Murugasamy v. State

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 29.02.2012CORAMTHE HONOURABLE MR. JUSTICE S.PALANIVELUCRL.A.No.665 OF 2006Murugasamy.. Appellant / AccusedVsState rep. by The Inspector of Police,Tirupur Rural Police Station,Coimbatore District.Mangalam Police Station[Crime No.42/2005] .. Respondent / Complainant Appeal filed under section 374 Cr.P.C., against the Judgment ofthe learned Additional District & Sessions Judge, Fast Track CourtNo.IV Coimbatore in S.C.No.22 of 2006 dated 20.07.2006. For Appellant: Mr.P.M.DuraiswamyFor Respondent: Mr.C.Balasubramanian Addl.Public Prosecutor.JUDGMENT Accused is the appellant in this appeal. The appellant hascome forward with this appeal challenging the judgment dated20.07.2006 by the learned Additional District & Sessions Judge,Fast Track Court No.IV, Coimbatore made in S.C.No.22 of 2006convicting the appellant for the offence under section 326 IPCsentencing to undergo rigorous imprisonment of two years and to pay afine of Rs.5000/- in default to undergo six months rigorousimprisonment. The sentence was also suspended and the appellant wasreleased on bail, pending disposal of the appeal, on executing a bondfor a sum of Rs.5,000/- with two sureties each for a like sum to thesatisfaction of the learned Judicial Magistrate No.2, Tirupur and onfurther condition that the petitioner shall appear before the trialcourt on the first working day of every month at 10.30 a.m. till thedisposal of the appeal.2. The following is the brief account of the prosecution casesans unnecessary details - https://hcservices.ecourts.gov.in/hcservices/ 2[a] PW1 is the son of PW2 who is injured in this case. Helodged complaint, Ex.P1 with the respondent police station on12.01.2005 at 8.30 p.m. In the complaint, he had stated that on12.01.2005, at about 2.00 p.m. while he was going alongwith hismother to take the cattle from the fields, one cow entered into thefield of the accused and on seeing it, the accused got irritated andby means of aruval by saying "fz;lunahHp ,j;njhL brj;J bjuiy"attempted to cut on the head of his mother and when she warded off bymeans of her left hand, she sustained cut injuries in her left palmand he again made a cut injury below her left chest and again he alsocut on the left arm. On seeing it, Subramani, Durai and Mangathalcame and raised alarm and on seeing them, accused fled away from thescene with aruval. PW1 removed the injured in a car and took her toPalladam Government Hospital where she was given treatment andthereafter she was referred to Coimbatore CMC Hospital for furthermanagement. She was admitted to PSG Hospital, Coimbatore.2[b] On receipt of the intimation, PW6, Sub-Inspector of Policeproceeded to the PSG Hospital, Coimbatore and since PW2 was in theoperation theatre, he recorded the statement from PW1 at 6.30 p.m.,came to the police station and registered the case at 8.30 p.m. undersections 324 and 307 IPC. He lodged FIR, Ex.P8 and sent the same tothe Court and copy to the Inspector of Police for investigation.2[c] PW2 was examined by the doctor, PW5 who issued Ex.P7,accident register. He has found the following external injuries onPW2 :[1] Laceration over the palmar aspect ofthe left hand 6 x 3 cms. with tendons and bone exposed.[2] Sutured laceration – 5 cms. over the laceral aspects – upper 1/3 of left arm.[3] Sutured laceration over left breast[4] Swelling in the left wrist.2[d] PW7, Inspector of Police, after getting the FIR,proceeded to the scene of crime at 9.30 p.m., prepared observationmahazar Ex.P2 and drew rough sketch, Ex.P9. He lifted the bloodstained earth and sample earth, MOs5 and 6 under cover of mahazar.On 13.01.2005, at 8.00 a.m., he recorded statement of PW2 in PSGHospital. He also seized MOs 2 to 4, her saree, jacket and inskirtunder cover of mahazar. On 17.01.2005, at about 1.00 p.m., hearrested the accused along Mangalam - Palladam road in Poomaloordiversion and recorded confession statement from him in the presenceof witnesses. Ex.P5 is the admissible portion in the confession https://hcservices.ecourts.gov.in/hcservices/ statement, in pursuance of which the accused took the police andabove said witnesses to his field and produced a sickle with a lengthof 42 cms. which was seized under cover of mahazar, Ex.P6. Afterexamination of the other witnesses and doctor and on completion ofinvestigation, he laid charge sheet against the accused.3. After the prosecution evidence was over, the trial courtquestioned the appellant/accused u/s.313 Cr.P.C. as regardsincriminating materials available against them in the prosecutionevidence. He denied the complicity to the offence. He did notexamine any witness nor had he marked any documents.4. After analysing the evidence and materials on record, thelearned Additional District & Sessions Judge, Fast Track Court No.IV,Coimbatore sentenced the appellant as stated above. Challenging thejudgment of conviction, the appellant is before this Court.5. The point for consideration is, "whether the prosecution hasestablished the charges framed against the appellant/accused beyondall reasonable doubt?".Point:- The learned counsel for the appellant Mr.P.M.Duraiswamy wouldstrenuously contend that the remarkable improbabilities available inthis case and the contradictions found in the evidence of prosecutionwitnesses would show that there was none in the scene of crimeexcepting PW1 and PW3 who could not have seen the occurrence and thatthe medical evidence in this case does not support the prosecutionversion which also does not corroborate the evidence of PW1 and hencethe charge of section 326 against the appellant has not beenestablished by the prosecution beyond reasonable doubt.6. The learned Additional Public Prosecutor submits that theevidence of PWs 1 to 3 are cogent and convincing which indicate thatthe occurrence has taken place as projected by the prosecution, thatthere is nothing abnormal in the medical evidence and that no validground is made out to disturb the findings of the Court below. 7. The most disturbing feature in this case is the medicalevidence on record with regard to the nature of injuries as stated bythe doctor. It is the definite version of PW2 that the injuries werecaused by sickle which is a sharp edged weapon and only cut injurywould have been caused by the sharp edged weapon when it is used byany person as stated by PW2. But the doctor PW5 states that the 2ndand 3rd injuries are lacerated injuries. He found the 2nd and 3rdinjuries sutured and it is his opinion that PW2 would have receivedtreatment earlier to the treatment given in PSG Hospital. It is https://hcservices.ecourts.gov.in/hcservices/ stated in the complaint that PW1 was first given treatment inPalladam Government Hospital but the investigating officer had notobtained the accident register from Palladam Government Hospital fromwhich the genesis of the occurrence and the nature of injuries 2 and3 could have been ascertained. 8. The next point in this situation is that when all theinjuries are stated to have been caused at the same time, why theinjuries 2 and 3 alone were given treatment by suturing it. Had thefirst injury been present at the time of giving treatment to injuries2 and 3, injury no.1 should also have been treated properly and thefirst injury has been left as such without any treatment. It causesserious doubt on the version of PW2 with regard to her sustaining ofinjuries. If the injuries 2 and 3 have been sutured, it is not knownhow the doctor could opine that they are lacerated injuries.Further, when he has reference to injury no.1, in his evidence, hesays that it is a cut injury while has has recorded that it is alaceration.9. In Ex.P7, wound certificate, the doctor has recorded that theinjuries were caused due to assault by using sickle but when he wasexamined by the investigating officer under section 161 Cr.P.C., hehas stated that he was informed that PW2 was assaulted by stick. 10. The presence of PWs2 and 3 in the scene of crime has beenimprobabilised by the evidence of PW2 herself. In her crossexamination, she says that her younger son does not know about theoccurrence, that he came to the scene of crime at later point of timeand before he reached the scene of occurrence, the accused left theplace after cutting her and that when she was assaulted, nobody wasavailable in the place. This part of oral evidence from PW2 wouldshow that she was alone present in the scene of occurrence and nobodyelse much less PWs1 and 3 were present in the occurrence place. Inthis context, reliance could not be placed upon the testimonies ofPWs1 and 3. Further, FIR was lodged at 8.30 p.m., thereafter theinvestigating officer proceeded with the investigation, but PW3 saysthat he was examined by the police at 4.00 p.m. on the date ofoccurrence. It also raises doubt.11. In view of the above said circumstances, this Court is ofthe considered opinion that the prosecution theory is far fromreliance. The evidence on record do not show that the appellant isthe real actor of the crime. There is no clinching materialsavailable to show nexus between the appellant and the crime. Themedical evidence in this case has no effect to lend support to thewords of PW2. Hence, the charge under section 326 IPC remainsunproved. The appellant is entitled to get the benefit of doubt.The judgment of conviction and sentence passed by the court below isliable to be set aside and it is accordingly set aside. I answerthis point accordingly. https://hcservices.ecourts.gov.in/hcservices/

12. In the result, the Criminal Appeal is allowed acquittingthe appellant of the charges framed against him under section 326IPC. The bail bonds, if any, executed by the appellant shall standdischarged and the fine amount, if any, paid by the appellant shallbe refunded to him. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar.rgrTo1.The Additional District & Sessions Judge, Fast Track Court No.IV, Coimbatore.2. The Inspector of Police, Tirupur Rural Police Station, Coimbatore District. Mangalam Police Station3.The Public Prosecutor High Court, Chennai.4. The Judicial Magistrate No.IITirupur5. Do thro the Chief Judicial MagistrateCoimbatore6. The Principal Sessions JudgeCoimbatore1 cc to Mr.P.M. Duraisamy, Advocate, Sr. 14148Crl.A.No.665 of 2006PA (CO)kk 11/5