Jayabal & Ors. v. State Inspector of Police Arcot Town Police Station

Bail SlipThe Appellants 3 to 7 (Accused Nos. 3 to 7) namely 1.Jayabal,2.Baskar, 3.Barathi, 4.Arivazahagan @ Harikrishnan 5.Amutha weredirected to be released on bail by the order of this Court dated26.02.2008 in M.P.Nos.1 & 2 of 2008 in C.A.No.91/2008.IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 9-1-2009CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE M.VENUGOPALCRL.A.No.91 of 20081.Mahi2.Sarathy3.Jayapal4.Baskar5.Barathi6.Arivazhagan @ Harikrishnan7.Amutha.. Appellants vsState rep. ByInspector of PoliceArcot Town Police Station(Crime No.1283 of 2004).. Respondent Criminal appeal preferred under Sec.374(2) of Cr.P.C. against thejudgment of the Additional District and Sessions Judge, Fast TrackCourt No.II, Ranipet, in S.C.No.104 of 2005 dated 31.12.2007.For Appellants: Mr.V.Gopinath Senior Counsel for Mr.L.MahendranFor Respondent: Mr.P.Kumaresan Additional PublicProsecutorJUDGMENT(Judgment of the Court was delivered by M.CHOCKALINGAM, J.)This appeal challenges a judgment of the Additional SessionsDivision, Fast Track Court No.II, Ranipet, made in S.C.No.104 of 2005whereby the appellants seven in number ranked as A-1 to A-7 https://hcservices.ecourts.gov.in/hcservices/ respectively, along with A-8 and A-9 stood charged, tried and foundguilty as follows:ACCUSEDCHARGESFINDINGPUNISHMENTA-1 to A-4, A-6to A-9147 IPCA-1 to A-4, A-6& A-7 GuiltyA-8 & A-9 notguilty1 year RIA-5148 IPCGuilty1 year RIA-1 & A-2302 r/w 34 IPCGuiltyLifeimprisonmentwith a fine ofRs.5000/-, i/d 1month RIA-3 to A-9302 r/w 149 IPCA-7 to A-7GuiltyA-8 & A-9 notguiltyLifeimprisonmentwith a fine ofRs.5000/- i/d 1month RIA-3323 IPCGuilty1 year RIA-1, A-2, A-4 toA-9323 r/w 149 IPC A-1, A-2, A-4 toA-7 GuiltyA-8 & A-9 notguilty1 year RIA-4323 IPCGuilty1 year RIA-1 to A-3, A-5to A-9323 r/w 149 IPCA-1 to A-3 & A-5to A-7 GuiltyA-8 & A-9 notguilty1 year RIA-5326 IPCGuilty7 years RI alongwith a fine ofRs.5000/-, i/d 1month RIA-1 to A-4, A-6to A-9326 r/w 149 IPCA-1 to A-4, A-6& A-7 GuiltyA-8 & A-9 notguilty7 years RI alongwith a fine ofRs.5000/- i/d 1month RIA-6323 IPCGuilty1 year RIA-1 to A-5 andA-7 to A-9323 r/w 149 IPCA-1 to A-5 & A-7GuiltyA-8 & A-9 notguilty1 year RIA-7323 IPCGuilty1 year RI https://hcservices.ecourts.gov.in/hcservices/ ACCUSEDCHARGESFINDINGPUNISHMENTA-1 to A-6, A-8& A-9323 r/w 149 IPCA-1 to A-6GuiltyA-8 & A-9 notguilty1 year RIA-8323 IPCNot guiltyA-1 to A-7 & A-9323 r/w 149 IPCNot guiltyA-9323 IPCNot guiltyA-1 to A-8323 r/w 149 IPCNot guilty2.As stated above, A-1 to A-7 in respect of the other charges andA-8 and A-9 in respect of all the charges were acquitted by the trialCourt. Hence this appeal at the instance of the appellants.3.The short facts necessary for the disposal of this appeal canbe stated as follows:(a) P.Ws.1, 2, 6 and 7 are the sons of the deceased Subramani.P.W.3 is the wife of the deceased. P.W.4 is the daughter-in-law ofthe deceased. A-1, A-2, A-3 and A-5 are the sons of A-9, while A-6is the brother's son of A-9. A-7 and A-8 are the daughters of A-9.A-8 is the wife of A-4. All the accused and all the said witnesseswere residents of Sambasivam Village. The accused belonged to theScheduled Caste, and they were living in their colony. The saidwitnesses belonged to Vanniar community. On 10.11.2004, the cow ofA-1 grazed in the land of the deceased which was questioned by him.Then, the deceased returned home. On the next day namely 11.11.2004,at about 10.30 A.M., while the deceased and P.Ws.1 to 4 went to theirland to spread the groundnut on the road, A-1 to A-9 armed withsticks and knife respectively came there and questioned the deceasedas to his conduct on the previous day. Then, they began to attackhim. A-1 attacked him with M.O.4 stick, on his head, and A-2 beatthe deceased with a stick on the face and right shoulder. A-3 beatP.W.1 on the back of the head with a stick and on the right shoulder.A-4 beat P.W.1 with a stick on his left knee. A-5 beat P.W.2 with anaruval, M.O.5, on the forehead. A-6 beat P.W.3 on both ears with astick. A-9 beat P.W.4 on both cheeks, and A-7 beat her on both legs.P.Ws.6 and 14 who were there, witnessed the occurrence. After theoccurrence, the accused persons fled away from the place.(b) All the injured persons along with the severely injuredSubramani were taken to the hospital. They were all medicallyexamined by P.W.22, the Doctor, attached to the Government Hospital,Arcot. The accident register copy for P.Ws.2, 3 and 4 are marked asExs.P35, P36 and P38 respectively. For P.W.1, the same is marked asEx.P37. Further, the accident register copy of the deceased ismarked as Ex.P34. An intimation was given to the respondent policestation. P.W.23, the Sub Inspector of Police, rushed to the hospitaland took the statement of P.W.1, which is marked as Ex.P1, on thestrength of which a case came to be registered in Crime No.1283 of2004 under Sections 147, 148, 307, 324 and 323 of IPC. The printedFIR in that regard is marked as Ex.P42. https://hcservices.ecourts.gov.in/hcservices/ (c) At about 2.30 P.M., A-5 appeared before the respondent policestation and gave a report. On the strength of Ex.P43, the report, acase came to be registered in Crime No.1284/2004, and the printed FIRis Ex.P44. Both the FIRs in the respective cases were despatched tothe Court. A-1 and A-5, who sustained injuries, were also sent tothe Government Hospital for treatment. The accident register copyfor A-5 is marked as Ex.P40, and for A-1, it is marked as Ex.P41.Thereafter, P.W.1 was sent for further treatment to CMC Hospitalwhere P.W.10, the Doctor, gave him treatment, and the accidentregister copy is marked as Ex.P39. (d) On receipt of the copies of the FIRs in both the cases,P.W.24, the Inspector of Police, took up investigation, proceeded tothe spot, made an inspection and prepared an observation mahazar,Ex.P5 and a rough sketch, Ex.P45. Then, he recovered the sampleearth and bloodstained earth under a cover of mahazar. Pending theinvestigation, A-2 to A-4, A-6 and A-7 were arrested. Theconfessional statements of A-3, A-2, A-4, A-6 and A-7 are marked asExs.P19, 21, 23, 25 and 27 respectively. On the strength of thesame, M.O.4 series, sticks, were recovered from A-2, A-3, A-4 and A-7. Further, A-1 and A-5 were arrested later, and they gaveconfessional statements. Ex.P29 is the admissible part of theconfessional statement of A-1. The admissible part of theconfessional statement of A-5 is Ex.P31. A knife was recovered fromA-5 under Ex.P32 mahazar. A stick was recovered from A-1 underEx.P30 mahazar. They were sent for judicial remand. (e) P.W.24, the Investigating Officer, received a deathintimation at 9.15 A.M. on 19.11.2004. Then, the case was altered toSec.302 of IPC, and the altered FIR, Ex.P47, was sent to the Court.He conducted inquest on the dead body in the presence of witnessesand panchayatdars and prepared an inquest report, Ex.P48. Then hegave a requisition, Ex.P11, to the hospital authorities for thepurpose of autopsy.(f) P.W.10, the Civil/Assistant Surgeon, attached to theGovernment Vellore Medical College Hospital, on receipt of the saidrequisition, conducted autopsy on the dead body of Subramani and hasissued a postmortem certificate, Ex.P17. He has opined that thedeceased would appear to have died of post head injury sequelae 24 to30 hours prior to autopsy.(g) After the investigation was over, the case in CrimeNo.1284/2004 was referred to as mistake of fact, while theInvestigating Officer filed the final report in Crime No.1283/2004 oncompletion of investigation.4.The case was committed to Court of Sessions, and necessarycharges were framed. The accused went on trial before the trialCourt. In order to substantiate the charges levelled against theaccused/appellants and the other two accused, the prosecutionexamined 24 witnesses and also relied on 48 exhibits and 9 materialobjects. 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 the https://hcservices.ecourts.gov.in/hcservices/ prosecution witnesses which they flatly denied as false. No defencewitness was examined. The trial Court heard the arguments advancedand took the view that the prosecution has proved the case beyondreasonable doubt, and hence found them guilty and awarded thepunishment referred to above. Hence this appeal at the instance ofthe appellants.5.Advancing arguments on behalf of the appellants, the learnedSenior Counsel Mr.V.Gopinath would submit that according to theprosecution, the occurrence has taken place on 11.11.2004 at about10.30 A.M.; that it is true that the prosecution has examined 24witnesses out of whom P.Ws.1 to 4 are shown not only as occurrencewitnesses, but also as injured witnesses; that P.Ws.6 and 14 areshown as occurrence witnesses; that as far as P.Ws.6 and 14 areconcerned, their names are not found in the FIR, and hence, nocredence could be given to their evidence; that the trial Court wasnot made to understand even the genesis of the occurrence in theinstant case; but, it has taken an erroneous view; that admittedly,the case came to be registered by P.W.23, at the instance of thecomplaint given by P.W.1 at the hospital at about 1.00 P.M. on11.11.2004 when he was actually under treatment; that the case cameto be registered at 2.30 P.M. under Sec.307 of IPC and otherprovisions of the Code against the accused; that it is admitted byP.W.23, the Sub Inspector of Police, that A-5 appeared before thepolice station, and gave a complaint, on the strength of which a casecame to be registered on the very day at about 2.30 P.M. and A-1 andA-5 who were found with injuries, were sent to the hospital fortreatment along with the medical memo; and that it is categoricallyadmitted by P.W.23 that at the earliest, the case was registeredunder Sec.307 of IPC and other provisions, and on the death of thedeceased, it was converted to Sec.302 of IPC on 18.11.2004.6.The learned Senior Counsel would add that in the instant case,though a case was registered under Sec.307 IPC on the date ofoccurrence itself at about 2.30 P.M., the FIR has reached the Courtthe next day that was on 12.11.2004 at about 7.00 P.M.; that therewas a delay of 30 hours; but, the prosecution has no explanation tooffer; that P.W.23 came forward with the evidence to state that theyactually despatched the FIR to the Court within a few hours; but, noexplanation was found; that apart from that, the Constable who tookthe FIR to the Court, was not all examined; that P.W.23 has deposedthat the Court is situated in Arcot within 1 kilometer from thepolice station; that under the circumstances, the said delay was veryfatal to the prosecution; and that there was all possibility formaking embellishments and also improvements in the case. 7.Added further the learned Senior Counsel that admittedly, A-1and A-5 sustained injuries; that they were actually given treatmentby P.W.22, the Doctor, and the accident register copies, Exs.P41 andP40 respectively, have been marked; that all the witnesses have notgiven any explanation at all; that it was P.W.6 who made a feebleattempt to give some explanation; but, P.W.6 as stated above, couldnot have been an eyewitness at all, and hence it was a vainfulattempt made by the prosecution. 8.Added further the learned Senior Counsel that in the instant https://hcservices.ecourts.gov.in/hcservices/ case, though the Investigator has stated that the case in CrimeNo.1284/2004 registered at the instance of A-5 was referred to asmistake of fact, neither the statements alleged to have been recordedfrom the witnesses nor the final report was filed at all; that theearliest documents in the case are the accident register copies ofP.Ws.1 to 4 marked as Exs.P35 to P38 respectively; that a perusal ofall these documents would clearly indicate that about 17 persons wereactually involved in the crime; but, the prosecution had noexplanation; that all these would go to show that the prosecution wasunable to bring forth the genesis of the occurrence or explain thedelay or the injuries sustained by A-1 and A-5; that apart from allthe above, all the documents pertaining to Crime No.1284/2004, wereactually not marked before the trial Court; that under thecircumstances, it would be indicative of the fact that theprosecution has miserably failed to prove its case, and hence theyare entitled for acquittal in the hands of this Court.9.The Court heard the learned Additional Public Prosecutor on allthe above contentions and paid its anxious consideration on thesubmissions made. 10.It is not in controversy that one Subramani, the father ofP.W.2 and others, who sustained injuries following an incident, wastaken to Arcot Government Hospital, where he was given treatment.Following the same, he was given further treatment at the CMCHospital, Vellore, and died on 18.11.2004. Originally, the case wasregistered under Sec.307 IPC in Crime No.1283/2004, and subsequentlyit was altered to Sec.302 IPC on the death of Subramani. Followingthe inquest made by the Investigator, the dead body was subjected topostmortem by P.W.10, the Doctor, who has given his categoricalopinion that he died out of post head injury. Apart from this, asregards the fact that Subramani died as a direct consequence of theinjuries sustained by him, no suggestions or not even questions wereput in the cross-examination to the witnesses. Under thecircumstances, without any impediment it could be recorded so. 11.It is true that in the instant case, the prosecution in orderto substantiate the charges levelled against the appellants and twoothers shown as A-8 and A-9, marched six witnesses who are P.Ws.1 to4, 6 and 14. Out of these witnesses, who claimed to be eyewitnesses,P.Ws.1 to 4 have been shown not only as occurrence witnesses, butalso as injured witnesses. It is also true that the accidentregister copies are also marked as Exs.P35 to P38 respectively.These documents when looked into, would clearly indicate that theyhave come into existence at the earliest even before P.W.23, the SubInspector of Police, recorded Ex.P1 from P.W.1 at Arcot GovernmentHospital. A perusal of these documents would clearly show thataccording to all the witnesses, nearly about 17 persons wereinvolved, and they were the assailants in the occurrence. But, theprosecution had no explanation to offer. Even the witnesses have notdeposed in respect of 17 persons at the time of the trial. Further,as rightly pointed out by the learned Senior Counsel for theappellants, the names of P.Ws.6 and 14 do not find place in the FIR,and hence no credence could be attached to their evidence. It is notthat this Court is unmindful of the caution made by the settledprinciples of law that in a given case like this, when the occurrence https://hcservices.ecourts.gov.in/hcservices/ witnesses happened to be injured witnesses, the Court should notdiscard their testimony unless and until a strong circumstance isnoticed or reason is brought about. But, in the instant case, thoughthe prosecution rested its case on the direct evidence by marchingP.Ws.1 to 4 as injured witnesses, no credence could be attached tothe same in the considered opinion of the Court. 12.It is true that the occurrence has taken place; but, a duty iscast upon the prosecution to bring to the notice of the Court thegenesis of the occurrence. Admittedly, a case came to be registeredby P.W.23 at the instance of P.W.1 under Ex.P1 at about 2.00 P.M. Hehas categorically admitted that a case was registered at the instanceof the complaint by A-5 at about 2.30 P.M., and the complaint ismarked as Ex.P43. The FIR in that case is marked as Ex.P44. It ispertinent to point out that the investigation in both the cases,according to the Investigating Officer, was taken up together. It isadmitted that A-1 and A-5 were actually injured in the sametransaction, and they have also been taken to the hospital with themedical memo. As far as A-1 is concerned, the accident register copyis Ex.P41, and Ex.P40 is for A-5. It is true that the injuries aresimple; but, the witnesses have not come forward to explain theinjuries. It is to be pointed out that in all the cases, theinjuries sustained by the accused need not be explained, but in agiven case like this, where a case came to be registered by the samerespondent police in respect of the injuries sustained by theaccused, the investigation agency is duty bound to place before thetrial Court all the factual position enabling the Court thereby tounderstand the case. In the instant case, admittedly, two of theaccused were injured and were actually taken to the hospital. Theywere given treatment, and a case came to be registered by the samepolice in Crime No.1284/2004, and if to be so, all the materialrecords should have been placed before the Court. In the case onhand, except the FIR, no other documents namely the statementsalleged to have been recorded from the witnesses and the finalreport, have been filed enabling the Court to understand the case. 13.It is further to be pointed out that there is inordinate andinexcusable delay noticed. The case was registered at about 2.00 P.M.on 11.11.2004. But, the FIR has reached the Court at 7.00 P.M. on12.11.2004, and thus there was 30 hours delay. According to P.W.23,the Sub Inspector of Police, the Judicial Magistrate's Court issituated within one kilometer from the police station. Evenaccording to him, it would suffice to take the FIR within half anhour. But, it has been taken to the Court in a case of attempt tomurder, after 30 hours. No explanation was tendered before the trialCourt. Not even the Constable who took the FIR was examined. Thiswould be indicative of the fact that all embellishments andimprovements could have been done. Under the circumstances, thedelay, in the considered opinion of the Court, was fatal to theprosecution case. Hence it can be well stated that the prosecutionhas miserably failed to place all materials necessary as to thegenesis of the case enabling the Court to understand the origin andalso the case. This coupled with the delay and the non-explanationof the injuries sustained by those accused would go to show that theappellants should be given the benefit of doubt, and they areentitled for acquittal. https://hcservices.ecourts.gov.in/hcservices/

14.In the result, this criminal appeal is allowed setting asidethe judgment of conviction and sentence passed by the lower Court.The appellants are acquitted of the charges levelled against them.A-1 and A-2 are directed to be released forthwith unless theirpresence is required in any other case. The fine amounts paid by theappellants will be refunded to them. The bail bonds executed by A-3to A-7, shall stand terminated.Sd/Asst.Registrar/true copy/Sub Asst.Registrarnsv/To:1.The Additional District and Sessions Judge Fast Track Court No.II Ranipet.2.-Do-Thro the Principal District Sessions Judge, Vellore.3.The Superintendent, Central Prison, Vellore.4.The Judicial Magistrate, Arcot,Vellore District.5.-Do-Thro the Chief Judicial Magistrate,Vellore6.The Inspector of police Arcot Town Police Station.7.The Public Prosecutor, High Court, Madras.8.The Superintendent , Special Prison for Women Vellore.2 CC To Mr.L.Mahendran, Advocate, SR NO.1132 CRL.A.No.91 of 2008SSR(CO)PMK/5.2.2009.