Manthoon v. State

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 27.11.2009CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE V. PERIYA KARUPPIAHCRIMINAL APPEAL No.512 of 20091. Manthoon2. Paramananth3. Kal @ Kadi @ Aravindh4. Amarjith5. Solindar ..Appellants(Accused)Vs.State by:The Inspector of Police,H.5, New Washermenpet Police Station,Chennai ..Respondent(Complainant)This criminal appeal is preferred under Section 374(2) Cr.P.Cagainst the judgment of the learned Additional District and SessionsJudge, Vth Fast Track Court, Chennai, made in S.C.No.427/2008 dated6.8.2009.For Appellants : Mr.S.Jayakumar, Senior counsel for Mr.T.S.Sasikumar for A1 & A2 Mr.N.Doraisami for A3 to A5For Respondent : Mr.Babu Muthu Meeran, Addl.P.PJ U D G M E N T(The judgment of the Court was made by M.CHOCKALINGAM, J.)Challenge is made to the judgement of the Additional District andSessions Division, Fast Track Court-V, Chennai, made in S.C.No.427 of2008 whereby the appellants five in number, stood charged, tried andfound guilty under sections 302 r/w 34 IPC and 324 IPC (4 counts) andawarded life imprisonment each and one year rigorous imprisonmenteach respectively along with fine and default sentences. The sentences https://hcservices.ecourts.gov.in/hcservices/ are ordered to run concurrently.2. The short facts necessary for the disposal of this appeal canbe stated as follows:(a) P.W.1 is the complainant. P.Ws. 2 and 3 came from AndhraPradesh to eke their livelihood. They along with others were stayingin Venkateshwara Kalyanamandapam, New Washermenpet, Chennai.. Theywere brought for the work of loading and unloading of goods in ChennaiPort. About 28 persons were staying there. Out of 28 persons, 8persons were in one group, wherein P.W.1 was in that group and 20others were in another group. On the date of occurrence, that was on20.7.2008 at about 9.00 to 10.00 p.m., when A1 was lying in the firstfloor and P.W.1 was sitting by his side, the deceased Srinivasan camethere and slapped A1. All the accused questioned about the same. Thedeceased felt sorry for the same but the accused persons were notsatisfied. They took the wooden clubs and attacked him. When P.Ws.1 to3 intervened, they were also assaulted by the accused. All theaccused dragged the deceased to the nearby water tank and attacked himindiscriminately. The same was informed to the Supervisor of theKalyanamandapam. The Supervisor along with others took the deceased tothe Apollo Hospital. Since they could not meet the expenses, they tookhim to the Government Hospital, where P.W.8 doctor was on duty. Thedeceased was admitted at about 11.55 p.m. (b) P.W.1 after leaving him in the hospital, proceeded to therespondent Police station and he gave Ex.P1 complaint. Since he gavean oral complaint in telugu, he took the assistance of P.W.6 who knewtelugu. P.W.6 translated the same. The oral complaint was actuallyreduced into writing which was marked as Ex.P1. On the strength ofEx.P1 complaint, a case came to be registered by P.W.16 Sub Inspectorof Police of the Respondent Police Station in Crime No.299/2008under sections 324, 307 and 506(2) IPC The express F.I.R. Ex.P25 wasdespatched to Court. The same reached the Magistrate at 11.00 a.m. on21.7.2008.(c) Following the same P.W.17, Inspector of Police on receipt ofthe copy of the F.I.R., took up investigation, went to the spot, madean inspection in the presence of witnesses and panchayatdars andprepared the observation mahazar, Ex.P26 and drew a rough sketch,Ex.P.27. He recovered the material objects M.Os.4 and 5 bricks andgranite stones respectively under a cover of mahazar. (d) Pending investigation, a message was received from theHospital that Srinivasan died at about 6.40 a.m. Then, the case wasaltered to section 302 IPC and the amended F.I.R. Ex.P29 wasdespatched to Court. The inquest was conducted by the InvestigatingOfficer in the presence of witnesses and panchayatdars and preparedEx.P.30 inquest report. The dead body was subjected to post mortem. https://hcservices.ecourts.gov.in/hcservices/ P.W.13 doctor conducted autopsy on the dead body of the deceased andgave his opinion in Ex.P23 post mortem certificate wherein he hasopinion that the deceased would appeared to have died out of multipleinjuries sustained by him. Pending investigation, the accused werearrested and they gave confessional statement pursuant to which thematerial objects, weapon of crime-wooden clubs were recovered. Theywere sent for judicial remand. (e) P.Ws. 2 and 3 were examined by P.W.10 doctor and heissued accident register copy Exs.P 7 and 8 respectively which weremarked. On completion of the investigation, the investigating officerfiled a final report. (f) The case was committed to the Court of Sessions. Necessarycharges were framed. In order to substantiate the charges, theprosecution examined 18 witnesses and relied on 41 exhibits and 7material objects. On completion of the evidence on the side of theprosecution, the accused were questioned under section 313 Cr.P.C. andthey denied them as false. No defence witnesses were examined on theside of the defence. The trial Court heard the arguments advanced oneither side and took the view that the prosecution has proved the casebeyond reasonable and rendered the judgement of conviction andsentence as referred to above. Hence, this appeal at the instance ofthe appellants.3. Advancing the arguments on behalf of the appellants, thelearned counsel would submit that according to the prosecution, theoccurrence has taken place at 10.00 p.m. on 20.7.2008 in which P.Ws.1 to 3 were injured apart from the deceased. The deceased wasoriginally taken to Apollo Hospital by the Supervisor of the KalyanaMandapam and thereafter, to the Government Hospital where he succumbedto injury at about 6.45 a.m. on 21.7.2008. Though the prosecutionexamined P.Ws. 1 to 3 as injured witnesses, no medical evidence wasproduced in so far as P.W.1 was concerned. The claims of theprosecution was that P.W.1 was by name Ramakrishnan and it was he whowent to the Police Station and gave Ex.P1 report. P.W.16, Sub-Inspector of Police would also claim that it was P.W.1 who came thereand gave the report in telugu and with the assistance of P.W.6, it wastranslated to Tamil. But at the time of cross examination P.W.1 hascategorically admitted that he was not Ramakrishnan at all. Hence, itwould be quite clear that Ex.P.1 could not have come into existence atthe instance of P.W.1. and the same is doubtful. This would alsoindicate that P.W.1 could not have been in the place of occurrence atall. 4. Added further learned counsel, the earliest document which hascome into existence is the accident register copy of the deceasedwhich was marked as Ex.P4. P.W.8 is the doctor who categoricallyexamined the deceased. A perusal of Ex.P4 would clearly indicate that https://hcservices.ecourts.gov.in/hcservices/ the deceased died due to falling from the height of 15 feet. Oneinjury was noticed and it was contusion over occipital region. Theprosecution had no explanation to offer to the contents found in thedocument, Ex.P4. Thus, it would clearly indicate that he did notsustain any injury at the instance of anybody else but due to fallingfrom the higher place. Further, it is further seen that though theprosecution claimed that the case was registered by P.W.16 SubInspector of Police at about 2.00 a.m., it has reached theMetropolitan Magistrate at 11.00 a.m. Thus, there was a delay of 9hours. The prosecution had no explanation to offer for this delay. Theinordinate delay remains unexplained.5. Added further learned counsel, P.Ws.2 and 3 were examined bythe doctor at about 12.55 p.m. on 21.7.2008 Their statements wererecorded by P.w.10 doctor in Ex.P7 and P8 accident registerrespectively in which they have categorically stated that they wereattacked by 5 unknown person. But the F.I.R. at the earlier at2.00 a.m. in which the names of the assailants, 5 in number, wereclearly mentioned. Thus, it would go to show that the police wasunable to fix the accused till P.Ws.2 and 3 were actually examined byP.W.10 doctor whose statement was recorded in Exs.P7 and P.8.6. The learned counsel would further submit that it is pertinentto point out that the investigator has claimed that the eye witnesseswere examined between 2.00 to 6.00 a.m. under section 161 Cr.P.C. butthis statement has reached the Court on the next day that was on22.7.2008. Further, though the investigator has claimed that thematerial objects were recovered following the confessional statementrecorded from the accused, P.Ws.1 to 3 have stated that the woodenclubs were found available in the place of occurrence and they wererecovered by the police immediately. All would go to show that therecovery and the confessional statement cannot but be false. Theprosecution in all the records have mentioned the assailants asunknown persons but in the earliest document, F.I.R., the names ofthe accused were mentioned which would go to show that the prosecutionhas miserably failed to prove its case beyond reasonable doubt. Thetrial court has taken an erroneous view and convicted the accused. Theprosecution has not brought home the guilt of the accused/appellants.Hence, the accused/appellants are entitled for acquittal.7. The Court heard the learned Additional Public Prosecutor onthe above contentions and paid its anxious consideration on thesubmissions made.8. It is not in controversy that one Srinivsasn was taken toApollo Hospital and thereafter to the Government Hospital where he wasadmitted by P.W.8 doctor and despite treatment given to him duringthe night hours on 20.7.2008, he died on next day morning that was on21.7.2008. On the death of Srinivasan, the case which was registered https://hcservices.ecourts.gov.in/hcservices/ under section 307 IPC was altered to section 302 IPC. P.W.17investigator, after conducting inquest on the dead body of thedeceased prepared the inquest report Ex.P.30. and made a requisitionfor conduct of post mortem. P.W.13 doctor conducted post mortem andgave his opinion as witness before the Court and also through thecontents of the post mortem certificate that the deceased died ofmultiple injuries sustained by him. Thus, it would be quite clear thatSrinivasan met unnatural death due to the incident that had takenplace on 20.7.2008 at 10.00 p.m and the prosecution was successfulenough to prove the same.9. Insofar as the charges levelled against the appellants areconcerned, on scrutiny of the material available, the Court is afraidwhether it could sustain the judgment of conviction rendered by thetrial Court.The prosecution marched three witnesses P.Ws. 1 to 3 aseye witnesses and they are not only eye witnesses but as injuredwitnesses. Insofar as P.W.1 was concerned, no medical opinion wascanvassed or documentary evidence was placed before the Court. Theconsistent claim of the prosecution was that P.W.1 by nameRamakrishnan gave Ex.P1 complaint to P.W.16 Sub Inspector of Police,on the strength of which, a case came to be registered by therespondent Police but at the time of cross examination, P.W.1 hascategorically stated that he was not Ramakrishnan. This part of theevidence of P.W.1 coupled with non-production of the medical evidenceas to the alleged injuries sustained by him would cast a doubtwhether he could have been at the place of occurrence or he couldhave been injured at the time of incident as claimed by theprosecution. It is highly doubtful whether Ex.P1 itself would havecome into existence on the basis of the report given by P.W.1 asputforth by the prosecution.10. Further, the case came to be registered at about 2.00 a.m. inwhich the names of 5 assailants are mentioned therein. But theinvestigator would claim that he examined all the witnesses between 2and 6 a.m. and their statements were recorded under section 161Cr.P.C The statements recorded was also to the effect that the namesof all the five assailants were noted therein. It is a matter ofsurprise to note that P.Ws. 2 and 3 who were medically examined byP.W.8 doctor at 12.55 p.m. on 21.7.2008 have mentioned to the doctorthat they were attacked by 5 unknown person. Therefore, a reasonabledoubt would automatically arise whether P.Ws.2 and 3 were examined bythe investigator as claimed by him between 2 a.m. and 6.00 a.m on21.7.2008. There is no reason for them to inform to the doctor thatthey were attacked by unknown person. It is quite clear that till thetime they were examined by the medical person, the assailants were notknown. https://hcservices.ecourts.gov.in/hcservices/

11. Insofar as P.W.1 is concerned, it is doubtful whether hecould have been in the place of occurrence. P.Ws. 2 and 3 had statedto P.W.8 doctor that all the five persons who attacked them wereunknown, hence, it is doubtful how the names of five persons came inEx.P1 complaint. As could be seen from the available materials thedeceased died at 6.40 a.m. on 21.7.2008 and the case which wasoriginally registered under section 307 IPC at 2.00 a.m. has reachedthe Metropolitan Magistrate at 11.00 a.m. There was a delay of 9 hourswhich is inordinate and one would naturally expect the prosecutionto explain the same but the prosecution had no explanation to offer.The non-explanation of the inordinate delay of 9 hours coupled withthe circumstances cited supra, would clearly indicate that theprosecution story is doubtful.12. In the instant case, it was claimed by the prosecution thatthe accused persons were staying in the same place and they knew eachother already. It is further to be pointed out that the investigatorwould claim that the wooden clubs were recovered pursuant to theconfessional statement recorded from the accused but the prosecutionwitnesses would depose that the wooden clubs were available at theplace of occurrence. Therefore, the claim of the investigator thatthey were recovered pursuant to the confession cannot but be false.All would go to show that the prosecution has not successfully provedthe case. The prosecution has not brought home the guilt of theaccused but the trial court has taken an erroneous view and found theaccused guilty. This Court is of the considered opinion that theaccused are entitled for acquittal and the judgment of the trial Courthas got to be made undone by upsetting the same. 13. Accordingly, the judgment of conviction and sentence passedby the trial Court is set aside. The appellants are acquitted of thecharges levelled against them. They are directed to set at libertyforthwith unless their presence are required in connection with anyother case. Fine amount, if any paid by the appellants, shall berefunded to them.Sd/Asst.Registrar/true copy/Sub Asst.Registrarvsi https://hcservices.ecourts.gov.in/hcservices/ To1. The Additional District and Sessions Judge, Vth Fast Track Court, Chennai 2.-do- Thro' The Principal Sessions Judge, Chennai.3.The District Collector,Chennai.4.The Director General of Police, Mylapore, Chennai.5.The Superintendent,Central Prison, Puzhal, Chennai.6. The Inspector of Police, H.5, New Washermenpet Police Station, Chennai7. The Public Prosecutor, High Court, Chennai.Copy toThe Section Officer,Criminal Section, High Court,Madras.+1cc to Mr.T.S.Sasikumar, Advocate Sr 64724JRG(CO)km/8.12.CRL. APPEAL No.512 of 2009