Eswaran v. State

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 20.3.2009CORAMTHE HONOURABLE MR. JUSTICE C.NAGAPPANAND THE HONOURABLE MR. JUSTICE T.SUDANTHIRAMCrl.A.No. 870 of 20071. Eswaran2. Selamban.. Appellants/Accused 1 & 2Vs.StateRep. by the Inspector of Police,Uthukuli Police StationCrime No.113 of 2006Erode district... Respondent/ComplainantPrayer : Appeal against the Judgment, dated 19.4.2007, passed inS.C.No. 195 of 2006 on the file of the Additional District andSessions Judge, (Fast Track Court No.I) Erode.For Appellants:: Mr. A.K.KumarasamyFor Respondent :: Mr. P.Kumaresan, Additional Public ProsecutorJ U D G M E N T (Judgment of the Court was rendered by T.SUDANTHIRAM, J.)The appellants, who are A.1 and A.2 in Sessions Case No. 195of 2006 on the file of the Additional District and Sessions Judge[Fast Track Court No.I], Erode, stand convicted for the offencesunder Sections 449, 302 r/w 34 and 506(ii) IPC and sentenced toundergo ten years Rigorous Imprisonment for the offence under Section449 IPC; life imprisonment for the offence under Section 302 r/w 34 https://hcservices.ecourts.gov.in/hcservices/ IPC; and two years Rigorous Imprisonment for the offence underSection 506(ii) IPC and the sentences were ordered to runconcurrently. Aggrieved by the said conviction and sentence, theaccused have preferred the present appeal. 2. The case of the prosecution is that deceased Murugan isthe brother of P.W.1 Kali. A.1 Easwaran and one Mani are the sonsof A.2 Selamban. Mani used to talk with the wife of deceasedMurugan. As such there was frequent quarrel between deceasedMurugan and Mani. On the date of occurrence, i.e. on 28.5.2006,at about 7.00 p.m., when deceased Murugan was in the house of P.W.1Kali, A.1 Easwaran and A.2 Selamban came there and dragged deceasedMurugan and took him near Perumal temple. A.1 Easwaran attackeddeceased Murugan with wooden cot leg on his hands and A.2 Selambanattacked deceased Murugan using the wooden cot leg on his head.Thereafter, A.1 Easwaran and A.2 Selamban ran away from the sceneof occurrence. This occurrence was witnessed by P.W.2 Ponnusamy, whois the brother-in-law of P.W.1 Kali, and also by P.W.3Semalaigounder. P.W.1 Kali and P.W.2 Ponnusamy covered the woundedplace of injured Murugan using cloth. On the next day morning, i.e.29.5.2006, deceased Murugan was taken to Tiruppur GovernmentHospital. P.W.6 Dr. Senthil had seen deceased Murugan and also notedthe following injuries (1) Cut injury scalp left occipital region,size 5 x 1 cms.; (2) Cut injury scalp left parietal region 4 x 1cms.; (3) Fracture right humerus with multiple abrasion 1 x 1 cm.;and (4) compound fracture left humerus with multiple lacerationinjury, size 5 x 4 cms and 6 x 4 cms. Ex.P4 is Accident RegisterExtract. As injuries were serious, he advised to take injuredMurugan to Coimbatore Medical College Hospital. Injured Murugan wasalso taken to Coimbatore Medical College Hospital on 29.5.2006 at2.53 p.m. In the meantime, P.W.10 Sub-Inspector of Policeof Uthukkuli Police Station, on receiving the intimation from theOut-Post Police Station of Tiruppur Government Hospital,went to Tiruppur Government Hospital and as he cameto know that the patient had already been sent to Coimbatore MedicalCollege, Hospital, he reached there on 29.5.2006 at 8.30 p.m.As Murugan was unconscious and not in a position to speak, he couldnot get any statement from him. On 30.5.2006, at 5.30 a.m., herecorded the statement from P.W.1 Kali and came back to the PoliceStation and registered a case at 8.00 a.m. in Crime No.313/06 underSections 452, 324, 506(2) IPC. Ex.P14 is the First InformationReport. Later, he went to the scene of occurrence and prepared Ex.P2Observation mahazar, drew Ex.P15 Rough Sketch and recovered M.O.3 https://hcservices.ecourts.gov.in/hcservices/ wooden cot leg under Ex.P3 and on the same day, at 12.15 p.m., hearrested both the accused near Sadayampathi bus stop and sent themfor remand at about 2.00 p.m. and at about 4.00 p.m., he recoveredM.Os.1 and 2 shirt and dhoti respectively, of the deceased from oneP.W.2 Ponnusamy, under Form 95, which is Ex.P16. Injured Mohan, whowas in the hospital, died on 13.6.2006 at 1.00 a.m. and Ex.P12 is theDeath Intimation. P.W.9 Sub-Inspector of Police, onreceiving the death intimation, altered the offence to one underSection 302 IPC and prepared Ex.P13 Express First Information Report.P.W.11 Inspector Raju, on receiving copy of the Express Report,went to Coimbatore Medical College Hospital and conducted inquest andexamined P.Ws.1 to 3 and others. Ex.P17 is the Inquest Report. Atabout 4.00 p.m., he sent the requisition through Head Constable forconducting post-mortem on the body of the deceased.P.W.7 Dr.Menaka Sekar, on receiving Ex.P5 Requisition,conducted Autopsy at 4.05 p.m. and found the following -"Injuries:(1) Deformity present over right lower arm, ondissection there is fracture of humerus at thejunction of upper 2/3 and lower 1/3 surrounded bydirty thick brown coloured fluid of about 200 ml, witha butterfly segment. There was no evidence offracture healing.(2) 10 x 8 cm open wound present over the front of theleft lower arm, exposing the muscles and upper end ofthe lower fragment of the fractured humerus, which isjutting out the fracture level being upper 3/4 andlower 1/4 : the fracture ends and the wound showevidence of infection.(3) Bedsore measuring 6 cm x 4 cm, each present overthe occipital and sacral regions.(4) Both the lungs are adherent to chest wall.(5) There is 10 cm healed sutured wound present overthe left parietal region.(6) There is a 2 cm x 2 cm healed wound over the backof right parietal region.(7) The gall bladder is enlarged and contains 150 ml.Of thick bile with sludge.(8) Sub arachnoid haemorrhage seen over the surfacesof both the parietal regions of the cerebralhemispheres.Other findings:Pleural and peritoneal cavities: Empty. https://hcservices.ecourts.gov.in/hcservices/ Lungs cut section congested.Heart: Right side chambers contains fluid blood. Left side chambers empty, coronaries patent. Hyoidbone intact.Stomach contains 70 ml. brown coloured fluid, no specificsmell, mucosa congested.Small intestine: contains 30 ml. of bile stained fluid, no specific smell, mucosa a congestedLiver, spleen and kidneys: cut section congested. Urinarybladder empty. Skull intact.Brain congested." He gave opinion that the deceased would appear to have died ofMULTIPLE INJURIES & THEIR COMPLICATIONS. He issued Ex.P6 Post-mortem Certificate. As P.W.11 Inspector Raju was transferred, P.W.12 InspectorRamasamy continued the investigation and examined the witnesses.Ex.P9 is the Chemical Analyst's Report and Exs.P9 and P10 are theSerologist's Reports and on completion of the investigation, P.W.11filed the final Report on 25.7.2006. 3. To prove the case, the prosecution examined P.Ws.1 to12; marked Exs.P.1 to P.17 and produced M.Os.1. to 3. 4. The accused were examined under Section 313 CrPC and theydenied their complicity. No witness was examined and no document wasmarked on the side of the defence.5. The trial Court found the accused guilty of the offencesunder Sections 449, 302 r/w. 34 and 506 (2) IPC and sentenced them asstated as above. 6. Mr.A.K.Kumarasamy, learned counsel for the appellants/accusedNos.1 and 2, submits that the eye-witnesses, namely, P.Ws. 1 to 3,could not have been present at the scene of occurrence and theirconduct is very unnatural and though the occurrence is said to havetaken place on 28.5.2006 at 7 pm, the victim-Murugan was taken tohospital only on the next day morning. The learned counsel furthersubmits that if P.W.1-Kali, who is the brother of the deceased-Murugan, had informed to P.W.6-Dr.Senthil that three known personsattacked deceased Murugan with unknown weapons, but the presentprosecution case is that only two persons attacked deceased Muruganand there is no explanation from the prosecution with regardto this vital contradictory factor. The learned counsel furtherpoints out that there was enormous delay of 36 hours in preferring https://hcservices.ecourts.gov.in/hcservices/ the complaint. He further submits that even though the place ofoccurrence is said to be near the Perumal temple and it is alleged bythe prosecution that the victim-Murugan was taken from thehouse of P.W.1-Kali, admittedly the deceased-Murugan wasliving with his mother in a separate house and the house of thedeceased was shown in Ex.P15-Rough Sketch, but the house of P.W.1was not shown and it is somewhere else and therefore the versionof the prosecution case that Murugan was forcibly taken from thehouse of P.W.1, is suffering from infirmity. 7. Per contra, the learned Additional Public ProsecutorMr.Kumaresan submits that the delay in preferring the complaint hasbeen properly explained by the prosecution. He also submits thatthough the occurrence had taken place at 7 pm on 28.5.2006, as novehicle was available, the victim-Murugan could not be taken to thehospital immediately and only on the next day morning, he was takento Tirupur Government Hospital and on intimation from the TirupurGovernment Hospital Outpost Police Station, Sub Inspector of Police,Uttukuli Police Station went to Tirupur Government Hospital and as hereceived information that the victim-Murugan was taken to CoimbatoreMedical College Hospital from there, he had gone to CoimbatoreMedical College Hospital, and received the complaint from P.W.1-Kali.The learned Additional Public Prosecutor further submits that P.W.3-Semalai Gounder, who is an eye-witness in the case, is an independentwitness and there was no reason for him to depose falsely againstthe accused. 8. This Court considered the submissions made by both sidesand perused all the records, with deep consideration. 9. P.Ws.1 to 3 are eye-witnesses to the occurrence and amongthem, P.Ws.1 and 2 are related to the deceased. Though theoccurrence is said to have taken place on 28.5.2006 at 7 pm and thevictim-Murugan had sustained serious injuries on both the hands, noattempt was made by anyone immediately to take Murugan to thehospital. Though it is stated that no bus facility was available,no attempt was made by the witnesses to take the victim-Murugan byany private vehicle, during the cross-examination, P.W.1-Kali hadstated that the victim-Murugan after sustaining injuries, waslying at the scene of occurrence itself throughout the night.P.W.2-Ponnusamy had stated in the cross-examination that the victimMurugan was taken to the house of P.W.1-Kali and throughout thenight, Murugan was made to lie in front of the house of P.W.1.P.W.3-Semalai Gounder, in the chief-examination, has stated that thevictim-Murugan was kept at the scene of occurrence throughout thenight. The evidence of P.Ws.1 to 3 on this aspect creates a doubtwith regard to their presence at the time of occurrence. If P.Ws.1to 3 had been present at the time of occurrence, immediately theywould have taken some steps to take the victim-Murugan to thehospital, who sustained serious injuries on his hands. Even https://hcservices.ecourts.gov.in/hcservices/ according to P.W.1-Kali, TVS-50 vehicle was available in the villageand that they are also owning two-wheeler. The answers given byP.Ws.1 to 3 for not taking the victim-Murugan to the hospitalimmediately are not convincing and that injured Murugan waslying at the scene of occurrence throughout the night leads to apossible conclusion that the victim-Murugan was seen by them only onthe next day early morning. 10. P.W.6-Dr.Senthil of Tirupur Government Hospital was informedby P.W.1-Kali that the victim-Murugan was attacked by three knownpersons with unknown weapons. These particulars are also mentionedin Ex.P4-Accident Register extract that the victim was attacked bythree known persons by unknown weapons near Salapalayam. Thepresent case of the prosecution, as per the evidence of P.Ws.1 to 3is that only two persons viz., accused Nos.1 and 2, have taken partin the occurrence and they attacked the victim-Murugan with M.O.3-Wooden Cot log. The prosecution is not in a position to explain asto why P.W.1-Kali had given such information to P.W.6-Dr.Senthil,which is the earliest narration available about the occurrence.Apart from that, though it is the case of the prosecution that onlyM.O.3-Wooden Cot log was used as a weapon in this case for causingthe injuries sustained by the deceased-Murugan, according to P.W.6-Dr.Senthil, the injury on the head, mentioned as injury Nos.1 and 2could have been caused by sharp-edged weapon. P.W.6-Dr.Senthil had further mentioned in his evidence that the total fourinjuries could have been caused by two different weapons. Though thevictim-Murugan was treated for a period of 17 days as in-patient inCoimbatore Medical College Hospital, the prosecution has not examinedthe Doctor who gave treatment to Murugan and not produced themedical records from the said hospital. The prosecution has notelicited any opinion from P.W.7-Dr.Menaka Sekar as to whether theinjuries on the head of the deceased could have been caused by M.O.3-Wooden cot log. In the abovesaid circumstances, it is not possibleto hold that M.O.3-Wooden cot log alone could have been used tocause all the injuries sustained by the deceased-Murugan, as spokento by the eye-witnesses viz., P.Ws.1 to 3. 11. The Police Station is only at a distance of 5 kilometersfrom the place of occurrence. None of the persons who had witnessedthe occurrence had gone to the Police Station after the occurrenceand only after getting intimation from the Tirupur GovernmentHospital Outpost Police Station, the Sub Inspector of Police,Uttukuli Police Station had gone to Tirupur Government Hospital.Though P.W.10-Sub Inspector Rajaravithangam had gone to TirupurGovernment Hospital on being informed that victim-Muruganwas taken to Coimbatore Medical College Hospital, he went there andhaving reached the hospital at 8.30 pm on 29.5.2006, he had receivedthe complaint from P.W.1-Kali, the brother of deceased, only on thenext day morning at 5.30 am. Though the deceased was in unconsciousstage, P.W.10-Sub Inspector Rajaravithangam could have obtained the https://hcservices.ecourts.gov.in/hcservices/ complaint from P.W.1-Kali even at 8.30 pm on 29.5.2006 when hereached the hospital. The victim-Murugan was admitted in theCoimbatore Medical College Hospital at 2.53 pm on 29.5.2006 andaccording to P.W.1-Kali, the Police had come to the hospital withintwo hours from the time of admission of the deceased in the hospital.These aspects throw considerable doubt with regard to the manner inwhich the First Information Report was prepared. As already seen,there was a delay of 36 hours in preparing the First InformationReport and in the said circumstances, the First Information Reportitself is doubtful.12. Even though P.W.3 is claimed to be an independent eye-witness by the prosecution, it is not possible for this Court toaccept his evidence in view of other reasons given above in thiscase. He is only a chance witness. P.Ws.1 and 2 are coolie workersin his field. Further it is not always possible to say why awitness deposes falsely against the accused.13. For the abovesaid reasons, we hold that the prosecutionhas not established its case beyond all reasonable doubt against theaccused Nos.1 and 2. 14. In the result, the appeal is allowed, setting aside theconviction and sentence imposed on the appellants/accused Nos.1 and 2and they are acquitted of all the charges. The appellants/accusedNos.1 and 2 are directed to be released forthwith, unless they arerequired in connection with any other case.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarPb/vksTo 1.The Addl. District and Sessions Judge (Fast Track Court No.I),Erode.2. -do- the Principal District Judge, Erode.3. The Inspector of Police, Uthukuli Police Station,Erode District.4.The Superintendent of Central Prison, Coimbatore. https://hcservices.ecourts.gov.in/hcservices/

5.The Public Prosecutor, High Court, Madras.6.The District Munsif cum Judicial Magistrate, Perundurai7.-Do- thro the Chief Judicial Magistrate, Erode.8.The District Collector,Erode District, Erode.9.The Director General of Police, Mylapore, Chennai-4.1 CC To Mr.A.K.Kumarasamy, Advocate, SR NO.8676CRL. APPEAL NO.870 OF 2007kg(co)pmk/26.3.2009.