Prabhu @ Prabakaran v. State represented byInspector of PoliceKatpadi Police StationVellore District

BAIL SLIPThat the 1st Appellant / Accused No.1 namely Prabhu @ Prabakaranwas directed to be released on bail by the order of this Court dated04.08.2008 and made in Crl.M.P.No.2/08 in Crl.A.No.66/08.IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 17-6-2009CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE C.S.KARNANCRL.A.No.66 of 20081.Prabhu @ Prabakaran2.Jayaraman3.Amudha.. Appellants(Accused)vsState represented byInspector of PoliceKatpadi Police StationVellore District.. Respondent Criminal appeal preferred under Sec.374(2) of Criminal ProcedureCode against the judgment of the Principal Sessions Court, Vellore,made in S.C.No.273 of 2004 dated 8.1.2008.For Appellants: Mr.R.SankarasubbuFor Respondent: Mr.N.R.Elango Additional Public ProsecutorJUDGMENT(Judgment of the Court was delivered by M.CHOCKALINGAM, J.)This appeal challenges a judgment of the Principal SessionsDivision, Vellore, in S.C.No.273 of 2004 whereby the appellants threein number, stood charged, tried and found guilty as follows:ACCUSEDCHARGESFINDINGPUNISHMENTA-2341 IPCGuilty1 month SIA-3341 IPCGuilty1 month SIA-1341 r/w 34 IPCGuilty1 month SI https://hcservices.ecourts.gov.in/hcservices/ ACCUSEDCHARGESFINDINGPUNISHMENTA-1302 IPCGuiltyLifeimprisonmentwith a fine ofRs.1000/- anddefault sentenceA-1326 IPCGuiltyLifeimprisonmentA-2 & A-3302 r/w 34 IPCGuiltyLifeimprisonmentwith a fine ofRs.1000/- anddefault sentenceA-2 & A-3326 r/w 34 IPCGuiltyLifeimprisonment2.The short facts necessary for the disposal of this appeal canbe stated as follows:(a) P.W.1 is the brother's wife of the deceased Ekambaram.Ekambaram was a bachelor. The accused were also residing in the samecolony where P.W.1 and her family members were residing. They wererelatives. P.W.1's husband used to go to the house of the accused.The deceased was asking A-2 to give his daughter Lavanya formarriage. But A-2 was refusing. In that there arose strainedrelationship. On the date of occurrence that was on 24.4.2003,pursuant to the quarrel between the accused and the deceased, A-2caught hold of the hair of P.W.1, while A-3 caught hold of thedeceased Ekambaram. A-1 brought acid and poured the same on P.W.1and also Ekambaram by saying "You die. You should not think of anyother girl". P.W.1 sustained burn injuries on her face, chest, righthand shoulder and other parts of the body, while Ekambaram alsosustained severe burn injuries. P.Ws.2 and 3 who were standingnearby, witnessed the entire occurrence. They took both P.W.1 andEkambaram to Vellore Christian Medical College Hospital. (b) P.W.6, the Assistant Surgeon, attached to the GovernmentHospital, Vellore, was on duty on 25.4.2003. At about 12.05 hours,P.W.1 was admitted. He examined her, and the injuries are noted inthe accident register copy, Ex.P7. On the very day, P.W.6 examinedA-1 at about 12.30 hours, and the injuries were noted in the accidentregister copy Ex.P8. (c) P.W.7, the Assistant Professor in the Government Hospital,Vellore, at about 4.45 P.M. On 25.4.2003, examined A-2. Onexamination, he found acid injuries at the back and right fore armand A-2 was treated as out-patient. Ex.P10 is the accident registercopy in that regard. At about 4.50 P.M., he gave treatment to A-3,found acid burn injuries on the face and back and issued Ex.P11 theaccident register copy. (d) P.W.15, the Sub Inspector of Police, attached to therespondent police station, at about 4.00 A.M. on 25.4.2003, on https://hcservices.ecourts.gov.in/hcservices/ intimation went to the Government Hospital, Vellore, and recorded thestatement of P.W.1 marked as Ex.P1. On the strength of the same, acase in Crime No.100 of 2003 under Sec.307 of IPC was registered.Ex.P18, the printed FIR, was despatched to the Court along withEx.P1. (e) P.W.18, the Inspector of Police, on receipt of the copy ofthe FIR, took up the case for investigation. He proceeded to thespot, made an inspection and prepared an observation mahazar, Ex.P12,and a rough sketch, Ex.P22. Then he proceeded to the place ofoccurrence where he took the photographs through P.W.10, thephotographer. The photographs and negatives are also marked asEx.P15 series. P.W.18 proceeded to the Government Hospital andrecorded the statement of the witnesses. On the same day at about2.00 P.M., he arrested A-1 to A-3. They gave their confessionalstatements voluntarily, which were also recorded. Further, all thedocuments were sent to the Court. (f) On 6.5.2003, despite treatment, Ekambaram died, and anintimation was sent to the respondent Police Station. The case wasamended to Sec.302 IPC. The express report, Ex.P23, was despatched tothe Court. Then, the inquest was conducted by the InvestigatingOfficer in the presence of witnesses and panchayatdars, and heprepared an inquest report, Ex.P24. Thereafter, a requisition wasgiven to the hospital authorities for the purpose of autopsy.(g) P.W.5, the Doctor, attached to the Government Hospital,Vellore, on receipt of the requisition, conducted autopsy on the deadbody of Ekambaram and has given his final opinion under Ex.P5, thepostmortem certificate, that the deceased would have died ofsepticemia due to acid burns about 9 to 11 hours prior to autopsy. (h) All the material objects were sent for analysis. Ex.P3 isthe chemical report. P.W.18 examined all other witnesses andrecorded their statements and thereafter, filed the final reportunder Sections 341, 326, 302 r/w 34 IPC as against A-1 and underSections 341, 302, 326 r/w 109 IPC as against A-2 and A-3.3.The case was committed to Court of Session and necessarycharges were framed. In order to substantiate the charges, theprosecution examined 18 witnesses and also relied on 24 exhibits and4 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. On theside of the defence, D.Ws.1 and 2 were examined, and also one exhibitwas marked. On completion of evidence on both sides, the trial Courtheard the arguments advanced and found the appellants guilty andawarded punishment as referred to above. Hence this appeal at theinstance of the appellants.4.Advancing arguments on behalf of the appellants, the learnedCounsel Mr.R.Sankarasubbu would submit that the prosecution hasmiserably failed to prove its case; that the prosecution rested itscase apart from the evidence of P.W.1, an injured, on the evidence ofP.Ws.2 and 3; that the lower Court was not ready to believe and https://hcservices.ecourts.gov.in/hcservices/ accept the evidence of P.Ws.2 and 3 and rejected the same, and thusthe only evidence that was available for the prosecution was P.W.1;that P.W.1 was actually the brother's wife of the deceased; that theoccurrence even as per the prosecution case, has taken place before atemple where number of persons were also available at that time; thataccording to the prosecution, the motive was that the deceasedEkambaram wanted to marry the daughter of A-2 and A-3, who is alsothe sister of A-1, to which they were not amenable, and he gotaggrieved, and thus they were on inimical terms; that the occurrence,according to the prosecution, has taken place at 10.30 P.M. on24.4.2003; that it is pertinent to point out that the occurrence hasnot taken place in the house of the prosecution witnesses which issituated abutting the house of the accused, and thus it would bequite clear that P.W.1 and the deceased were the aggressors; thateven at that time, according to the prosecution, there was actually aquarrel, and in that quarrel, A-1 just got into the house and broughtthe acid can, and A-2 caught hold of P.W.1, and A-3 caught hold ofthe deceased, and in that, the acid was poured on the deceased, andat that time, acid was poured on P.W.1 also by A-1; that charges havealso been levelled against; but, the prosecution has miserably failedin that regard since P.Ws.2 and 3 have given inconsistent version;and that the prosecution further could not prove the overt actscommitted by A-2 and A-3. 5.The learned Counsel would further submit that actually therewas a free melee, and fight was going on pursuant to the quarrel evenas per the available evidence; that as far as accused are concerned,in order to prove the defence plea, D.Ws.1 and 2 were examined; thatfrom the evidence of D.Ws.1 and 2, it would be quite clear that itwas the deceased who came with the can filled with kerosene, and itwas he who actually poured kerosene on the accused; that further inthe instant case, P.Ws.1 and 3 have categorically admitted that theyfirst went to the police station and thereafter to the hospital, andthus they should have given the complaint to the respondent police atthe earliest; and that the said complaint has been suppressed for thereasons known to the prosecution.6.Added further the learned Counsel that it was actually theaccused who sustained acid injuries; that the accident registercopies have also been produced; that on different parts of the body,they sustained injuries; that acid was actually thrown; that allwould go to show the act of the deceased; that apart from that,immediately the deceased was taken to the CMC Hospital, Vellore; thathis conditions were actually recorded by the Doctor and the statementof the person who took him, was also recorded in the accidentregister originally; but that accident register was actuallysuppressed or not actually produced before the Court; that he wastaken to the hospital on 24.4.2003; that he was under treatment till6.5.2003 when he died; that the case diary pertaining to thetreatment till the time was not filed; that even from the Doctor'sevidence, it would be quite clear that septicemia was also developed;that in the instant case, as far as A-2 and A-3 are concerned, thereis nothing to show that they had got any common intention to share;that in their regard, the evidence was not only feeble, but alsoweak; that it can be well stated that there was bereft of evidence;and that under the circumstances, they are entitled for acquittal. https://hcservices.ecourts.gov.in/hcservices/

7.Added further the learned Counsel that in view of the freefight, so far as A-1 is concerned, even assuming that the prosecutionhas proved the factual position, the act of A-1 would not attract thepenal provision of murder, and this legal position has got to beconsidered by this Court.8.The Court heard the learned Additional Public Prosecutor on allthe above contentions and paid its anxious consideration on thesubmissions made. 9.It is not in controversy that one Ekambaram, following anincident that took place at 10.30 P.M. On 24.4.2003, was taken to CMCHospital, Vellore, and he was given treatment. Despite treatment, hedied on 6.5.2003, and the medical opinion has also been canvassed.The above factual position was not disputed by the appellants beforethe trial Court. 10.The gist of the case of the prosecution was that Ekambaramwanted to marry the daughter of A-2 and A-3, who is also the sisterof A-1, to which they were not amenable, and in that strainedrelationship prevailed; that at the time of occurrence namely 10.30P.M., on 24.4.2003, both P.W.1 and Ekambaram were just in front ofthe temple; that A-1 went inside the house and brought a can filledwith acid, and A-2 caught hold of P.W.1 and A-3 caught hold of thedeceased, and at that juncture, A-1 poured acid both on P.W.1 andalso the deceased. In order to substantiate the above accusation,three witnesses were examined by the prosecution. P.W.1 is thebrother's wife of the deceased Ekambaram. The evidence of P.Ws.2 and3 were not accepted by the trial Court for the reason that there werelot of inconsistencies in their evidence which led for rejection oftheir evidence. So far as P.W.1 was concerned, it is true that sheactually sustained injuries, and she was taken to the hospital. Shehas given statement, and the accident register copy is marked asEx.P.7, which would clearly indicate that such an occurrence hastaken place at 10.30 P.M. on 24.4.2003. At this juncture, it ispertinent to point out that the only witness available for theprosecution regarding the act of A-2 and A-3, is P.W.1. The earliestdocument which has come into existence is the accident register copy.Thereafter a Magistrate was called to record her dying declaration.Since she is alive, the document could not be taken as a dyingdeclaration and could not even be attached with some evidentiaryvalue; but, it could be treated as statement under Sec.161 Cr.P.C.But, at the same time, it has been marked as Ex.P.2. A perusal ofthe same would clearly indicate that she was actually caught hold ofby A-3; but, the prosecution case is otherwise. According to theprosecution, it was A-2 who caught hold of her, and thus, the benefitof this inconsistency between the document and the prosecution caseas put forth before the trial Court, must go to the accused. 11.Apart from the above, as could be seen from the availableevidence and circumstances shown, when A-1 actually threw acid onP.W.1 and the deceased Ekambaram, A-2 and A-3 who were actually bythe side, would have intervened to pacify the situation, and in thatprocess, the acid sprang on them, and they have sustained injuries;but, the trial Court has taken a view that the fact that A-2 and A-3have sustained injuries at the time of the transaction would be https://hcservices.ecourts.gov.in/hcservices/ pointing to their presence at the time of occurrence and also theirinvolvement. In the considered opinion of this Court, the fact thatA-2 and A-3 sustained injuries has to be taken that they sustainedinjuries in that process when they intervened to pacify thesituation, and there is also nothing to show that they have sharedthe common intention with A-1. All put together would go to showthat it is highly doubtful whether A-2 and A-3 could have got anyinvolvement in the transaction, and thus the benefit should go to A-2and A-3. They are entitled for acquittal in the hands of this Court.12.As far as A-1 is concerned, the lower Court has rightlyaccepted the evidence of P.W.1. Needless to say in a given case likethis, when one of the eyewitnesses happened to be an injured witness,the evidence of such witness should not be discarded or rejectedunless and until a strong circumstance is noticed or reason isbrought about. In the instant case, P.W.1 has given categoricalevidence. Apart from that, there was also motive when Ekambaramwanted to marry the daughter of A-2 and A-3, who is also the sisterof A-1, and they refused. Thus they were on inimical terms. A-1poured acid at the time of occurrence not only on the deceased butalso on P.W.1. The evidence of P.W.1 has inspired the confidence ofthe Court. It would be quite clear that it was A-1 who poured acidboth on the deceased and also on P.W.1. This has been clearly provedby the prosecution by sufficient evidence. 13.As far as the second line of argument that the act of A-1would not attract the penal provision of murder is concerned, thisCourt is able to see sufficient force. In the instant case, it istrue that A-1 has poured acid on the deceased and also on P.W.1 atthe time of occurrence. It is to be pointed out that he was taken toCMC Hospital, Vellore, on 24.4.2003, and he was admitted there. Hehas been in the hospital as inpatient till 6.5.2003. Immediately,when he was admitted in the hospital, whether he was oriented,whether he was conscious and whether he was actually in a position tospeak, no evidence is available. All these conditions should havebeen recorded in the accident register; but, the accident registerwas not filed, or the original has not been summoned. No reasons arebrought to the notice of the Court by the prosecution. Apart fromthis, the deceased was under treatment from 24.4.2003 till 6.5.2003.From the evidence of Doctor, it would be quite clear that Ekambaramalso developed septicemia. Under such circumstances, a duty is castupon the prosecution to produce the case diary pertaining to thetreatment, but it has failed to do so. Thus, all these circumstanceshave got to be taken into account. As far as the nature of the actof A-1 is concerned, this Court is of the considered opinion that theact of A-1 would not attract the penal provision of murder, but wouldattract the provisions under Sec.304 (Part I) of IPC and awardingpunishment of seven years Rigorous Imprisonment would meet the endsof justice. 14.Accordingly, the conviction and sentence imposed by the trialCourt on A-1 under Sec.302 of IPC are set aside, and instead A-1 isconvicted under Sec.304 (Part I) of IPC and is directed to sufferseven years Rigorous Imprisonment. The fine amount awarded by thetrial Court will hold good. The period already undergone by A-1shall be given set off. https://hcservices.ecourts.gov.in/hcservices/

15.As far as the conviction of A-1 by the trial Court underSec.326 of IPC is concerned, this Court is of the view that the samehas got to be sustained. Accordingly, it is sustained. But, the lifeimprisonment awarded by the trial Court is modified, and A-1 isdirected to undergo five years Rigorous Imprisonment under Sec.326IPC.16.As regards the conviction and sentence imposed by the trialCourt on A-1 under Sec.341 read with 34 of IPC, the same are setaside, and A-1 is acquitted of that charge.17.In the result, this criminal appeal is partly allowed settingaside the judgment of conviction and sentence passed by the lowerCourt in respect of A-2 and A-3. A-2 and A-3 are acquitted of thecharges levelled against them. The bail bonds executed by them shallstand terminated. The fine amounts if any paid by them will berefunded to them. It is reported that A-1 is on bail. Hence theSessions Judge will take steps to commit A-1 to prison to undergo theremaining period of sentence. Both the sentences imposed on A-1 areto run concurrently. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarnsvTo:1.The Principal Sessions Judge Vellore2. The Judicial Magistrate No.I, Vellore3. -Do-Thro The Chief Judicial Magistrate, Vellore4. The District Collector, Vellore5. The Director General of Police, Chennai.6. The Superintendent, Central Prison, Vellore7. The Inspector of Police Katpadi Police Station Vellore District8. The Public Prosecutor High Court, Madras.1 cc To Mr.R.Sankara Subbu, Advocate, SR.24400CRL.A.No.66 of 2008MBS(CO)SRA(26/6/2009)