Bail SlipThe v. State

Bail SlipThe Appellants 1 and 2 herein (viz) 1.Paramasivam(A1), 2.Elumalai (A2),Accused in SC.No.159/99, on the file of the Court of the VI AdditionalSessions Judge, Chennai were directed to be released on bail as per orderof this Court dated 22.5.2001 and passed in Crl.Mp.No.2815/2001.IN THE HIGH COURT OF JUDICATURE AT MADRASDATE : 05.04.2007CORAM:THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYANCrl.A.No.427 of 20011.Paramasivam2.Elumalai ..Appellant/Accusedvs.State by:The Inspector of Police,G-3, Kilpauk Police Station,Chennai. ..Respondent/ComplainantPrayer: This Appeal has been preferred under Section 374 of Cr.P.C.,against the judgment dated 20.4.2001 made in S.C.No.159 of 1999 on thefile of the VI Additional Sessions Judge, Chennai.For Appellant : Mr.R.RajesekaranFor Respondent : Mr.R.Muniyappa Raj, Govt Advocate (Crl.Side)ORDER This appeal has been preferred against the judgment in S.C.No.159of 1999 on the file of the VI Additional Sessions Judge, Chennai.2. The short facts of the prosecution case relevant for the purposeof deciding this appeal are as follows:-On 11.08.1998 at about 6.30 pm when the deceased Elumalai was takinghis supper, A2 when questioned the deceased Elumalai about the raising ofhis voice, the deceased Elumalai had assaulted A2 with a stick and on https://hcservices.ecourts.gov.in/hcservices/ seeing this A1 intervened to save his brother A2 from the assault of thedeceased Elumalai, the deceased Elumalai had assaulted A1 on his head withstick and in retaliation A1 had assaulted the deceased Elumalai with thestick on the head which resulted in the death of Elumalai in the hospitalon the next day. Hence, A1 has been charged under Section 302 IPC and A2has been charged under Section 302 r/w 109 IPC.3. The case was taken on file by the learned II MetropolitanMagistrate in PRC.No.9759 of 1998 and on appearance of the accused onsummons, copies under Section 207 of Cr.P.C., were furnished to theaccused 1 and 2 and since the case is triable by a Court of Sessions, thelearned Magistrate has committed the case to the Court of Sessions underSection 209 of Cr.P.C. The learned Sessions judge had framed chargesunder Section 302 IPC against A1 and the charges under Section 302 r/w 109IPC against A2 and when questioned the accused pleaded not guilty.4. On the side of the prosecution P.W.1 to P.W.13 were examined andEx.P.1 to Ex.P.15 were exhibited and M.O.1 to M.O.7 were marked.5. P.W.1 to P.W.4 are the eye witnesses. P.W.1 would depose that hebelongs to Thazhkuppam Village and on 27.7.1998 contractor Rajamanikamhad brought him along with Elumalai, Sriraman, Sivalingam, Veerappan,Govindarajan and Krishnan for building construction work, which was inprogress at Door No.142, E.Ve.R.Road, Kilpauk and that they were residingin the same building and attending to the construction work along with A1& A2. On 11.8.1998 there was no work for them, hence at about 4.00 pmthey went to beach and returned at about 6.30 pm and at that time he(P.W.1), Govindarajan and the deceased Elumalai were taking their supperand another Elumalai S/o.Perumal Gounder raised a hue and cry and at thattime the deceased Elumalai questioned A2-Elumalai by saying that he ismaking such a hue and cry like a cow-boy, immediately the deceasedElumalai had bet A2 with his hand and in retaliation A2 pushed thedeceased Elumalai on the ground. Enraged at it the deceased Elumalai tookout a log and assaulted on the left leg of A2 and when A1 intervened, thedeceased Elumalai also assaulted A1 on the right side of his head and onhis right fingers. Immediately A1 snatched the log from the hands of thedeceased Elumalai and bet on the head of the deceased Elumalai with thesame log and immediately the deceased Elumalai fell unconsciously.Thereafter P.W.1 along with Govindarajan and Sriram removed the deceasedElumalai to Kilpauk Government Hospital from where they were referred toGeneral Hospital, Chennai, and without responding to the treatment at theGeneral Hospital, Chennai, Elumalai breathed his last at about 2.00 pm onthe following day. The injured accused were also came to GeneralHospital, Chennai, on the same night on the date of occurrence and theywere also treated in General Hospital, Chennai. On 12.8.1998 at about2.30 or 3.00 pm, the Sub-Inspector of Police came to the General Hospital,Chennai, to whom he has preferred Ex.P.1-complaint. He would identifyM.O.1 as the log used by A1 at the time of the occurrence. https://hcservices.ecourts.gov.in/hcservices/

6. P.W.2 has also corroborated the evidence of P.W.1. He woulddepose that the deceased Elumalai had assaulted A2 with a stick on bothhis legs and when A1 intervened, the deceased Elumalai had also attackedA1 with a log on this head and thereafter in retaliation A2 caught hold ofthe deceased Elumalai and A1 attacked the deceased Elumalai by snatchingthe log from his hand on the head of the deceased Elumalai, who fell downunconsciously and that he (P.W.2) along with P.W.1, Govindarajan, Sriramand Sivalingam, removed the deceased Elumalai to Kilpauk GovernmentHospital from where he was referred to General Hospital, Chennai, and thathe died on the next day at about 2.00 pm. P.W.2 has also identified M.O.1as the log used by A1 to assault the deceased Elumalai.7. P.W.3 is also an ocular witness to the occurrence. Incorroboration of the evidence of P.W.1 and P.W.2, he would also state thatthe deceased Elumalai had assaulted A2 with log and when A1 intervened, hewas also beaten up with the same log on the head by the deceased Elumalaiand thereafter A2 caught hold of the deceased Elumalai and A1, aftersnatching the log from the deceased Elumalai, had beaten on the head ofthe deceased Elumalai, which resulted in his death on the following day atGeneral Hospital, Chennai. P.W.3 has also identified M.O.1 as the weaponused by A1 at the time of occurrence. 8. P.W.4 has also corroborated the evidence of P.W.1 to P.W.3 inrespect of the assault made by the deceased Elumalai and also the assaultmade by A1 & A2 on the deceased Elumalai. But P.W.4 would say that beforethe Doctor P.W.9, who had treated the deceased Elumalai at the GeneralHospital, Chennai, he said that he (deceased Elumalai) had sustainedinjury only due to a fall from a building from a height of 10 feet inorder to get Rs.10,000/- as compensation.9. P.W.12 is the Sub-Inspector of Police, who had registered thecase on the basis of complaint Ex.P.1 under Cr.No.1606 of 1998 underSection 341 & 302 IPC. Ex.P.10 is the FIR. 10. P.W.13 is the Inspector of Police, who took up the investigationon the basis of Ex.P.10. He had visited the place of occurrence andprepared Ex.P.11-observation mahazar in the presence of P.W.6 and haddrawn a rough sketch Ex.P.12 and has recovered blood stained sand andsample sand M.O.6 & 7 respectively under Ex.P.13 mahazar in the presenceof P.W.8. He had conducted inquest at the mortuary at General Hospital,Chennai, where the corpse of the deceased Elumalai was kept preserved.Ex.P.14 is the inquest report. He had examined the witnesses and recordedtheir statement and arrested the accused on 13.8.1998 at Broad way busstand and recorded the confession statement of the accused and on thebasis of the confession statement of A1 he had recovered M.O.1-stick whichwas used by him in the occurrence. Ex.P.15 is the admissible portion ofthe confession statement of A1. P.W.13 had sent the accused for judicialcustody. https://hcservices.ecourts.gov.in/hcservices/

11. P.W.8 is the Assistant in the Chief Metropolitan MagistrateCourt. He would state that the material objects connected with this caseviz. M.Os. 1, 2, 3, 5, 6 & 7 were sent to forensic science laboratory forchemical examination along with Ex.P.4 letter of requisition. Ex.P.5 isthe analyst's report.12. P.W.9 is the Doctor, who had treated both the accused as well asthe deceased Elumalai. Ex.P.6 is the copy of the accident register issuedto A1 for the injuries he had sustained and Ex.P.7 is the copy of theaccident register issued to A2. P.W.9, the doctor, would depose that on11.8.1998 at about 9.10 pm the deceased Elumalai was brought to theGeneral Hospital by one K.Govindaraj, who had informed that the deceasedElumalai had sustained injury due to a fall from a building from an heightof 10 feet on the same day at 7.30 pm. She (P.W.9) has further deposedthat the deceased Elumalai also informed her that he had sustained theinjury due to a fall from a building, which is under construction atKilpauk Brindavan Street, from an height of 10 feet. Ex.P.8 is the copyof the accident register pertaining to the injury sustained by thedeceased Elumalai.13. P.W.10 is the Doctor, who had conducted autopsy on the corpse ofthe deceased Elumalai. Ex.P.9 is the post-mortem certificate, in whichthe following antemortem injuries on the corpse were noted:- i) An abrasion measuring 4 x 2 cm on the left leg ; anabrasion measuring 2 x 2 cm on the left wrist. ii)Sutured wound measuring 10 cms in length on the head.iii) On exploration of the said wound blood clots were seenon the front and middle portion of the said wound on the head.iv) A fracture on the centre of the scalp measuring 5 x 2.5cmv) A compressed wound measuring about 10 x 9 cm on theright side and centre and back portion of the head.vi) Blood haemorrhage seen on the centre and rear portionof the brain.Hyoid bones were found intact. Both the lungs were found pale.Stomach was empty. Urinal bladder was empty. Liver and bothkidneys were found pale.The doctor has opined that the deceased would have died dueto the injury he had sustained on the head.14. P.W.11 is the post-mortem head constable, who had identifed thecorpse to P.W.10 during post-mortem. After post-mortem, he had seizedM.O.5 from the corpse and handed it over to the Inspector of Police.15. P.W.13 after completing the investigation had filed the chargesheet on 6.12.1998 against the accused under Section 341 and 302 IPC. https://hcservices.ecourts.gov.in/hcservices/

16. On the basis of the oral and documentary evidence the learnedtrial judge has held that the charges levelled against A1 and A2 have beenproved beyond any reasonable doubt and accordingly convicted A1 underSection 304 IPC and sentenced to undergo 5 years RI and slapped a fine ofRs.1000/- with default sentence and A2 was also convicted under Section304 r/w 109 IPC and sentenced to undergo 5 years RI and levied a fine ofRs.1000/- with default sentence. Aggrieved by the findings of the learnedtrial judge, this appeal has been preferred by A1 & A2.17. Now the point for determination in this appeal is whether theguilt against the A1 & A2 has been proved beyond any reasonable doubt tosustain the conviction and sentence imposed by the trial Court or to beset aside for the reasons stated in the grounds of appeal?18. The Point:- 18(a) Heard Mr.R.Rajesakaran learned counsel for the appellants and Mr.R.Munniappa Raj, learned Government Advocate (Crl.Side)and considered their rival submissions. The learned counsel for theappellant focused the attention of this Court to the evidence of P.W.9,the doctor, who had examined the deceased Elumalai on 11.8.1998 at about9.30 pm and issued Ex.P.8, wound certificate. According to the DoctorP.W.9, the deceased Elumalai was brought to the hospital by one Govindarajand both Govindaraj and the deceased Elumalai informed her (P.W.9) thatthe deceased Elumalai had sustained the injury only due to a fall from abuilding from the height of 10 feet. The learned Government Advocaterelied on the evidence of P.W.4 who would give an explanation for theabove said information passed on to the doctor by the deceased Elumalaiand Govindaraj and according to (P.W.4) Govidaraj, only to get Rs.10,000/-as compensation they informed the doctor P.W.9 that the deceased Elumalaihad fallen from a building from a height of 10 feet. This explanationcauses a cloud on the case of the prosecution and it is unbelievable. Thenatural conduct of a person who had been assaulted, according to theprosecution, by A1 to A2 with a log on head will be to reveal the truthbefore the doctor, who is going to treat him for the injury he hadsustained. The evidence of P.W.9 is that not only Govindaraj, thedeceased had informed her that he (deceased) has sustained injury due toa fall from a building, which is under construction, from a height of 10feet. The deceased Elumalai was admitted in the General Hospital on11.8.1998 at about 9.10 pm. According to P.W.10, the doctor, who had conducted autopsy, the death intimation of the deceased Elumalai wasreceived by him on the next day i.e., on 13.8.1998 at about 12 noon.There is no explanation forth coming from the prosecution as to why adying declaration was not recorded from the deceased Elumalai, who wasalive for nearly 15 hours from the time of admission on 11.8.1998. https://hcservices.ecourts.gov.in/hcservices/ 18(b) In Ex.P.1-complaint there is absolutely no averment thatthe deceased Elumalai had only to get compensation of Rs.10,000/- hadinformed the doctor P.w.9 that the deceased Elumalai had fallen from abuilding from a height of 10 feet. In fact Ex.P.1-complaint was preferredby P.W.1-Durai and not by P.W.4-Govindaraj. He alone had brought thedeceased Elumalai to the hospital and he is also an ocular witness to thecrime according to the prosecution. All the three witnesses viz. P.Ws.1to 3 would state that the deceased Elumalai had assaulted A2 with a log onboth his legs at first and then also attacked A1 who had intervened tosave A2 who is none other than the brother of A1 from the assault of thedeceased Elumalai. It is in evidence that after the deceased Elumalaiattacked A1 & A2 with a log, the same log was snatched by A1 and thedeceased Elumalai was attacked by A1. When A1 was questioned underSection 313 of Cr.P.C., he would say that only in self-defence he hadpushed the deceased Elumalai. It is further in evidence that P.W.3 hasadmitted that both P.W.1 and the deceased Elumalai had consumed liquor and they were under the influence of arrack at the time of occurrence. Inthe cross-examination P.W.4 would also admit that the aggressor for theoccurrence was the deceased Elumalai. P.W.4 in categorical terms wouldadmit in cross-examination that only in self-defence the accused havepushed the deceased Elumalai. The wound certificate relating to A1under Ex.P.6 would show that he had sustained a degloving (exposure of thebony mandibular anterior or posterior regions by oral surgery) injury onthe middle finger on the right hand and abrasion on the fore head and alsoin this aspect, the medical evidence of P.W.9, the doctor, who had treatedA1 is that he could see a lacerated injury on the left side of the forehead and middle finger of the right hand was hanging on the skin. Ex.P.7is the copy of the accident register relating to A2 which shows abrasionon the left knee and both of them were referred to radiology department totake xray but the xray report has not been filed along with Ex.P.6 & 7.From the above said lacuna in the prosecution case will definitely lead usto an inference that the occurrence would not have occurred as narrated bythe prosecution and that the deceased Elumalai was the aggressor for theoccurrence and only in self-defence the accused have pushed him down.Point is answered accordingly. https://hcservices.ecourts.gov.in/hcservices/

19. In the result, the appeal is allowed and the conviction andsentence imposed on A1 & A2 by the learned trial judge in S.C.No.159 of1999 on the file of VI Additional Sessions Judge, Chennai, is set asideand A1 & A2 are acquitted of the charges levelled against them. Bailbonds stands cancelled. Fine amount shall be refunded to A1 & A2.ssvSd/-Asst.Registrar/true copy/ Sub Asst.RegistrarTo1.The VI Additional Sessions Judge, Chennai.2. - do- Thro' The Principal Sessions Judge, Chennai.3.The Metropolitan Magistrate No.II, Egmore, Chennai.4. - do- Thro' The Chief Metropolitan Magistrate, Chennai.5. The Superintendent, Central Prison, Chennai.6.The Public Prosecutor, High Court, Madras.7.The Inspector of Police, G-3, Kilpauk Police Station, Chennai.8.The Superintendent, Central Prison, Vellore.RS(CO)dcp/18.4.07Crl.A.No.427 of 2001