High Court · 2009

CA 514/2007The Appellant/Accused No.3 was already released on bail in andby the order of this Court 5.7.2007 made in Crl.M.P.No.1/2007 inCrl.A.514/2007 on the file of the High Court, Madras.CA 548/2007The Appellant/Accused No.4 was already released on bail in andby the order of this Court 5.7.2007 made in Crl.M.P.No.1/2007 inCrl.A.548/2007 on the file of the High Court, Madras.CA No.631/2007The Appellant/Accused-2 was already released on bail in and bythe orde of this Court dated 7.8.2007 made in Crl.M.P.No.1/2007 inCrl.A.No.631/2007 on the file of the High Court,Madras.IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 24-6-2009CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE C.S.KARNANCRL.A.Nos.514, 548 and 631 of 2007 and 353 of 2009Sivaraj.. Appellant/A-3 in CA 514/2007Annamalai.. Appellant/A-4 in CA 548/2007Manickam.. Appellant/A-2 in CA 631/2007Subramani.. Appellant/A-1 in CA 353/2009vs https://hcservices.ecourts.gov.in/hcservices/ State rep. ByDeputy Superintendent of PoliceOmalur Sub DivisionJalagandapuram Police Station(Crime No.384 of 2002).. Respondent in all appealsCriminal appeals preferred under Sec.374 of the Code of CriminalProcedure against the judgment of the Additional Sessions Judge,Special Court (Essential Commodities Act), Salem, made in S.C.No.22of 2005 dated 8.6.2007.For Appellants: Mr.V.Gopinath Senior Counsel for Mr.L.Mahendran in CA 514/2007For Respondent: Mr.N.R.Elango Additional PublicProsecutorCOMMON JUDGMENT(Judgment of the Court was delivered by M.CHOCKALINGAM, J.)This day, a petition for condonation of delay in preferring anappeal by A-1 was taken up for consideration. On enquiry, thatpetition was ordered, and the appeal was numbered as C.A.353/2009.The Counsel for the appellant/A-1 in that appeal would submit that heis ready, and the appeal could be heard. Thus, that appeal is alsoheard this day.2.All these four criminal appeals namely C.A.514/2007 by A-3,548/2007 by A-4, 631/2007 by A-2 and 353/2009 by A-1, concentrate inchallenging a judgment of the Additional Sessions Division, SpecialCourt (Essential Commodities), Salem, made in S.C.No.384 of 2002whereby the appellants ranked as A-1 to A-4 respectively along withanother accused stood charged, tried and found guilty as follows: https://hcservices.ecourts.gov.in/hcservices/ ACCUSEDCHARGESFINDINGPUNISHMENTA-1302 IPCGuiltyLifeimprisonmentwith a fine ofRs.3000/- anddefault sentenceA-2 to A-4302 r/w 34 IPCGuiltyLifeimprisonmentwith a fine ofRs.3000/- anddefault sentenceA-5302 r/w 109 IPCNot guiltyA-1326 IPCGuilty4 years R.I.With a fine ofRs.1000/- anddefault sentenceA-1324 IPCGuilty2 years R.I.A-1324 IPCGuilty2 years R.I.3.The short facts necessary for the disposal of these appealscan be stated as follows:(a) P.W.1 is the son and P.W.3 is the wife of the deceasedPachiappan. P.W.2 is the wife of P.W.1. P.Ws.4 and 5 were closerelatives of the deceased. The father of the deceased one KoolappaGounder had two wives. The only son through his first wife was thedeceased Pachiappan, while A-1 and A-2 were the sons through hissecond wife Kuzhandhaiammal, shown as A-5. A-3 and A-4 were thebrothers-in-law of A-1. Koolappa Gounder had landed properties whichhe divided into three shares, and one share was given to thedeceased, while another 1/3rd was given to A-1 and A-2. The lands soallotted to them were situated adjacent to each other, and often theyhad quarrels on the situation of the ridge between the lands. (b) On 27.9.2002 at about 2.00 P.M., A-1 cut a tree belonging toA-2. Equally, at about 6.00 P.M., A-2 cut a tree which belonged toA-1. The matter was brought to the notice of P.W.6 for a panchayat,and he informed that it would be heard later. (c) On 29.9.2002 at about 5.30 A.M., the deceased afterinforming P.Ws.1 to 3, went to have a tea. After sometime, P.Ws.1 to3 heard the distressing cry of Pachiappan. Immediately they rushedto the place where they found A-2 to A-4 catching hold of Pachiappan,while A-1 cut him on his head and different parts of the body withM.O.1, koduval. P.Ws.1 to 3 immediately rushed to the rescue. Atthat time, A-2 to A-4 caught hold of P.W.1, while A-1 cut him. A-1cut P.W.2 and P.W.3 also. P.W.3 lost the middle finger when he wascut. At that time P.Ws.1 to 3 were all injured. A-5 who wasstanding nearby, uttered "They could better cut all the persons andgo to prison." When a crowd gathered, the accused ran away from the https://hcservices.ecourts.gov.in/hcservices/ place of occurrence.(d) P.Ws.1 to 3 were originally taken to a private hospital andthereafter, to the Government Hospital. P.W.10, the Doctor, examinedP.W.1, and the wound certificate is Ex.P19. He also examined P.W.2,and the wound certificate is Ex.P21. P.W.3 was examined by the sameDoctor, and Ex.P20 is the wound certificate. The accident registercopies were also marked as Exs.P22 to P24 respectively. (e) A-2 proceeded to the respondent police station and at about6.45 A.M., gave Ex.P26, the report, to P.W.13, the Sub Inspector ofPolice. On the strength of that report, a case came to be registeredin Crime No.384/2002 under Sections 302 and 324 of IPC. The printedFIR, Ex.P27, was despatched to the Court. (f) On receipt of the copy of the FIR, P.W.14, the Inspector ofPolice, took up investigation, proceeded to the spot, made aninspection and prepared an observation mahazar, Ex.P6, and also arough sketch, Ex.P28. Then he conducted inquest on the dead body ofPachiappan in the presence of witnesses and panchayatdars andprepared an inquest report, Ex.P29. The dead body was sent to theGovernment Hospital along with a requisition, Ex.P11, for the purposeof autopsy. (g) P.W.8, the Civil Assistant Surgeon, attached to theGovernment Hospital, Mettur, on receipt of the said requisition,conducted autopsy on the dead body of Pachiappan and has issued apostmortem certificate, Ex.P12 with his opinion that the deceasedwould appear to have died of injury to vital organ heart and shockdue to the internal haemorrhage. (h) Pending investigation, A-1 was arrested on 29.9.2002 at 1300hours. He came forward to give a confessional statement voluntarilywhich was recorded in the presence of a witness. Ex.P9 is theadmissible part. He produced M.O.1, koduval, which was recoveredunder a cover of mahazar. All these material objects were sent forchemical analysis, and Exs.P32 and P33 are the Chemical report andSerology report respectively. (i) In the meantime, on petition transfer of investigation wasordered by this Court. Pursuant to the same, P.W.15, the Inspectorof Police took up further investigation. He examined P.Ws.1 to 5 andrecorded their statements. They implicated A-2 to A-5. Thereafter,P.W.16, the Deputy Superintendent of Police, Omalur, took up furtherinvestigation. He made a request to the Chief Judicial Magistrate,Salem, for recording the statements of the witnesses under Sec.164Cr.P.C. Accordingly, P.W.17, the Judicial Magistrate No.I, Mettur,recorded the statements of P.Ws.1 to 5, which are marked as Exs.P1 toP5 respectively. (j) P.Ws.1 to 3 were further examined by P.W.9, the Doctor, andthe wound certificates are marked as Exs.P18, P14 and P16respectively. On completion of investigation, the Investigator filedthe final report. https://hcservices.ecourts.gov.in/hcservices/

4.The case was committed to Court of Session, and necessarycharges were framed. In order to substantiate the charges, theprosecution examined 17 witnesses and also relied on 36 exhibits and10 material objects. On completion of the evidence on the side of theprosecution, the accused were questioned under Sec.313 of Cr.P.C., asto the incriminating circumstances found in the evidence of theprosecution witnesses which they flatly denied as false. No witnesswas examined; but, two documents were marked as Exs.D1 and D2. Thetrial Court heard the arguments advanced. After scrutiny of thematerials available and consideration of the submissions made, thetrial Court has found A-1 to A-4 guilty and awarded punished asreferred to above and acquitted A-5. Hence these appeals at theinstance of the appellants.5.Advancing arguments on behalf of A-1 in C.A.No.353/2009, thelearned Counsel would submit that in the instant case, theoccurrence, according to the prosecution, has taken place on29.9.2002 at about 6.45 A.M.; and that it was A-2 who has given thereport which is marked as Ex.P26 on the strength of which a case cameto be registered. 6.As far as A-1 was concerned, the learned Counsel would urgethat the prosecution has miserably failed to prove its case; that inthe instant case, originally P.Ws.1 to 3 were shown as eyewitnesses;that thereafter, when the further investigation was ordered, P.Ws.4and 5 have been added as eyewitnesses; that originally the finalreport was filed only against A-1; and that after the furtherinvestigation A-2 to A-5 have also been added. 7.The learned Counsel would further add that in the instantcase, as far as A-1 was concerned, he was actually injured; thatEx.D1 was the report issued; that Ex.D1 would clearly indicate thathe sustained head injury; that no whisper was made by any one of theeyewitnesses how A-1 sustained injuries; and that the non-explanationof the injuries sustained by A-1 by the prosecution would be fatal tothe prosecution case. 8.Added further the learned Counsel vehemently that the casecame to be registered in Crime No.384 of 2002 on the complaint of A-2; that on investigation, the charge sheet was laid; that it is alsoadmitted by P.W.14, the Investigating Officer, that a case came to beregistered in Crime No.385 of 2002 at the instance of one Sampoornamin respect of the injuries sustained by her husband A-1 and thus, itwas A-1 who sustained injuries in the course of the very sametransaction; that if to be so, the prosecution was duty bound toplace the FIR and all other connected records and materials withregard to Crime No.385/2002, but failed to do so; that theprosecution did not enable the trial Court to find out either thegenesis of the crime or the truth to adumbrate justice; that underthe circumstances, the non-explanation of the injuries sustained byA-1 and also the non-production of all the materials in CrimeNo.385/2002 were fatal to the prosecution case; that so long theprosecution did not enable the Court to find out the genesis, it is afit case where the trial Court should have entered a judgment of https://hcservices.ecourts.gov.in/hcservices/ acquittal, and instead, it has found A-1 guilty, and hence he isentitled for acquittal in the hands of this Court.9.Advancing arguments on behalf of the appellants/A-3 and A-4 inCA Nos.514 and 548 of 2007, the learned Senior Counsel Mr.V.Gopinathwould submit that in the instant case, the occurrence has taken placeon 29.9.2002 at about 6.45 A.M. and a case came to be registered onthe strength of Ex.P26, the report, given by A-2; that Ex.P27 is theFIR; that originally the investigation was done by P.W.14; that hehas filed the charge sheet on 12.12.2002; that the same was alsotaken as PRC in which A-1 was shown as only accused in the case; thatsubsequently, a petition was filed before this Court; that furtherinvestigation was ordered, and it was done by P.Ws.15 and 16; thatanother charge sheet was laid on 6.1.2004, wherein A-2 to A-5 havebeen added; that it is pertinent to point out that originally thecase was registered on the complaint of A-2 marked as Ex.P26; that itis not the case of the prosecution that Ex.P26, the original reportgiven by A-2, was found to be false or incorrect; that theInvestigating Officer proceeded on the basis of the complaint givenby A-2 under Ex.P26; that even the statement recorded by P.W.14 fromthe witnesses were actually relied upon; that apart from that, allthe materials collected by him, were also relied upon; that it is notthe case of either P.W.15 or P.W.16 who made the furtherinvestigation, that there was any defect or error or irregularitycommitted by P.W.14; that what was all added at the time ofadditional charge sheet made by P.W.16 was that A-2 to A-4 caughthold of the deceased, and A-5 uttered certain words; that once theprosecution rested its case on the complaint given by A-2, how A-2was also added as an accused remained unknown; that as far as A-2 toA-5 were concerned, it was only a development and without anymaterial whatsoever; that A-2 to A-4 have been added calling it asfurther investigation; and that as far as A-2 to A-4 were concerned,there was no ioto of evidence. 10.Added further the learned Senior Counsel that insofar asP.W.9, the Doctor, he has examined P.Ws.1 to 3 after a period of 14months and has given wound certificates and also accident registercopies; that he has spoken as to the injuries as found in the woundcertificates issued by him; and that the examination of theprosecution witnesses by another Doctor who gave furthercertificates, would not in any way advance or march the prosecutioncase. 11.Added further the learned Senior Counsel that in the instantcase, so far as A-2 to A-5 were concerned, there was not only lack ofevidence, but also bereft of evidence; that under the circumstances,they are entitled for acquittal; but, the trial Court has taken anerroneous view, and hence they are to be acquitted by this Court.12.The Court heard the learned Additional Public Prosecutor onall the above contentions and paid its anxious consideration on thesubmissions made.13.It is not in controversy that one Pachiappan, the husband of https://hcservices.ecourts.gov.in/hcservices/ P.W.3 was done to death in an incident that had taken place at about6.45 A.M. on 29.9.2002 at the place of occurrence. Following thecomplaint given by A-2, marked as Ex.P26, a case came to beregistered by the respondent police in Crime No.384 of 2002, and theinvestigation was taken up by P.W.14. Following the inquest and thepreparation of the inquest report by him, the dead body was subjectedto postmortem, and the postmortem Doctor has been examined as P.W.8,who has not only deposed before the Court, but also issued apostmortem certificate to the effect that the deceased would appearto have died of injury to vital organ namely heart and shock due tothe internal haemorrhage. The fact that Pachiappan died out ofhomicidal violence was never disputed by the appellants before thetrial Court, and hence no impediment was felt. The trial Court wasright in recording so.14.In order to substantiate the fact that Pachiappan died in thesaid incident and also due to the attack made by A-1 with a koduval,the prosecution examined three witnesses who were P.Ws.1 to 3. Trueit is, P.Ws.1 to 3 were the close relatives of the deceasedPachiappan. Needless to say that merely on the ground of closerelationship, the evidence of the witnesses cannot be rejected. But,it must be subjected to careful scrutiny. It remains to be statedthat in a given case where the eyewitnesses happened to be injuredwitnesses, their evidence should not be discarded unless and untilstrong circumstance is noticed or reason is brought about. In theinstant case, P.Ws.1 to 3 have spoken in one voice that after hearingthe distressing cry of Pachiappan, they rushed to the spot; that atthat time, they found A-1 attacking the deceased on different partsof the body with M.O.1, koduval; that in that process, when they wentto the rescue, they were actually injured; that A-1 attacked them;and that they were taken to the hospital. The accident registercopies and the wound certificates are marked as Exs.P.19 to P24respectively, wherein the place and time of occurrence are allmentioned. 15.It is pertinent to point out that it was A-2 who rushed tothe police station within a short span of time and gave thecomplaint which is marked as Ex.P26 wherein he has narrated theentire incident pursuant to which the Investigating Officer, P.W.14,has taken up investigation, proceeded to the spot and made aninquest, and the dead body was subjected to postmortem by P.W.8, theDoctor, who has also given evidence. The narration of the injuriessustained by Pachiappan as spoken to by P.Ws.1 to 3 are actuallyfound in the postmortem certificate. Thus, it can be well statedthat the medical evidence stood in full corroboration of the oculartestimony. Yet another circumstance is the recovery of weapon ofcrime M.O.1 koduval, pursuant to the confessional statement given byA-1. All would go to show that it was A-1 who attacked the deceasedat the time of occurrence and caused his death instantaneously. 16.Now the contentions put forth by the learned Counsel for A-1remain to be considered. The learned Counsel urged only two points.Firstly, A-1 sustained injuries as could be seen from Ex.D1, and itremained unexplained. Secondly, as far as these injuries were https://hcservices.ecourts.gov.in/hcservices/ concerned, Sampoornam, the wife of A-1, lodged a complaint before thesame police station, and a case has also been registered in CrimeNo.385/2002, and all records pertaining to this crime have actuallybeen suppressed, and thus the trial Court was unable to find out thegenesis of the crime due to the suppression of the requiredmaterials. As far as these two contentions are concerned, onanalysis of the entire evidence, this Court is of the consideredopinion that these two contentions have got to be discountenanced forthe following reasons. 17.Firstly, a perusal of Ex.D1 would clearly indicate that therewas a sutured wound on the head of A-1. It would clearly beindicative of the fact that he has actually been treated by a medicalperson already. But, that medical person has not been examined.Apart from this, from the very nature of the injuries as found inEx.D1, it is quite evident that they were only superficial andsimple. Needless to say that in every criminal case, the prosecutionis duty bound to explain the injuries sustained by the accused. But,in the case on hand and that too when the injuries are simple andsuperficial, the contention that the injuries as found in Ex.D1 werenot explained, in the considered opinion of this Court, would not inany way affect the truth or rigor of the prosecution case. 18.As regards the second contention raised that the recordspertaining to Crime No.385/2002 were not placed before the trialCourt, this Court is unable to agree with the learned Counsel for A-1. In any given criminal trial, whenever a case is registered by thepolice at the instance of the accused in respect of the sametransaction, the prosecution is duty bound to place before the Courtall the materials pertaining to that crime. In the instant case,Crime No.384/2002 was registered at the instance of A-2 and on thestrength of Ex.P26, the report. As far as the next crime numbernamely 385/2002, is concerned, it is admitted that it was registeredon a complaint given by Sampoornam, the wife of A-1. At thisjuncture, the learned Additional Public Prosecutor took the Court tothe suggestions made to the eyewitnesses that they suspected that itwas A-1 who caused the death of Pachiappan, and thereafter theytrespassed into the house of A-1, dragged him out and causedinjuries, and this suggestion would be indicative of the defenceplea. Further from the analysis of the entire evidence, this Courtis unable to see that the injuries were sustained by A-1 in thecourse of the very same transaction. So long the defence is unableto show that the injuries were sustained by A-1 in the course of thesame transaction, though a case was registered under the next crimenumber namely 385/2002, the Court cannot take it into account. It istrue that two crime numbers are next to each other, and it is alsoadmitted that Sampoornam, the wife of A-1, has given a complaint, anda case has also been registered. So long it is not shown that A-1sustained injuries in the course of the very same transaction, thougha case registered, the defence cannot be allowed to take advantage toput forth an argument that the prosecution did not place thematerials in order to find out the genesis of the crime or did notenable the Court to find out the truth. In the instant case, thenarration of the entire incident by P.Ws.1 to 3 would clearly https://hcservices.ecourts.gov.in/hcservices/ indicate the genesis of the crime that it was A-1 who attackedPachiappan with a koduval and caused instantaneous death, and in thatprocess, P.Ws.1 to 3 have also been injured. Under thecircumstances, the contentions put forth by the learned Counsel forA-1 cannot be countenanced, and hence they have got to be rejected.Thus, the prosecution has factually proved that it was A-1 whoattacked Pachiappan and caused instantaneous death. The trial Courtwas perfectly correct in recording a finding that A-1 was guilty ofmurder and awarding punishment referred to above. Hence nointerference is warranted. Accordingly, the judgment of the trialCourt as regards A-1 is confirmed. 19.As far as A-2 to A-5 are concerned, they have been added asaccused in the additional charge sheet after the furtherinvestigation was ordered. It is pertinent to point out thatoriginally P.W.14, after investigation filed the charge sheet,wherein A-1 was the only accused shown, and once furtherinvestigation was ordered by this Court, P.Ws.15 and 16 have added A-2 to A-5 in order to make them as accused. The only addition thatwas made was that A-2 to A-4 actually obstructed the deceased, and asfar as A-5 was concerned, he made some utterances. It is pertinentto point out that even P.Ws.15 and 16 who conducted furtherinvestigation, have not given up the original FIR or the materialsrecovered or the statements recorded by P.W.14 under Sec.161 Cr.P.C.from the witnesses, and thus they remained in tact. But, theseadditions have been made. So long as the original FIR and also thestatements recorded from the witnesses led P.W.14 to file such acharge sheet, these additions in no way would develop the case inorder to add A-2 to A-5. Therefore, as regards A-2 to A-5, theprosecution had neither materials to be added apart from the originalcharge sheet, nor any evidence to be placed before the trial Court.But, the trial Court though acquitted A-5, has found A-2 to A-4guilty erroneously, and hence the judgment of the trial Court insofaras A-2 to A-4 has got to be set aside, and they are entitled foracquittal.20.In the result, C.A.Nos.514, 548 and 631 of 2007 are allowedsetting aside the judgment of the trial Court in respect of A-2 to A-4. A-2 to A-4 are acquitted of the charges levelled against them.The bail bonds executed by them shall stand terminated. The fineamounts if any paid by them will be refunded to them. 21.In the result, C.A.No.353 of 2009 is dismissed confirming thejudgment of the trial Court in respect of A-1. Sd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ nsv/To:1.The Additional Sessions Judge Special Court (EssentialCommodities Act), Salem2.-do- Thro' the Principal District and Sessions Judgeand Special Court( Essential Commodities Act),Salem.3.The Judicial Magistrate No.II,Mettur Dam, Salem.4.-do- Thro' The Chief Judicial Magistrate,Salem.5.The Director General of Police,Mylapore, Chennai-4.6.The District Collector, Salem.7.The Deputy Superintendent of Police Omalur Sub Division Jalagandapuram Police Station (Crime No.384 of 2002)8.The Public Prosecutor High Court, Madras.9. The Section Officer,Crl.Section, High Court,Madras.+1cc to Mr.L.Mahendan,Advocate Sr 26001+1cc to Mr.G.R.Swaminathan, Advocate Sr 25893CKN(CO)km/13.7.C.A.Nos.514, 548 and 631 of 2007 and 353 of 2009