Theywere separated by the other people.
In the meanwhile, one Arumugam came there and A-1threatened Arumugam and assaulted him with hands. When Vinayagamcaught hold of A-1, he escaped, went to his house, took out aknife and assaulted Vinayagam on the left side abdomen and lefthand.
In the meantime, on hearing the noise, other members ofthe family rushed to the house of A-1. At that time, A-2 cutP.W.2 on the left shoulder. A-4 beat P.W.9 with a stick. A-3beat P.W.3 on the left hand. A-2 cut P.W.2 on his head. WhenP.W.1 questioned about the same, A-2 cut P.W.1 on the left forearmand shoulder. A-4 beat the deceased with sticks and A-2 beat thedeceased on the head and left thigh. A-2 and A-4 beat P.W.2. Onhearing the commotion and the distressing cries of the witnesses, the neighbours gathered and the accused left the scene ofoccurrence with the weapons. https://hcservices.ecourts.gov.in/hcservices/
Immediately the injured were taken to the hospital.P.W.12, the doctor attached to the Government Hospital, Chengalpettreated them. Vinayagam was examined by the doctor and the doctorissued, Ex.P-2, the copy of the accident register. P.W.2 wasthereafter examined by the doctor and the doctor issued Ex.P-3,the copy of the accident register and Ex.P-4, the woundcertificate. The doctor examined P.W.8 and issued Ex.P-5, thecopy of the accident register. The doctor, thereafter, examinedP.W.10 and issued Ex.P-6, the copy of the accident register. Thedoctor examined P.W.9 and issued Ex.P-7, the copy of the accidentregister. Thereafter, the doctor examined P.W.1 and issued Ex.P-8, the copy of the accident register.
Vinayagam left the hospital and went to Tiruporur policestation and gave a complaint to the Sub-Inspector of Police. Thesaid complaint stands marked as Ex.P-1 on the strength of which acase came to be registered in crime No.257/93 under Sections 323,324 and 302 IPC at 5.30 a.m. Ex.P-16 is a copy of the printedfirst information report. The express report was despatched tocourt.
On receipt of a copy of the printed first informationreport, P.W.16, the Inspector of Police, took up investigation. He proceeded to the scene of occurrence where he prepared anobservation mahazar, Ex.P-17 and drew a rough sketch, Ex.P-18 inthe presence of two witnesses. He recovered bloodstained earth,M.O.4 and sample earth, M.O.5, under a mahazar, Ex.P-19. Heconducted inquest over the dead body of the deceased in thepresence of witnesses and panchayatadars and prepared inquestreport, Ex.P-20. During the inquest he examined the witnesses andrecorded their statements. After the inquest, a requisition wasgiven to the doctor to conduct autopsy on the dead body of thedeceased.
On receipt of the requisition, P.W.13, Professor of Forensic Medicine, Chengalpet Medical College and Hospital, conducted autopsy on the dead body of the deceased and found thefollowing injuries :-"1) Stab injury, horizontal seen on the front ofleft thigh gaping 5 x 7 x 1-1/2 cms cutting theskin, muscles and blood vessels.2) Cut injury on the back of left side scalp 6 x1 cm bone deep cutting the skin and muscles.3) Cut injury 2 x ¼ x ¼ cm seen on the pinna ofthe left ear cutting into two.4) Abrasion 9 x 1 cm on the left side face alongthe jaw bone with contusion underneath. Fractureof mandible at its centre noted.5) Abrasion on the front of right shoulder 12 x 1cm.6) Subdural clots seen on both cerebralhemispheres. Sub arachnoid haemorrhage seen. Cut section of brain shows petechial haemorrhages https://hcservices.ecourts.gov.in/hcservices/ all over the brain matter. "The doctor issued Ex.P-9, the post-mortem certificate, opiningthat the deceased would appear to have died of head injuriessustained by her.
On 22.4.93 at about 1.00 p.m., the investigating officerarrested A-1 and on the confession statement given by him, M.O.12,shirt and M.O.11, lungi, were recovered under a mahazar, Ex.P-23.The confessional statement given by A-1 stands marked as Ex.P-22.On the complaint of A-1 a case came to be registered by the Sub-Inspector of Police in crime No.258/93. A-4 was arrested by theinvestigating officer and on the confession statement given byhim, M.O.14, shirt was recovered under a mahazar, Ex.P-25. Theconfessional statement given by A-4 stands marked as Ex.P-24. A-2was arrested on 4.5.93 and he gave a confessional statement, theadmissible portion of which is marked as Ex.P-30, pursuant towhich a bloodstained dothi, M.O.2 and M.O.1, knife, were seizedunder a mahazar, Ex.P-31. All the material objects recovered fromthe scene of occurrence, from the dead body and from the accusedwere sent to court with a requisition to send them for analysis. The court in turn forwarded the material objects for analysis andobtained Ex.P-28, the chemical analysis report and Ex.P-29, theserology report. On completion of the investigation, theinvestigating officer filed the final report against the accused. The case was committed to the court of sessions and necessarycharges were framed against the appellants and the other accused.
In order to substantiate the charges framed against theaccused, the prosecution examined eighteen witnesses and relied onthirty-one exhibits and fifteen material objects. On completionof the evidence on the side of the prosecution, the accused werequestioned under Section 313 Cr.P.C. as to the incriminatingcircumstances appearing in the evidence of the witnesses. Theydenied them as false. No defence witness was examined, but on theside of the defence the accused filed a written statement alongwith the wound certificates issued to A-1, A-2 and A-4. Afterhearing the arguments advanced by either side, the trial courtfound the accused guilty and they were sentenced as stated above. Aggrieved over the said judgment, the appellants have broughtforththis appeal.
Learned counsel appearing for the appellants inter aliamade the following submissions. In the instant case, there hasbeen a long delay in registering the case. The occurrence, according to the prosecution, took place at about 7.30 p.m., butthe case came to be registered by the police only at 5.30 a.m. onthe next day morning. No explanation has been offered by theprosecution for the delay, which is fatal to the prosecution case. Secondly, in the instant case, three of the accused, namely, A-1,A-2 and A-4 have suffered injuries during the course of the sametransaction and they were also treated by the same doctor at the Government Hospital between 8.20 p.m. and 8.40 p.m. and woundcertificates have also been issued, but they were not placed bythe prosecution before the trial court and the same was placed https://hcservices.ecourts.gov.in/hcservices/ before the trial court only by the accused at the time when theywere questioned under Section 313 Cr.P.C. A perusal of the woundcertificates in respect of the accused would reveal that theysustained incised injuries, but the prosecution made a feebleattempt through one of the witness, who has spoken to the effectthat as a defence measure one of the witness attacked the accusedwith a stick once.
But injuries were sustained by A-1, A-2 andA-4 and that too they were incised injuries, which could not havebeen caused with the use of a stick and the prosecution has in noway explained the injuries suffered by the accused. That apart, the learned counsel would add that in the instant case, the placeof occurrence, according to the prosecution witnesses, alsodiffers. According to the prosecution, the occurrence took placein front of the house of A-1, which would clearly indicate thatthe prosecution witnesses have gone over there and the injuriesfound on the accused would also clearly reveal that they werearmed with deadly weapons and this would show that they were theaggressors and only at their instance the attack commenced. Apartfrom that, in the instant case, according to P.W.3, the occurrencedid not take place in front of the house of A-1, but somewhereelse. In the instant case, A-1 had given a complaint to thepolice and the same was registered as crime No.258/93.
If to beso, there was a duty cast upon the prosecution to produce thedocuments therefor, but the prosecution has not even cared to filethe first information report or the final report or the statementsrecorded. It is also pertinent to point out that theinvestigating officer would go to the extent of telling that hedid not know as to what happened to the investigation in thatcase. All the above would go to show that the prosecution did notplace the facts clearly before the trial court for the court tounderstand the genesis of the case or to find out the truth of thematter. Even according to the evidence of P.W.1, there was a freefight between the parties. The above circumstances would indicatethat all the materials though were brought to the notice of thecourt and the trial court though in its judgment referred to allthe materials, has erroneously found the appellants guilty, andtherefore the appellants are entitled for acquittal.
This Court heard the learned Govt. Advocate (Crl. Side)on the above contentions and also perused the recorded evidence, both oral and documentary.
It is not in controversy that the deceased Poongothaidied on account of homicidal violence. The same standsestablished through the evidence of the doctor, P.W.13, whoconducted autopsy and who issued the post-mortem certificate, Ex.P-9. The appellants have not disputed the cause of death ofthe deceased either before the trial court or before this Court. On the medical evidence this Court holds that the deceased, Poongothai, died on account of homicidal violence.
In the instant case, according to the prosecution theoccurrence took place on 14.4.93 and number of persons wereinjured. In the instant case, P.W.s 1 to 11 were shown as eye https://hcservices.ecourts.gov.in/hcservices/ witnesses out of whom P.W.s 3 to 7 have turned hostile. It istrue that P.W.s 1, 2, 8, 9 10 and 11 have supported theprosecution case. A perusal of the evidence of the abovewitnesses would clearly reveal that the entire evidence of theprosecution projected through the above witnesses were thoroughlydiscrepant as to narration of the events. Firstly the occurrencehad taken place at about 7.30 p.m., but it was brought to thenotice of the police by way of a complaint through one Vinayagamonly at 5.30 a.m. on the next day. It is also seen from therecords that the police station is situate at a distance of abouteleven kilometre from the scene of occurrence. The prosecutionwitnesses also engaged a van to go to the hospital for treatment. In the circumstances, the contention of the prosecution that therewas no conveyance available could not be accepted. Apart fromthat, it is the evidence of P.W.1 that the said Vinayagam, who isthe complainant, went to the police station immediately thatnight, but the first information report, as could be seen, hasbeen registered only at 5.30 a.m. on the next day. Thus theprosecution has no explanation to offer for the inordinate delaythat has occurred in lodging the complaint. Hence, this Court isof the considered opinion that the said inordinate delay is fatalto the case of the prosecution.
It is also pertinent to point out that in the course ofthe same transaction, A-1, A-2 and A-4 were injured. Theprosecution was not fair enough to mark the wound certificates orthe accident register copies in respect of the injuries sustainedby the above accused. On the contrary, the defence has producedthe accident register copies when the accused were questionedunder Section 313 Cr.P.C. A perusal of the accident registercopies issued in respect of the accused would clearly indicatethat they sustained incised injuries. If A-1, A-2 and A-4sustained injuries, the prosecution was duty bound to explain asto how they suffered the injuries. Though a feeble attempt hasbeen made by the prosecution through one of the witness to showthat in defence one of the witness attacked the accused with astick causing one injury, the said evidence is not convincing forthe simple reason that though the witness has stated that oneinjury was caused on the accused by the use of a stick, it ispertinent to point out that three of the accused have sufferedinjuries and that too incised injuries, which could not have beenpossible with the use of a stick. Hence, it could be well statedthat the prosecution has not made any attempt, much lessconvincing attempt to explain the injuries sustained by theaccused.
Yet another circumstance, which stood against theprosecution was that admittedly, according to the investigatingofficer, P.W.16, a case came to be registered on the complaintgiven by A-1 in crime No.258/93, but the prosecution has notproduced the first information report before the lower court.P.W.18, went to the extent of stating that he did not know as towhat happened to the investigation in crime No.258/93. A case, which has been registered at the instance of the accused, when it https://hcservices.ecourts.gov.in/hcservices/ is part and parcel of the transaction during which the deceased, the witnesses and A-1, A-2 and A-4 sustained injuries, theprosecution was not fair in not only failing to mark the woundcertificates issued to the accused, but also in not marking thefirst information report or the final report in crime No.258/93 oroffering any acceptable explanation as to what happened to theinvestigation in respect of crime No.258/93. This would clearlyindicate the fact that the prosecution was not fair before thetrial court.
Another added circumstance is the evidence of P.W.11.According to his evidence there was a free fight for about half anhour in the place and thus it could be seen that there was a freefight between the parties at the time of occurrence. In suchcircumstances, when two cases came to be registered in respect ofthe same transaction, one at the instance of the prosecutionwitnesses and the other at the instance of the accused, theprosecution is duty bound to investigate both the cases and placethe facts before the trial court so that the court couldunderstand the genesis of the case and decide it properly. But inthe instant case, one side picture has been completely suppressedand only the other side was focussed before the trial court. Thetrial court, though discussed the same in the first part of thejudgment, has not considered it in its later part, but found theaccused guilty.
Taking into consideration all the above aspects of thematter, this Court is of the considered opinion that theconviction and sentence imposed on the accused by the trial courtcannot be sustained and they are entitled for acquittal.
In the result, the conviction and sentence imposed on theappellants by the trial court are set aside and they are acquittedof all the charges framed against them. The criminal appeal isallowed. It is reported that the appellants are on bail. Bailbonds executed by them shall stand cancelled. GLNSd/Asst. Registrar/true copy/Sub Asst. Registrar https://hcservices.ecourts.gov.in/hcservices/ To1. The Judicial Magistrate No.I, Chengalpet.1a. -do- Thro The Chief Judicial Magistrate, Chingalpet.1b. The XVI Metropolitan Magistrate, George Town, Madras.1c. -do- Thro The Chief Metropolitan Magistrate, Egmore Chennai 8.1d. The Principal Sessions Judge, Chengalpet.2) The District Collector, Chengalpet.3) The Director General of Police, Chennai.4) The Public Prosecutor, High Court, Madras.5) The Superintendent of Central Prison, Cuddalore.6) The Inspector of Police, Tiruporur Police Station, Tirupur 7, Chengalpet District. CRL. A. NO. 637 OF 2000RA(CO)SR/10.9.2005
Questions this judgment answers
Which statutory provisions did this judgment involve?
Indian Penal Code, 1860 — ss. 34, 302, 304, 323, 324; Code of Criminal Procedure, 1973 — s. 313.
Which court decided this case, and when?
Madras High Court, on 19 Aug 2005. The bench was N DHINAKAR, M CHOCKALINGAM.
Precedent status how later indexed judgments have treated this case
No known negative treatment found in the Courts & Cases corpus.
This is a result about the indexed corpus, not a finding that the judgment remains good law. Coverage may be incomplete.