Criminal Appeal No. 168 of 2008 · High Court · 2009

Bail SlipCrl.A.No.1012 of 2007 and Crl.A.No.168 of 2008The Appellant/Accused 1 to 3 and 5 to 7 viz. 1.Devan,Male,S/o.Parasurama Gounder, Age 61 years,- A1, (2) Dhandapani, MaleS/o.Devan Age 33 years-A2, (3) Arjunan, Male, S/o.Devan, Age 28years-A3, (4) Peruma @ Perumayee, Female W/o.Devan , Age-53 years-A5, (5)Meena, Female, W/o.Devan Age 50 years -A6, (6) PalaniammalFemale, W/o.Dhandapani-A7 were directed to be released on bail as perthe order of the Hon'ble Court dated 11.01.2008 in Crl.M.P.1 of 2007in Crl.A.No.1012 of 2007.The Appellant/Accused-4 viz. Muthu @ Muthuraman @Muthuramalingam, S/o.Devan Male Age 54 years was directed to bereleased on bail as per the order of the Hon'ble Court date 14.3.2008in Crl.M.P.1/2008 in Crl.A.No. 168/2008.IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 19.06.2009CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE C.S.KARNANCriminal Appeal Nos.1012 of 2007 and 168 of 20081. Devan2. Dhandapani3. Arjunan4. Peruma @ Perumayee5. Meena6. Palaniammal.. Appellants in C.A.No.1012 of 2007/Accused Nos.1,2,3 and 5,6,77. Muthu @ Muthuraman @ Muthuramalingam.. Appellant in C.A.No.168 of 2008/Accused No.4Vs.State byInspector of Police,Deevattipatti Police Station,(Crime No.353/2005) .. Respondent in both the appeals/Complainant https://hcservices.ecourts.gov.in/hcservices/ These criminal appeals have been preferred under Section 374(2)Cr.P.C. against the judgment of conviction and sentence passed by thelearned 1st Additional Sessions Judge, Salem made in S.C.No.232 of2006, dated 24.10.2007. For Appellants : Mr.Xavier FelixFor Respondent : Mr.N.R.Elango, APP COMMON JUDGMENT(The judgment of the Court was delivered by M.CHOCKALINGAM, J.)These two appeals challenge the judgment of the AdditionalSessions Division, Salem made in S.C.No.232/2006 whereby theappellant in Crl.A.No.168/2009 ranked as A4 and the Appellants inCrl.A.No.1012/2007 ranked as A1 to A3, A5 to A7 stood charged, triedand found guilty and awarded punishments as follows:ACCUSEDCHARGESFINDINGSSENTENCESA-1 and A-2148 IPCGuilty1 year RI eachA-3 to A-7147 IPCGuilty6 months RI eachA-1 to A-3302 IPCGuiltyLife imprisonmentalong with fine ofRs.20,000/- each, indefault to undergo 1year RI eachA-4 to A-7302 r/w 149 IPCGuiltyLife imprisonmentalong with fine ofRs.20,000/- each indefault to undergo 1year RI each.A-3 and A-6323 IPCGuilty6 months RI eachA-1 and A-2324 IPCGuilty1 year RI eachA-7323 IPCGuilty6 months RI A-4 and A-5323 IPCGuilty6 months RI eachA-1 to A-7506(ii) IPCNot guilty..2. The short facts necessary for the disposal of these appealscan be stated as follows:(a) The deceased Arthanari and A1 are brothers. A2 to A7 are thefamily members of A1. The deceased and A1 had piece of landsadjacent to each other. There was a ridge in between the two land andthere was dispute over the ridge and stones were placed in the ridge https://hcservices.ecourts.gov.in/hcservices/ which was actually broken and there was quarrel in that regard.Therefore, panchayat was convened on 7.8.2005 at Mariamman templewhere the parties participated. At the time of Panchayat, there wasan enquiry conducted as to the breaking of the stones on the ridgeand also as to ploughing of the land. Both claim that they haveownership and possession and they would plough the land. On the nextday i.e., on 8.8.2005 at about 9.30 a.m., when P.Ws were makingattempt to plough the land, the same was questioned by the oppositeparty. Thus, there arose quarrel among them. At that time, theaccused constituted unlawful assembly. A1 armed with crow bar, A2armed with kuduval and A3 armed with lathi attacked the deceased andthe prosecution witnesses. A1 attacked the deceased with crow bar onthe right hand. A2 attacked the deceased on his head with Kuduval.A3 and others attacked the deceased with sticks and in that processthe deceased Arthanari died instantaneously. A1 to A7 ran away fromthe place of occurrence. (b) Immediately, P.Ws. 1 to 3 injured were taken to theGovernment Hospital and P.W.13 examined both P.Ws. 1 and 2 and gavetreatment and noticed the injuries as found in Ex.P.22 and Ex.P.21respectively. Equally, P.W.9 doctor medically examined P.W.3 andnoticed the injuries as found in Ex.P.16. On the same day, P.W.13doctor examined A1 where the injuries are noticed as found in Ex.D1.Equally, A2 and A3 were examined by P.W.14 doctor and the woundcertificate in that regard was Ex.P.25 and Ex.P.26 respectively. Onreceipt of the intimation, the Sub-Inspector of Police recorded thestatement made by P.W.1 and registered the case in Crime No.353/2005at about 11.30 p.m. on 8.8.2005. The express F.I.R. Ex.P20 along withEx.P1 complaint were despatched to the Court. On the same day, at theinstance of A1, a case came to be registered by the same police inCrime No.354/2005 under section 323 and 324 I.P.C. (c) Investigation was taken up by P.W.15, Inspector of Police.On receipt of the copy of the F.I.R. Ex.P20, Investigating Officerproceeded to the spot, made an inspection in the presence ofwitnesses and prepared the Observation Mahazar Ex.P9 and drew roughsketch Exs.P27 &P P28. The place of the occurrence along with thedead body were photographed through P.W.6 photographer and the photosand negatives were marked as Exs.P6 and P7 respectively. TheInvestigating Officer also recovered the material objects, namelysample earth and blood stained earth under a cover of mahazar.Inquest was conducted in the presence of witnesses and panchayatdarsand Ex.P29 Inquest report was prepared. Then, the statements of thewitnesses were recorded.(d) On 9.8.2005, A2 appeared before the Village AdministrativeOfficer-P.W.7 and gave confessional statement. The same was recordedin the presence of witnesses. Then, he was taken to the PoliceStation. P.W.15 Investigating Officer arrested A2 at 12.30hours on 9.8.2005. He gave confessional statement voluntarily. Thesame was recorded, pursuant to which, he produced crow bar, Koduvaland 5 lathis which were recovered under a cover of mahazar. The otheraccused were arrested at 16.30 hours on the same day i.e., on https://hcservices.ecourts.gov.in/hcservices/

9.8.2005. All the witnesses were examined. The dead body of Arthanariwas subjected to post mortem. P.W.10 doctor who conducted autopsyon the dead body of the deceased Arthanari has issued post mortemcertificate Ex.P.19 wherein he has opined that the deceased wouldappear to have died out of shock and haemorrhage due to multipleinjuries sustained by him. All the witnesses were examined and theirstatements were recorded. So far as Crime No.354/2005 at the instanceof the accused is concerned, the investigating officer closed thecase as one 'mistake of fact'. After completion of the investigationin Cr.No.353/2005, the final report was filed. (e) The case was committed to the Court of Sessions. Necessarycharges were framed. In order to substantiate the charges, theprosecution examined 15 witnesses and also relied on 30 exhibits and9 material objects. On completion of the evidence on the side of theprosecution, the accused were questioned under Section 313 Cr.P.C asto the incriminating circumstances found in their evidence on theside of the witnesses and they denied them as false. Three witnesseswere examined on the side of the defence, from whom, 13 exhibits weremarked. On completion of the evidence on either side, the Court heardthe arguments advanced on either side and took a view that theprosecution has proved the case beyond reasonable doubt and convictedthe accused and awarded the sentence of imprisonment as referred toabove. Hence, these appeals at the instance of the appellants.3. Advancing the arguments on behalf of the appellants learnedcounsel made the following submissions.(a)In the instant case, according to the prosecution theoccurrence has taken place at 9.30 a.m. on 8.8.2005. At the time ofoccurrence, according to the prosecution A1 to A7 constitutedunlawful assembly and with a common object of murdering Arthanari,committed the offence of murder and also caused injuries to P.Ws. 1to 3. Even from the evidence of the witnesses examined on the side ofthe prosecution who were called eye witnesses, there was a quarrelbetween the parties and in that process not only P.Ws.1 to 3 wereinjured but also A1, A2 and A3 were injured. These three injuredaccused were actually taken to the hospital and were treated and ontheir arrest they were given treatment by D.W.1 doctor and theother doctor who actually served in prison and the document in thatregard were marked as Ex.D1, Ex.P25 and Ex.P.26. When these accusedpersons were actually injured in the same transaction, theprosecution had no explanation to offer how these injuries weresustained by the accused. There is no whisper in the F.I.R. aboutCrime No.354/2005 or in the course of investigation recorded by theinvestigating officer all along. Hence, the injuries sustained by theaccused remained unexplained which was fatal to the prosecution case.(b) Added further learned counsel, the investigating officerhas fairly admitted that at the instance of A1, a case came to beregistered in Crime No.354/2005 and it is also further admitted thatthe injuries sustained by A1 to A3 as found in the F.I.R. in CrimeNo.354/2005 were caused in the course of the same transaction as https://hcservices.ecourts.gov.in/hcservices/ found in Crime No.353/2005. Hence, the prosecution in its fairnessshould have placed all the materials before the trial Court for thepurpose of proper appreciation of evidence and also to find out thegenesis of the occurrence. But in the instant case, not even onerecord was placed before the Court regarding Crime No.354/2005. Whenquestions were put to Investigating Officer during cross examination,he candidly admitted that it was he who actually investigated CrimeNo.354/2005. In respect of all questions put to the InvestigatingOfficer in respect of Cr.No.354/3005, he would depose that he mustperuse the records only then he could answer and thus, the answersgiven by the Investigating Officer were not helpful to the trialcourt to find out the truth or genesis of the prosecution case. Inthe instant case, as per the prosecution, there was quarrel at thetime of occurrence and there was free fight among the parties andthe evidence also would indicate the same. Under such circumstances,the prosecution was duty bound to explain the genesis of theoccurrence but failed to do so.(c) Added further learned counsel, the evidence of D.W.1 doctorwho was examined on the side of defence would clearly indicate thatall these three accused A1 to A3 had sustained number of injuries. A1sustained injury on his skull but the same remains unexplained. Thelearned counsel would further submit that in the instant case, theprosecution marched three occurrence witnesses who are also injuredwitnesses but the prosecution miserably failed to bring to the noticeof the trial court about the entire transaction to enable the trialcourt to make full appreciation of the evidence. The lower Court,instead of acquitting the accused has rendered the judgment ofconviction which is erroneous and illegal, hence, the same has gotto be set aside by this Court.4. The Court heard the Additional Public Prosecutor on the abovecontentions and paid it anxious consideration on the submissionsmade. 5. It is not in controversy that one Arthanari was done to deathin the incident that took place at 9.30 a.m. on 8.8.2005 as allegedby the prosecution. Following the inquest made by P.W.15Investigating officer, the dead body was subjected to post mortem.P.W.10 doctor who conducted autopsy has categorically opined in thepost mortem certificate Ex.P19 as well as a witness before the trialCourt that Arthanari died out to shock and haemorrhage due tomultiple injuries sustained by him. The fact that Arthanari died outof homicidal violence was never disputed by the accused/appellantsbefore the trial court. Under such circumstances, there is noimpediment felt by this Court in recording that the deceasedArthanari died out of homicidal violence.6. In order to substantiate the charges that there was unlawfulassembly constituted by the accused/appellants and in furtherance ofthe common object, A1 attacked the deceased with crow bar, A2attacked with koduval and A3 along with the other accused attackedwith the sticks on the deceased and also in the course of the same https://hcservices.ecourts.gov.in/hcservices/ transaction, P.Ws.1 to 3 were also attacked, the prosecution marchednumber of witnesses and P.Ws.1 to 3 were not only eye witnesses butalso injured witnesses. 7. The Court is mindful of the caution made by the Apex Courtand also the settled principles of law that in a given case like thiswhen the eye witnesses happen to be the injured witnesses, theevidence of such witnesses should not be discarded unless or untilthe Court is able to notice a strong circumstance or a reason isbrought forth. But in the instant case, the evidence of P.Ws. 1 to3, though shown as injured witnesses, their evidence cannot bebelieved for more reasons than one.8. Admittedly, a case came to be registered by P.W.12 on thecomplaint given by P.W.1 marked as Ex.P1 at 11.30 a.m. on 8.8.2005and the F.I.R. was marked as Ex.P20. A perusal of the F.I.R. doesnot indicate that any one of the accused was injured in the courseof the same transaction. Even P.Ws.1 to 3, injured witnesses do notspeak about the fact. On the contrary, there was a candid admissionby P.W.15 Investigating Officer that a case came to be registered bythe Sub Inspector of Police P.W.12 on the strength of the complaintgiven by the first accused which was registered as Crime No.354/2005in the same police station and investigation in both the cases weretaken up. When questions were raised as to the injuries sustainedby A1 to A3 and as to the investigation done, P.W.15 investigatingoffice wanted to make an easy walk over, without giving reasonableanswer. He stated that he has to look into all the material recordspertaining to the case in Cr.No.354/2005. It is a matter of surpriseto note that when the same police has registered two cases, one inCrime No.353/2005 at the instance of P.W.1 and the other in CrimeNo.354/2005 at the instance of A1, that too, when both the crimenumbers had arisen from the same transaction, the prosecution is dutybound to place before the trial Court, all the materials availablefor the purpose of finding out the genesis to the occurrence and alsofor the appreciation of the evidence before the trial Court but theprosecution did not produce any one of the records in CrimeNo.354/2005. Thus, the prosecution did not enable the trial Court tofind out the genesis of the occurrence or for proper appreciation ofthe evidence. Thus, the non-production of the records inCr.No.354/2005 was fatal to the prosecution case.9. The strong circumstance in favour the appellants was the non-explanation of the injuries sustained by A1 to A3 at the time of thesame transaction. Admittedly, D.W.1 was the doctor attached to theCentral Prison, Salem and he has categorically deposed at length thathe along with doctor Rajendran medically examined A1 to A3 and havealso given certificate under Ex.P1, D25 and P.26 narrating allinjuries sustained by them. All would go to show that A1 to A3sustained injuries at the time of same transaction.10. It is true that the injuries sustained by A1 to A3, whennoticed, are not grievous injuries but simple injuries. Even then, ina case like this, when simple injuries were sustained by the accused, https://hcservices.ecourts.gov.in/hcservices/ when circumstances warrant, the prosecution is duty bound to explainhow those injuries were sustained, when there was free fight betweenboth parties and when the prosecution witnesses and the accusedpersons were injured. It is to be noted that two cases came to beregistered but the prosecution failed to produce any records relatingto Crime No.354/2005 registered on the strength of the complaintgiven by A1. The prosecution did not give any explanation regardingthe injuries sustained by the accused in the course of the sametransaction which would lead to irresistible conclusion that theprosecution did not enable the trial Court to find out the truth orgenesis of the occurrence and for proper appreciation of theevidence placed before it. All would go to show that theaccused/appellants are not found guilty of the charges levelledagainst them. Hence, it would be unsafe to sustain the conviction onsuch evidence and therefore, the appellants are entitled foracquittal. The lower court, without considering all the aspects, haserroneously found the appellants guilty and hence, the judgment ofthe lower court has got to be made undone only by upsetting the same.11. Accordingly, these criminal appeals are allowed, settingaside the conviction and sentence imposed on the appellants by thecourt below. The appellants are acquitted of the charges levelledagainst them. The bail bonds if any executed by the appellants shallstand terminated and the fine amounts if any paid by them is orderedto be refunded to them. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarvsiTo1.The District Munsif-cum- Judicial Magistrate,Omalur, Salem District.2.-do- Thro' the Chief Judicial Magistrate,Salem (for Information)3. The 1st Additional Sessions Judge, Salem.4. -do-Thro' The Principal Sessions Judge, Salem. https://hcservices.ecourts.gov.in/hcservices/

5. The Inspector of Police, Deevattipatti Police Station, Salem District.6.The Public Prosecutor, High Court, Madras.7.The Superintendent,Central Prison, Salem.8.The Superintendent,Central Prison, Coimbatore.9.The Superintendent,Special Prison for Women, Vellore.10.The District Collector,Salem.11.The Director General of Police,Mylapore, Chennai-4.12.The Judicial Magistrate No.1,Erode.13.-do- Thro' The Chief Judicial Magistrate,Erode.14.The Section Officer,Criminal Section, High Court, Madras.+1cc to Mr.S.Xavier Felix, Advocate Sr 24554CU(CO)km/6.7.Crl.A.Nos.1012 of 2007 and 168 of 2008