Selvam v. The State

Bail SlipCrl.A No.1027/2006The Appellants/Accused No.1 viz., Selvam, Accused No.2, viz.,Kannan, Accused No.3, viz Periyasami were released on bail of this Court order dated 01.12.2006 and made in Crl.MP.No.1/2006 in Crl.A.No.1027/2006.IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 13.03.2012CORAM :THE HONOURABLE MR. JUSTICE S.PALANIVELUCRIMINAL APPEAL No.1027 of 20061.Selvam2.Kannan3.Periyasami4.Chikka Gounder5.Rukkmani6.Chithra7.Malar8.Kanniyammal: Appellants/Accused 1 to 8 versusThe State rep. ByDeputy Superintendent of Police, Namakkal DistrictErumaipatti P.S.Cr.No.336 of 2005: Respondent/Complainant Criminal Appeal filed under Section 374 of Crl.PC against the Judgment made in S.C.No.63 of 2006 dated 08.11.2006 on the file ofthe Principal District and Sessions Judge, Namakkal (Special Courtfor SC/ST prevention of attrocities Act, 1989).For Appellants : Mr. C.D. JohnsonFor Respondent : Mr.C.Balasubramanian, Addl. Public Prosecutor https://hcservices.ecourts.gov.in/hcservices/ J U D G M E N TThe following is the brief account of the prosecution case sansunnecessary details:1.(a) P.W.1 lodged a complaint with the respondent policestation stating that on 14.02.2005 at about 2.00 p.m., first accusedcame and cut down the plants belonging to the complainant. WhileParameswari, daughter of the complainant asked him, the 1st accusedcursed her by referring to her caste "ngho rf; fpypr; rp mg; gojhz;o btl; Lntd;/fz; lhu Xhp". She informed the same to P.W.

At about 6.30 p.m.whileP.W.1 was coming to his house through the way of 1st accused house, 5thaccused, mother of 1st accused informed him that his daughterParameswari abused them. At that time all the accused waylaid himand all of them started assaulting him. Periasami dishonured him bysaying "rf; fpypaDf;F mt; tst[ Mr;rh>" and assaulted his son Manivel bymeans of wooden log. Kannan assaulted P.W.1 by crowbar by means ofwhich he sustained injury on his forehead. Kannan also assaultedhim with stone causing contusion on his chest. Then first accusedstamped on Parameswari. Chitra abused Muththalammal and pushed her onthe ground. The fifth accused also assaulted mother-in-law Veerammaland pushed her down. All of them criminally intimidated. On hearingthe noise P.W.5 and 6, Palaniammal and Rangan came and on seeingthem, the accused persons run away from the scene of occurrence withthe weapons. One Sakthivel admitted them to the hospital.1.(b) Information was sent to the police station from the Government Hospital, Namakkal and P.W.12 Sub-Inspector of Police, proceeded to the Government Hospital, Namakkal, enquired P.W.1,recorded Ex.P.1 complaint and went to the police station andregistered a case u/s.147, 148, 324, 323, 506(2) IPC and undersection 3(1)(XI) of SC and ST Act.

After the examination of witnesses, while the accused werequestioned under Section 313 Cr.P.C. as regards the incriminatingmaterials available against them in the prosecution evidence, theydenied complicity to the offences. The Trial Court, after analyzingthe evidence on record, found all the accused guilty and convictedthem as follows: Appellant/AccusedFound guilty u/sConviction and Sentence by the Court belowAppellant/Accused 1 147 I.P.C. and 3(1)(x) SC & STActFor the offence under Section 147I.P.C. sentenced to pay a fine ofRs.1,000/- in default to undergoR.I. for 2 weeks and for theoffence u/s 3(1)(x) of SC & ST(P.A.) Act 1989, sentenced toundergo R.I. for six months andto pay a fine of Rs.500/- i/d toundergo R.I. for two weeks. Sentences ordered to runconcurrently. Set off allowed. Appellant/Accused 2 148 & 324 I.P.C.For the offence under Section 148I.P.C. Sentenced to undergo R.I.for two months and to pay a fineof Rs.1,000/- in default toundergo R.I. for one week and forthe offence u/s 324 IPC sentencedto undergo R.I. for three monthsand to pay a fine of Rs.3,000 indefault to undergo R.I. for twoweeks. Sentences ordered to runconcurrently. Set off allowed. https://hcservices.ecourts.gov.in/hcservices/ Appellant/AccusedFound guilty u/sConviction and Sentence by the Court belowAppellant/Accused 3 148 I.P.C. and3(1)(x) SC & STActFor the offence under Section 148I.P.C. Sentenced to undergo R.I.for two months and to pay a fineof Rs.1,000/- in default toundergo R.I. for one week and forthe offence u/s 3(1)(x) of SC &ST (P.A.) Act 1989, sentenced toundergo R.I. for six months andto pay a fine of Rs.500/- i/d toundergo R.I. for two weeks. Sentences ordered to runconcurrently. Set off allowed. Appellants 4 to8/Accused 4 to8147 I.P.C.For the offence under Section 147I.P.C. sentenced to pay a fine ofRs.1,000/- each, in default toundergo R.I. for 2 weeks each Aggrieved against the order of the conviction the Appellants/A1 to A3have preferred this appeal.

Point for consideration: "Whether the prosecution has brought home the guilt ofthe accused under the charges framed beyond all reasonabledoubt?"Point:

The learned counsel for the appellants Mr. C.D. Johnson wouldsubmit that there is remarkable and unexplained delay in the F.I.R.to reach the Court, that from the evidence available on face ofrecord, it can be seen that both the occurrences proceeded by theaccused and P.Ws took place at the same time, that the first accusedsustained injuries and it is for the prosecution to explain the same. But in this case, it is not done so, that it is the bounden duty ofthe investigating officer to place all the records pertaining toCr.No.337 of 2005 and that the investigating officer has failed toascertain the genesis of the occurrence that the contradictionsbetween the evidence of the witnesses would show that the prosecutionhas not proved the guilt of the accused and that the charges againstthe accused have not been proved by the prosecution beyond reasonabledoubts.

The learned Additional Public Prosecutor Mr.C.Balasubramanian would submit that there is no delay in sending theF.I.R to Court, that after the occurrence two witnesses were admittedto the hospital and on information P.W.12 Sub Inspector of policecame to the hospital and recorded the complaint statement from P.W.1and thereafter he lodged the complaint and there was no delay for the https://hcservices.ecourts.gov.in/hcservices/ F.I.R. to reach the Court, that on the face of it, it could be seenthat both the occurrences as mentioned by the prosecution witnessesand accused party took place on different times in different placesand hence, there is no necessity to produce the case recordspertaining to Cr.No.337 of 2005, that the evidence of prosecutionwitnesses have been duly corroborated with medical evidence and thatthe appellants are liable to be sentenced under the provisions of lawand that there is no valid ground made out to disturb the findings ofthe Court below.

The occurrence took place on 14.12.2005 at 6.30 p.m. as percomplaint. From the wound certificate it transpires that prosecutionwitnesses have been examined and treated by the doctor on 14.12.2005at 9.40 p.m. According to P.W.12 he received intimation and proceededto the hospital. Even though the prosecution witnesses were treatedat 9.40 p.m. on 14.12.2005 P.W.12 came to the hospital only on15.12.2005 at 17.00 hours and recorded the complaint statement. Inthis juncture it has to be seen that there was one day delay forP.W.12 to come to the hospital for getting the intimation from thehospital as to the admission of injured witnesses. P.W.12 did notassign any reasons for the delay of about one day for him to comeover to the hospital after getting intimation. Further the F.I.R wasreceived by the Court on 6.12.2005 at 10.30 a.m. This Court isunable to find out any plausible explanation from P.W.12 for thedelay of one day for him to go over to hospital. This delay whichremains unexplained, in view of this Court, is fatal to theprosecution.

The next point argued by the learned counsel for theappellant is that since both the offences took place at the same timeeven though if the investigating officer filed referred charge sheetin another case, it is his duty to produce all the case records inCr.No.337 of 2005, so as to enable the Court to ascertain the genesisof records in this case. The learned Additional Public Prosecutorwould submit that on reading the F.I.R, it must be seen that the timeof occurrence and the scene of occurrence are different. In thepresent case i.e., in Cr.No.336 of 2005, the occurrence is alleged tohave taken place at 6.30 p.m. on 14.12.2005 near the house of P.W.1In the complaint lodged by the first accused which was registered inCr.No.337 of 2005, he has mentioned as if the occurrence took placeat 8.00 p.m. on 14.12.2005. Further in the first page of F.I.R, thepolice have filled the column stating as if the occurrence took placenearer to the house of first accused. But on reading theF.I.R.No.337 of 2005, there is no specific mention about the scene ofcrime by the first accused. It is in the evidence of P.W.1 that boththe occurrences have not taken place at the same time.

It is the categorical admission on the part of P.W.1 in hiscross examination that the 5th accused also suffered injuries in thesame occurrence and they were also taking treatment in Namakkal https://hcservices.ecourts.gov.in/hcservices/ Government Hospital while they were (P.Ws) inpatients in the saidhospital. In other part of the cross examination he would say thatit is incorrect to state that both the occurrence took place at thesame time. P.W.2 would depose that it is correct to suggest that someof the accused in this case also sustained injuries in the sameoccurrence and they were admitted in the Government Namakkal Hospitalas inpatients. Both of them would also admit that at the time ofoccurrence there was no light. P.W.14 investigating officer wouldalso concede in his cross examination that it is true to suggest thaton 14.12.2005 at the same time Accused 1 to 8 were assaulted by P.W.1and his relatives and the 1st accused lodged complaint to that effectand the same was registered in Erumapatti Police Station Cr.No.337 of2005. From the above said evidence it comes to light that both theoccurrences took place simultaneously. It is the version of theprosecution witnesses that the occurrence took place at 6.30 p.m.while it is alleged by the accused that the occurrence took place at8.30 p.m. It is also in evidence that at the time of occurrencethere was darkness. Hence, there is no impediment to observe thatboth the occurrence took place simultaneously.

From the evidence of P.W.14, it is seen that he has alsotaken up the investigation in Cr.No.337 of 2005 simultaneously andfiled referred charge sheet in the said case as 'Mistake of Fact'.Police Standing Order 588(A) deals with the responsibilities ofinvestigating officer who is investigating a case and the case incounter and the procedure to be adopted by him, which is as follows: "588-A. In a complaint and counter complaintarising out of a same transaction, the InvestigationOfficer has to enquire into both of them and adopt oneor the other of the two courses, viz., (1) to charge thecase where the accused were the aggressors; or (2) torefer both the cases if he finds them untrue. If the Investigation Officer finds that either of the course isdifficult, he should seek the opinion of the PublicProsecutor and act accordingly. A final report should besent in respect of the case referred as mistake of lawand the complainant or the counter-complainant, as thecase may be, should be advised about the disposal by anotice in Form No.96 and to seek remedy before thespecified Magistrate if he is aggrieved by the disposalof the case by the Police. "

Even though he has taken up investigation in both the caseshe has failed to produce the records pertaining to Cr.No.337 of 2005in this case. He has not even produced referred charge sheet copybefore this Court to see whether the accused are the aggressors andwhich is the genesis of the occurrence. Of course, true, from thecross examination of P.W.13 Exs.C.1 and C.2 and from the crossexamination of P.W.12 Exs.C.3 and C.4 were marked. Exs.C.1 and C.2are the wound certificates issued for 1st and 5th accused. 1st accused https://hcservices.ecourts.gov.in/hcservices/ has sustained a lacerated wound in the left arm and two abrasions onthe left fact and right nipple. It is opined that the injuries aresimple in nature. As far as 5th accused is concerned she has noexternal injuries. She complained of only pain. Ex.C.3 is copy ofF.I.R. lodged in Cr.No.337 of 2005 and Ex.C.4 is the complaint lodgedby the first accused. Since the records related to Cr.No.337 of 2005have not been produced, this court is unable to ascertain the genesisof the occurrence as well as who is the aggressor. In this context, it is to be necessarily observed that the circumstances layssuspicion over the prosecution case.

The next limb of contention of the learned counsel for theappellant is that the injuries sustained by the first accused havenot been explained before the Court. Neither P.W.12 nor P.W.14 hasstated about the injuries. Further, P.W.12 has stated in his crossexamination that the 1st and 5th accused were also taking treatment inthe hospital and he recorded statement from the first accused.

In (2006) 3 Supreme Court Cases (Cri) 212 [Nagarathinam and Others v. State rep. By Inspector of Police] it is observed thatquestion of failure by the prosecution to explain injuries on theperson of accused had not been considered by the High Court and ithad wrongly held that burden of proof in respect thereof lay on theaccused-appellants.

In (2007) 13 SCC 554, [ Raj Pal v. State of Haryana] alsoit is observed that when the prosecution has failed to explain theinjuries on the accused, ipso facto the prosecution case should bethrown out, the non-explanation of the injuries on the accused iscertainly an important circumstance which has to be taken intoconsideration by the court in deciding whether the benefit of doubtshould go to the accused.

Repelling the above said contention, the learned AdditionalPublic Prosecutor would place much reliance upon a decision of the Supreme Court in (2010) 3 SCC (Cri) 417 = (2010) 7 SCC 477 [SikandarSingh and others v. State of Bihar] wherein an earlier decision ofthree Judges Bench of the Supreme Court has been referred to and thefollowing is the relevant portion: "36. Finally, the third question for consideration isas to what is the effect of non-explanation of injuriessuffered by the appellant Sheo Jee Singh. It cannot beheld as an unqualified proposition of law that wheneverthe accused sustains an injury in the same occurrence, theprosecution is obliged to explain the injury and onfailure of the prosecution to do so, the prosecution casehas to be disbelieved. https://hcservices.ecourts.gov.in/hcservices/

In Takhaji Hiraji v. Thakore Kubersing Chamansing[(2001) 6 SCC 145 : 2001 SCC (Cri) 1070] a Bench of threeJudges of this Court, referring to earlier three-JudgeBench decisions, observed that: (SCC p. 154, para 17)

17. … Before non-explanation of theinjuries on the persons of the accused persons bythe prosecution witnesses may affect theprosecution case, the court has to be satisfiedof the existence of two conditions: (i) that theinjury on the person of the accused was of aserious nature; and (ii) that such injuries musthave been caused at the time of the occurrence inquestion.

15. In the said judgment it is opined that the non-explanationof injuries on the persons of accused may affect the prosecutioncase. It is stressed by the learned Additional Public Prosecutorthat only if the injuries is serious, then it should have beenexplained and that it is not the law that in all the cases when theaccused happens to sustain injury it need not be explained.