Vasantha v. Natarajan @ Muthu Natarajan

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 27-10-2009CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAHCRIMINAL APPEAL No.24 of 2008andCRIMINAL REVISION CASE NO.1764 of 2007State rep.byInspector of Police,Panamadangi Police Station,Vellore District(Crime No.129/2006) ..Appellant in C.A.24/2008Vasantha ..Petitioner in Crl.R.C.1764/2007..vs..1. Natarajan @ Muthu Natarajan2. Subramani3. Jayaraman4. Krishnamurthy5. Vijayan6. Sankar @ Gowri Sankar7. Dinakaran..Respondents in Appeal/ R-1 to R-7 in Crl.R.C.8. The State rep.by Inspector of Police, Panamadangi Police Station, Katpadi Taluk, Vellore District...R-8 in Crl.R.C.Criminal Appeal filed under Section 378 of Criminal ProcedureCode and the Criminal Revision Case filed under section 397 r/w.401of the Criminal Procedure Code, against the judgment of the learnedAdditional District & Sessions Judge (Fast Track Court), Vellore,made in S.C.No.299 of 2007, dated 03.10.2007.For Appellant : Mr.Babu Muthu Meeran, A.P.P.,For Petitioner : Mr.K.RamachandranFor Respondents : Mr.V.Karthik for(A-1 to A-7) M/s.T.S.Gopalan & Co., https://hcservices.ecourts.gov.in/hcservices/ COMMON JUDGMENT(Judgment of the court was delivered by M.CHOCKALINGAM, J.)This judgment shall govern the criminal appeal preferred by theState and the criminal revision case preferred by P.W.1, Vasantha.2. Both the matters challenge a judgment of the AdditionalDistrict and Sessions Division, Fast Track Court, Vellore, made inS.C.No.299 of 2007, whereby the respondents/A-1 to A-7, stoodcharged, tried and acquitted as follows:AccusedChargesFindingsSentenceA-1 S.148, 450, 302, 326(2), 324(2) and 436IPC Not guiltyAcquittedA-2 S.148,450,302 r/w.149, 324,323(3) and436 r/w.149 IPCNot guiltyAcquitted A-3S.148,450,302 r/w.149,326, 324,323 and436 IPCNot guiltyAcquittedA-4S.147,450,302 r/w.149, 324 and 436r/w.149 IPCNot guiltyAcquittedA-5S.148,450,302 r/w.149, 324(2) and 436IPCNot guiltyAcquittedA-6S.148,450,302 and436 r/w.149 IPCNot guiltyAcquittedA-7S.147,450,302 r/w.149, 326,323(2) and436 r/w.149 IPCNot guiltyAcquitted3. Short facts, necessary for the disposal of the appeal as wellas the revision, can be stated thus:(a) P.w.1 is the wife, P.W.2 is the son-in-law and P.Ws.3 and 4are the sons of the deceased Mahalingam. The deceased had a disputeover the landed property with A-1 for more than a decade. On thedate of occurrence, i.e. on 12.11.2006 at about 1.30 PM, when P.Ws.1to 4, along with the deceased, were doing the agricultural operationin the land, all the accused persons came over there in a Tata Sumocar and they got down and at the instigation of A-2, all of themattacked the deceased at different parts of the body. When P.W.1intervened, she was also attacked and she sustained injuries. P.Ws.2 https://hcservices.ecourts.gov.in/hcservices/ to 4 also, when they intervened, attacked and they sustainedinjuries. On hearing the distressing cry, the neighbours gathered andimmediately all of them fled away from the place of occurrence andP.W.1 took the deceased in an auto and then, they proceeded to theGudiyatham Government Hospital, where he was declared dead. BothP.Ws.1 and 2 were given treatment by P.W.13, the doctor by theGudiyatham Hospital and P.Ws.3 and 4 directly proceeded to theC.M.C.Hospital at Vellore and they were also given treatment byP.W.16. (b) On receipt of the intimation, the Inspector of Police ofthe respondent Police Station, P.W.27, proceeded to GudiyathamGovernment Hospital and recorded the statement of P.W.1 and on thestrength of which, she registered a case in Crime No.129 of 2006under Sections 147, 148, 326, 324, 436 and 302 I.P.C. at about 9.00PM and the first information report Ex.P-29 was despatched to theCourt and higher officials. (c) On receipt of the copy of the first information report,P.W.28, the Inspector of Police, taken up investigation, proceeded tothe spot on the next day, made an inspection, prepared an observationmahazar Ex.P-2 and rough sketch Ex.P-30, recovered the materialobjects under cover of mahazars in the presence of witnesses andthereafter, he conducted an inquest on the dead body of Mahalingam atthe mortuary and prepared the inquest report Ex.P-31 in the presenceof witnesses and the panchayatdars and he has also caused photographsto be taken through P.W.23 and the photographs are marked as Ex.P-25series. Thereafter, he also subjected the dead body to post mortemalong with his requisition.(d) On receipt of the said requisition, P.W.15, doctor attachedto the Gudiyatham Government Hospital, conducted autopsy on the deadbody of Mahalingam and gave a post-mortem certificate, Ex.P-16wherein she opined that the deceased would appear to have died of 20to 26 hours prior to autopsy and due to shock and haemorrhage due tovital organ injury (brain).(e) Pending investigation, the investigating officer P.W.28recorded the statement of the witnesses and arrested A-1, who gave aconfessional statement and the same was recorded and the admissibleportion is Ex.P-33. Pursuant to which, the material objects of crimewere recovered. A-6 was arrested thereafter on 15.11.2006 and he cameforward to give a confessional statement and the admission part ismarked as Ex.P-37. Following the same, he also produced the knife andother material objects. The material objects were sent for chemicalanalysis, which brought forth two reports Exs.P-21 and P-22 and oncompletion of investigation, P.W.28 filed the final report undersection 302 I.P.C.(f) The case was committed to the Court of Additional District https://hcservices.ecourts.gov.in/hcservices/ and Sessions Judge, Vellore and necessary charges were framed. Inorder to substantiate the charges, the prosecution examined 28witnesses and also relied on 37 exhibits and 31 material objects.On completion of the evidence on the side of the prosecution, theaccused were questioned under Sec.313 of Cr.P.C. procedurally as tothe incriminating circumstances found against them in the evidence ofprosecution witnesses, which they flatly denied as false. No defencewitness was examined. The trial Court heard the arguments advancedand scrutinized the materials. On doing so, the trial Judge took theview that the prosecution has failed to prove the case beyondreasonable doubt and rendered the judgment of acquittal. Challengingthe same, the appeal at the instance of the State and the revision atthe instance of P.W.1 have been filed. 4. Advancing arguments on behalf of the appellant State, thelearned Additional Public Prosecutor would submit that in the instantcase, the trial court has miserably failed to make appreciation ofthe entire evidence, as put forth by the prosecution. In the instantcase, the prosecution had examined P.Ws.1 to 4 as eye witnesses andall of them were the injured witnesses and they have spoken in onevoice that the occurrence was taken place at about 1.30 PM on12.11.2006 when they were all doing agricultural operation in thefield along with the husband of P.W.1 and that the accused came in aTata Sumo car with deadly weapons and attacked the husband of P.W.1and P.Ws.1 to 4; that apart from that P.Ws.1 and 2 have beencategorically examined by the doctor P.W.13 and the accidentregisters were marked as Exs.P-15 and P-13 respectively, in whichthey have also clearly given the statement that the occurrence wastaken place at the land and they were attacked by the known persons;that in so far as P.Ws.3 and 4 were concerned, they were giventreatment at the C.M.C.Hospital, Vellore, by P.W.16 and the accidentregisters were marked as Exs.P-18 and 17 respectively, wherein theyclearly mentioned that the assailants are the known persons; that theSub-Inspector of Police P.W.27 recorded the statement of P.W.1 atabout 9.00 PM in the hospital and after coming to the police station,she registered the case and the copy of the first information reportEx.P-29 was also actually received by the Judicial Magistrate atVellore at about 1.00 AM on 13.11.2006 and thus, there was no delayeither in registering the case or sending the first informationreport to the Court concerned; that in the instant case, while theprosecution marched four witnesses as eye witnesses, who have alsoinjured at the time of the occurrence, the trial Judge should haveappreciated their evidence; that apart from the above, at the time ofarrest of A-1, he gave a confessional statement and pursuant towhich, the material objects (5 Nos.of btl;L fj;jp) were recovered underthe cover of mahazar Ex.P-34 and apart from that, following theconfession statement given by P.W.16, one knife (btl;L fj;jp) wasrecovered and under such circumstances, the trial Judge should have https://hcservices.ecourts.gov.in/hcservices/ found the appellants guilty; but a perusal of the judgment clearlyindicates that the trial court has acquitted all the accused onflimsy grounds and therefore, the order of acquittal, which lackedany valid reasons, was perverse and apart from that, in the instantcase, the medical opinion canvassed by the prosecution also stood infull corroboration with the case of the prosecution. Under suchcircumstances, the trial Judge should have found the accused guiltyand hence, the judgment has got to be set aside and the accused havegot to be dealt with in accordance with law.5. The court heard the learned counsel for the petitioner in therevision case/P.W.1, who also put forth the submissions in the lineas it was put forth by the learned Additional Public Prosecutor, asmentioned above and heard the learned counsel for therespondents/accused, who made his sincere attempt of sustaining thejudgment of the acquittal rendered by the trial court. The Court paidits anxious consideration on the submissions made by the learnedcounsel for all the parties.6. It is not in controversy that one Mahalingam, the husband ofP.W.1, following an incident that took place on 12.11.2006 at about1.30 p.m.at the place of occurrence, was taken to the GovernmentHospital, Gudiyatham, where he was declared dead by the doctor P.W.13and the copy of the accident register was marked as Ex.P-14 to thateffect and following the inquest made by the investigator P.W.28 andthe dead body was subjected to post-mortem by P.W.15, who gave acategorical opinion that he died due to injury to vital organ(brain). The fact that Mahalingam died out of homicidal violence wasnever subjected to controversy before the trial court and before thisCourt and hence, it could be safely recorded so.7. In order to substantiate the involvement and act of therespondents/accused 1 to 7, the prosecution has marched fourwitnesses P.Ws.1 to 4 as not only eye witnesses but also as injuredwitnesses. The Court in mind full of caution by the settledprinciples of law and the decisions of the Apex Court and also thisCourt, that in a given case, where P.Ws.1 to 4 happened to be the eyewitnesses, their evidence should not be discarded unless and until astrong circumstance is noticed or a reason is brought about by theaccused. It is true that in the instant case, there are four eyewitnesses but the Court is afraid as to whether the evidence of thesewitnesses could be accepted for the purpose of sustaining conviction.Admittedly, P.W.1 is the wife, P.W.2 is the son-in-law and P.Ws.3 and4 are the sons of the deceased Mahalingam. It is not for the Courtto undermine the settled principles of law and that in a given case,where the eye witnesses happened to be the close relatives of thedeceased, their evidence should not be looked into with suspicion butbefore accepting the same, the Court must exercise the test ofcareful scrutiny. In the instant case, P.Ws.1 to 4 would claim that https://hcservices.ecourts.gov.in/hcservices/ they were very well present at the time of the occurrence and whenthe evidence in so far as the overt act attributed to the accusedpersons are concerned, no consistency is found; on the contrary, allinconsistencies, that too, in the material particulars, are noticed.P.W.1 would claim that it was she, who took her husband with severeinjuries to Gudiyatham Government Hospital, where he was declareddead and at the time of cross examination, as rightly pointed out bythe learned counsel for the respondents/A-1 to A-7, she has statedthat immediately after the occurrence was over, P.W.27 Saraswathi,Sub-Inspector came to the spot and if it was true, the informationshould have been passed on to P.W.26 and what was the impediment feltby P.W.26 in recording the statement or the information of P.W.1remains unexplained and P.W.1 further added it was the police, whoarranged for the auto to go to Gudiyatham Government Hospital andthereafter, she went over there and was examined by the doctor P.W.13at about 4.40 PM and the accident register copy is marked as Ex.P-15. A Perusal of the said accident register would clearly indicatethat she was attacked by 30 persons at the time of occurrence and shecontinued to be under treatment in the same hospital. P.W.27, theSub-Inspector of Police of the respondent police station went overthere and recorded the statement of Ex.P-1 where the names of fivepersons (A-1 to A-5) were mentioned but the names of A-6 and A-7 werenot mentioned. It is highly doubtful how P.W.2, who went to thehospital and gave a statement to P.W.13 doctor at 4.40 PM that thepersons attacked were 30 in number, gave such a statement at 9.00 PMbefore the Sub Inspector of Police, P.W.27 as if only A-1 to A-5 wereinvolved, which would be indicative of the fact that the documentEx.P-1 should have come forward only with embellishment andimprovements. Added further, the prosecution came with a specificstory to state that all the accused persons came over there andcaused mischief by firing two motor bikes and standing crops, butP.W.1 in Ex P.1, has not even whispered anything about this fact andin so far as the injuries sustained by her, what were all statedbefore the Court below were, found to be contra. 8. In so far as P.W.2 was concerned, the prosecution would claimthat he also sustained injuries and according to him, he went toGudiyatham Government Hospital in a two wheeler, where he was giventreatment by the doctor P.W.13, to whom P.W.2 has given a statementthat he was attacked by 15 persons at the place of occurrence andthis also casts a doubt upon the case of the prosecution. So far asthe attack made on him, the statement given by him before the trialcourt was contra and the discrepancies were found out with thestatement given before the police under section 164 Cr.P.C. Further,P.W.2 stated the place of occurrence to the doctor as Vaduganthangal,but when he was cross examined, he has specifically stated thatPallakollai. This also casts a doubt, whether he would havewitnessed or presented before the place at all. The evidence ofP.W.2 could not be relied on for any purpose. https://hcservices.ecourts.gov.in/hcservices/

9. In so far as the evidence of P.Ws.3 and 4 is concerned, it ishighly doubtful for the simple reason that since they are the sons ofP.W.1 and the deceased, immediately after the occurrence when theirfather and mother were severely injured, they left in a differentdirection and went to the C.M.C.Hospital directly and they weretreated at the night hours after 11.0 clock and apart from this,while they narrated the incident, they could not give the counts ofthe injuries properly and in short, so far as the narration of theincident is concerned, P.Ws.1 to 4 could not give a properinformation but there were thoroughly inconsistencies and theevidence of P.Ws.1 to 4 all put together, would show that theconviction cannot be based on their evidence.10. Apart form this, in the instant case, so far as P.W.26 wasconcerned, at the place of occurrence what prevented the policeimmediately to register a case, remained unknown. P.W.1 would claimthat she was in the Government Hospital and P.W.27 came over thereand recorded the statement at 9.00 PM and the delay in registeringthe first information report. The first information report wasregistered at 9.00 PM and immediately it was sent to the Magistrateconcerned at 1.00 AM (night hours) and there cannot be any reason toaccept the case. In the instant case, so many inconsistent versionsare available. The first information report came into existence withembellishment. Even assuming to be true the recovery of the materialobjects of the weapons of crime from A-1 and A-6 remained proved,that cannot the basis for conviction in a given case. When all thesediscrepancies are noticed, it cannot be stated that the prosecutionhad proved the case beyond reasonable doubt and under thecircumstance, it remains to be stated that in a given case, where thetrial Judge on appreciation of evidence, has rendered the judgment ofacquittal and the appellate forum can intervene and reverse thejudgment only if on two circumstances, (i) if the judgment isperverse and (ii) the judgment of acquittal was completely orthoroughly unreasonable and lack of evidence. In the instant case,neither of the reasons is noticed by the Court and, in the consideredopinion of the Court, it is not a fit case, where this forum coulddisturb the judgment of the trial court, and it has got to besustained.For the reasons stated above, the appeal as well as the revisionpetition fail and accordingly, they are dismissed. Sd/- Asst.Registrar/true copy/ Sub Asst.Registrargl https://hcservices.ecourts.gov.in/hcservices/ To1. The Additional District & Sessions Judge(Fast Track Court) Vellore.2. -do- Thro the Principal Sessions Judge, Vellore.3. The District Collector, Vellore.4. The Director General of Police, Chennai.5. The Inspector of Police, Panamadangi Police Station, Katpadi Taluk, Vellore District.6. The Public Prosecutor High Court, Madras.+1 cc to Mr.K.Ramachandran, Advocate, SR.No.57011+1 cc to Mr.T.S.Gopalan & Co., Advocate, SR.No.56945 Common Judgment in Crl.A. No.24 of2008 and Crl.R.C.No.1764 of 2007LA {CO}TP/5.11.2009.