Devaboopathi @ Mani v. The State of Tamilnadurep

Bail SlipThe Appellant/Accused viz.Devaboopathi @ Mani (A1) was directedto be released on bail in an by order of this Court dated 15.10.2001made in Crl.M.P.No.6587/2001 in CA 814/2001 and The Appellant/Accused viz.Durairaj (A2), Palanisamy (A3) weredirected to be released on bail in an by order of this Court dated11.9.2001 made in Crl.M.P.No.6140/2001 in CA 814/2001.IN THE HIGH COURT OF JUDICATURE AT MADRASDATE: 16.7.2009CORAMTHE HON'BLE MR.JUSTICE M.JEYAPAULCriminal Appeal No.814 of 20011. Devaboopathi @ Mani2. Durairaj3. PalanisamyAppellants/Accused 1 to 3vs. The State of Tamilnadurep by The Sub Inspector of Police,Anamalai Police Station,Coimbatore.Respondent/ComplainantCriminal Appeal filed under sections 374(2) Cr.P.C. to setaside the judgment dated 23.8.2001 delivered in S.C.No.57 of 2001 bythe I Additional District Judge cum Chief Judicial Magistrate,Coimbatore. For appellant : Mr.Ashokkumar, Senior Counsel for Mr.K.KalyanasundaramFor respondent : Mr.N.Kumanan, Govt. Advocate (Crl. Side) https://hcservices.ecourts.gov.in/hcservices/ JUDGMENTAll the three accused, who were convicted and sentenced by theTrial Court are before this court by way of appeal. The firstaccused was convicted for offence under section 304(ii) and section324 (3 counts) of the Indian Penal Code and was sentenced to undergorigorous imprisonment for four years and one year for each countrespectively with usual default sentence. The second and thirdaccused were convicted for offences punishable under section 304(ii)read with section 109 of the Indian Penal Code and were sentenced toundergo two years rigorous imprisonment with usual default sentence.2. On the side of the prosecution, 17 witnesses were examinedand Exs.P1 to P30 were marked. On the side of the accused, oneThangaraj, Record Clerk of Government Hospital, Pollachi was examinedas DW1 and Exs.D1 to D4 were marked. The materials objects weremarked as M.O.1 to M.O.15.3. The brief facts of the prosecution as reflected from theevidence let in by the prosecution reads as follows:-a) A1 and A2 are the sons of A3. PW1 and the deceasedNachimuthu are co-brothers having got married PW2 and PW3respectively. P.Ws.4 and 5 are the brothers of the deceased. b) About six months prior to the occurrence, there was a quarrelbetween one Gopal and accused 1 to 3. PW1 intervened and pacifiedthem and on account of which, the accused and his family members werenot on talking terms with PW1 and his family members.c) In the month of March 1999, the deceased Nachimuthu and hisfamily invited PW1 and his family members for Mahaliamman Templefestival. PW1's family was staying in the house of the deceasedNachimuthu on and from 2.3.1999 responding to the invitationextended by PW1 and his family. d) on 3.3.1999, there was a quarrel between A1 and A2 on the oneside and PW1 and the deceased Nachimuthu on the other side. On3.3.1999 at about 8.00 p.m., when PW1 and his co-brother deceasedNachimuthu were conversing with each other at the entrance of hishouse, A1 to A3 came over there and A1 started attacking PW1 withknife and as a result of which PW1 sustained injury in his thumb,index finger and on his back. PW2 and PW3, who were present in thescene of occurrence, witnessed the occurrence. e) The deceased Nachimuthu tried to prevent A1 from attackingPW1. Infuriated by such an intervention, A1 started attacking thedeceased Nachimuthu by stabbing with knife M.O.1 while A2 and A3caught hold of his hands to facilitate launching of attack by A1 onthe deceased Nachimuthu. The inmates of the house started attackingthe deceased with coconut stick and wooden reapers. A1, on his part,attacked PW4 and PW5, who also witnessed the occurrence. https://hcservices.ecourts.gov.in/hcservices/ f) The deceased Nachimuthu was taken to Government Hospital,Vettaikaranputhur where he was declared dead. Necessary intimationwas despatched to Anamalai Police Station. PW1 was taken to NairHospital run by Dr.Muralidharan, PW7. PW4 and PW5, who also sustainedinjuries, were taken to Alwa Hospital run by Dr.Alwa, PW8. Ex.P2 isthe wound certificate issued to PW5 and Ex.P3 is the woundcertificate issued to PW4.g) The Sub Inspector of Police, PW13 attached to Anamalai PoliceStation, having received intimation from Government Hospital,Vettaikaranputhur, rushed to the hospital at about 22 hours on thesame day and obtained statement, Ex.P1 from PW1. He registered acase at about 22.45 hours in Crime No.56 of 1999 under sections 302,307, 342 and 324 of the Indian Penal Code and prepared printed FIR,Ex.P18. The first accused also gave a complaint and the same wasregistered in Crime No.57 of 1999 under section 324 of the IndianPenal Code. h) The Inspector of Police, Mr.Murugesan, PW17 took up the casefor investigation. He conducted inquest at 00.30 hours on 4.4.1999and prepared inquest report, Ex.P24. He examined PW3, PW4 and otherwitnesses over there. The dead body of Nachimuthu was despatched withthe requisition, Ex.P4 through the Head Constable, PW16 for havingpost mortem examination. i) PW17, during the course of investigation, recovered/seizedbloodstained shirts M.O.13 and M.O.14 from PW1 and PW4 undermahazars Exs.P25 and P26. The observation mahazar and rough sketchprepared by him were marked as Exs.P27 and P28 respectively. He alsoseized blood stained cement portion, M.O.8 and sample cement portion,M.O.9 in the presence of PW14. j)Dr.Sivanandan, PW9 conducted post mortem examination on thedead body of Nachimuthu and issued post mortem certificate, Ex.P5.PW9 has opined that the deceased appeared to have died due toinjuries to vital organs and hemorrhage about 12 to 16 hours priorto post mortem examination. PW16, the Head Constable, whoaccompanied the dead body, seized the blood stained clothes, M.O.7and M.O.10 to M.O.12 from the dead body of Nachimuthu and producedthe same before the Inspector of Police, PW17. k) On 5.3.1999, at about 5.00 am, PW17 arrested A2 and A3 in thepresence of PW10 and obtained confession statement. On the basis ofthe admissible portions, Exs.P8 and P9 in the confession statementgiven by the second and third accused respectively, M.O.15 and M.O.6viz., lungi, and the shirt under mahazars Exs.P29 and 30 wereseized. On 9.3.1999, when A1 was discharged from the hospital, PW17arrested him and seized M.O.3 dhothi, M.O.4 shirt and M.O.5 plasticbag containing M.O.3 and M.O.4 under mahazar Ex.P11. l) The first accused also gave a confession statement and on thebasis of admissible portion, Ex.P12 in his statement, M.O.1 knifewas recovered from a thorny bush at Dr. Balaraman Thottam. PW17despatched the material objects seized and recovered to the learnedJudicial Magistrate I Pollachi. PW12 is the Head Clerk, who spoke https://hcservices.ecourts.gov.in/hcservices/ about the receipt of the material objects and despatch of them to thechemical examiner on the basis of the request, Ex.P14 given by PW17.The material objects were sent for chemical examination undercovering letter, Ex.P15. The chemical analysis report and theserologist report, Exs.P16 and P17 were marked. PW17, havingexamined the witnesses in this case, laid final report as against A1to A3 on 17.3.1999. 4. Learned Senior Counsel appearing for the appellants/accusedwould submit that the prosecution has chosen to suppress thecriminal prosecution initiated by the first accused. The injuriessustained by him were also not brought to the notice of the court.Therefore, the court will have to entertain a suspicion whichsurrounds the whole case of the prosecution. The prosecution hascome out with an artificial version as regards the alleged role of A2and A3. PW6, the independent witness in this case has categoricallystated that there was a quarrel between PW1 and the deceasedNachimuthu on the one side and A1 and A2 alone on the other side.Never had he spoken to the role of A3 in the occurrence as alleged bythe prosecution. There was no reason for A2 and A3 to facilitate A1to attack Nachimuthu against whom there was no enmity harboured bythe accused. There was no weapon in the hands of A2 and A3. Theyhad not sustained any injury in the alleged counter attack launchedby the prosecution party which would go to show that they were notthe participants in the occurrence. Therefore, he would submit thatall the accused are entitled to acquittal as the case of theprosecution is highly doubtful. 5. Learned Government Advocate (Criminal Side) wouldvehemently submit that the evidence of PW1 to PW5, the occurrencewitnesses in this case, would go to establish beyond any reasonabledoubt that not only A1 but also A2 and A3 participated in theoccurrence and committed the offences. It is his further submissionthat the counter attack launched by the prosecution parties asagainst A1 was spoken to by the prosecution witnesses even during thecourse of chief examination. As the injury sustained by A1 wasnegligible and the case was closed, there was no occasion for PW17 tocome out with the closure report and the wound certificate of A1.Even otherwise, such a lapse on the part of the investigating agencywould not go to shatter the case of the prosecution which had beenlaid with a stronger foundation. Therefore, he would submit that theTrial Court has rightly returned the verdict as against the accusedand sentenced them accordingly. 6. P.Ws.1 to 5 have categorically spoken to the attack launchedby A1 not only on PW1 but also on the deceased and PW4 and PW5. PW1,PW4 and PW5 are the injured witnesses in this case. Theircategorical version before the court in the background of the medicaltestimony available on record that they did sustain injury in the https://hcservices.ecourts.gov.in/hcservices/ occurrence cannot be simply ignored by this court. Their evidencedoes not require any corroboration. But, in this case, it is foundthat P.Ws.2 and 3 who were also present in the very same house havespoken to the attack launched by A1 with knife M.O.1 and causedinjuries not only to the deceased Nachimuthu but also to PW1, PW4 andPW5. The occurrence had taken place at 8.00 p.m. on 3.3.1999 in thehouse of the deceased Nachimuthu. The evidence would go to show thatNachimuthu invited the family members of PW1 for celebrating thetemple festival. No wonder PW1 and PW2 were present in the house ofthe deceased and PW3. PW4 and PW5 are the brothers of the deceasedwho also resided in the very same village. It is quite natural forthe brothers to come down to the house of their brother the momentthey came to know that there was some untoward incident in the houseof their brother. They are natural witnesses whose testimony cannotbe simply brushed aside. There is no reason to reject theirevidence. Therefore, the court finds that the Trial Court hasrightly returned the verdict considering the ocular testimony ofP.Ws.1 to 5 in the background of the medical testimony available onrecord that A1 launched attack with knife M.O.1 on PW1, PW4 and PW5and caused injury and launched murderous attack on Nachimuthuindiscriminately and caused his death. 7. Coming to the role of A2 and A3, it is true that PW1 to PW5have deposed that A2 and A3 caught hold of Nachimuthu facilitating A1to attack him indiscriminately. The court has thoroughly analysedthe evidence to find whether such an act can be attributed to A2 andA3 in this case. PW6, the independent witness has spoken to theeffect that he spotted only A1 and A2 in the scene of occurrenceabout half an hour prior to the scene of occurrence. His evidencegives rise to a doubt whether A3 in fact participated in theoccurrence alleged by the prosecution. The testimony of PW6 isstrengthened by the other circumstances involved in this case. Thefact remains that A1 alone was armed with weapon, M.O.1. It is thecase of the prosecution that all the accused came to the house ofNachimuthu for the purpose of attacking PW1. The occurrence had takeplace in a rural village. As such, if A2 and A3 had decided to doaway with the life of PW1, both would have been armed with weapons.There is no reason for A1 alone to be armed with weapon and A2 and A3to be unarmed with any weapon. PW1 and PW5 launched the attack on theperpetrators of the crime as per the case of the prosecution. It isfurther spoken to by the witnesses that A2 and 3 caught hold ofNachimuthu to facilitate A1 to launch vigorous attack on thedeceased. If at all A2 and A3 were present and actively facilitatingA1, they would have also received injury in the counter attacklaunched by PW4 and PW5. P.W4 and PW5 would have shown their anger asagainst A2 and A3 also as they were in the process of facilitating A1completely unarmed to attack Nachimuthu. 8. The deceased Nachimuthu sustained injury on the back of the https://hcservices.ecourts.gov.in/hcservices/ left side elbow. It is the case of the prosecution that Nachimuthureceived any injury beforeever A2 and A3 caught hold of Nachimuthu.Beforeever A1 launched attack on Nachimuthu, A2 and A3, as per thecase of the prosecution, had caught hold of the deceased Nachimuthu.There could have been no occasion for the deceased to receive aninjury on the back of the left side elbow, if at all A2 and A3 hadtightly caught hold of the deceased. PW3, who is none other than thewife of the deceased, would state in an unambiguous term that therewas no enmity with the accused family. Therefore, A2 and A3 would nothave caught hold of the deceased Nachimuthu, who just intervened whenPW1 was attacked by the first accused. There is, of course, chancefor A1 to act as against the intervenor but, there is no reason forA2 and A3 who had no enmity with Nachimuthu to violently caught holdof him to facilitate A1 to cause his death. Therefore, the courtfinds that the parrot like version of P.Ws.1 to 5 in the above matrixof discussion embarked upon by this court that A2 and A3 alsoparticipated in the occurrence and caught hold of the deceasedNachimuthu to facilitate A1 to cause death of Nachimuthu is found tobe quite unbelievable. 9. It is true that the criminal case launched by A1 was closedas mistake of fact. The decision arrived by PW17 was not put tochallenge before the forum concerned by A1. The first informationreport, Ex.D2 launched by the first accused and the copy of theaccident register would go to show that A1 had sustained only simpleinjury. Though PW17 failed to produce those two documents along withthe closure report before the court for perusal, it is found that thematerial ocular witnesses examined on the side of the prosecutionhave candidly deposed even during the chief examination that PW4 andPW5 chose to launch a counter attack with coconut stick and causesome injury on the person of A1. 10. This court in In Re: BOYA GAJJI PEDDA VENKATANNA ALIASBODENNA AND OTHERS v. STATE (AIR 1954 MADRAS 15) chose to observe asfollows:-"In a complaint and counter-complaint such as thisobviously arising out of the same transaction whenthe prosecution proceeds on the basis of thecomplaint, we think it is the duty of theprosecution to exhibit the counter-complaintthrough the police officer who recorded it andalso to prove medical certificates of personswounded on the opposite side also and place beforethe court a definite case which they ask it toaccept. We must deprecate the prosecution in suchcases accepting, in toto one complaint andexamining only witnesses who support it and giveno explanation at all for injuries caused to the https://hcservices.ecourts.gov.in/hcservices/ other side. The truth in these cases isinvariably not in strict conformity with eithercomplaint and it is quite necessary that all thefacts are placed before the court to enable it toarrive at the truth and a just decision."11. That was a case where neither side chose to admit theinjuries on the other side. In fact, there was no explanation on theside of the prosecution for the injuries caused to DW2 examined inthat case. The defence in Ex.D10 marked therein has also notreferred to anything about the injuries sustained by the prosecutionwitnesses. But, in the case on hand, both sides have come out withthe true facts as to the injuries sustained by PW1, PW4 and PW5 andA1. Even during the course of chief examination, the prosecutionwitnesses have chosen to disclose the circumstances under which theinjuries were caused on the person of A1. The defence also producedExs.D2 and D3 to explain the circumstances under which Ex.A1sustained injury. Therefore, nothing was suppressed as regards theinjuries sustained by both the parties in this case. Of course,there is some lapse on the part of the investigating agency in notproducing those documents from its file. But, when voluminousevidence from the mouth of the injured witnesses are available toestablish the case of the prosecution that it was only A1 who causedthe death of Nachimuthu by indiscriminately cutting him with knife,M.O.1, the court finds that it is unjust to throw away the entirecase of the prosecution on the sole ground that the investigatingofficial failed to project the first information report lodged by A1,wound certificate issued by the Doctor concerned and the closurereport of the case of the first accused as mistake of fact. 12. This court in yet another case viz., KRISHNAMOORTHI v. STATE(1989 LW (Crl.) 415), referring to Order 558-A of the Madras PoliceStating Orders which cast a duty upon the investigating officer tocome out truthfully with regard to the case and counter case, choseto reject the case of the prosecution projected suppressing thecounter case set up by the accused. The court has observed that itis not safe to fasten the criminal liability on the accused in suchcircumstances. 13. That was a case where the deceased and PW1 sustainedinjuries on the attack mounted on them by the villagers. The theoryof the defence assumed seminal importance when the counter caseprojected by the defence was not properly brought to light by the SubInspector of Police concerned. 14. In the instant case, there is no such attack mounted by thevillagers to give room for doubt as regards the injuries sustained bythe rival parties. Further, there is no suppression made by thewitnesses to the occurrence as regards the injuries sustained by the https://hcservices.ecourts.gov.in/hcservices/ first accused. The case of the prosecution that simple injury wascaused in the counter attack made by P.Ws.4 and 5 on the firstaccused is found to be acceptable. Therefore, the court is notinclined to reject the entire case of the prosecution on thetechnical ground that the counter case launched by the first accusedwas not properly projected by the defence. 15. Except the evidence of PW6, who was actually not present atthe exact time of occurrence, no material is there to show that anoccasion arose for the first accused to defend himself exercising theright of private defence. 16. In view of the above facts and circumstances, the courtfinds that the prosecution has established beyond reasonable doubtthat it was only the first accused who attacked Nachimuthu and causedhis death and also attacked PW1, PW4 and PW5 with lethal weapons andcaused injuries on them and thereby committed offences punishableunder sections 304(ii) and section 324 (3 counts) of the IndianPenal Code. There is no warrant for interference with the verdict ofconviction and sentence recorded as against the first accused by theTrial Court. As there is ample doubt in the case of the prosecutionas regards the alleged abetment of A2 and A3 to commit the offencesby A1, the entire case of the prosecution as against A2 and A3 standsrejected. 17. In the result, the judgment of conviction recorded by theTrial Court under sections 304(ii) and section 324 (3 counts) of theIndian Penal Code and sentence imposed on the first accused issustained and the conviction recorded under section 304(ii) read withsection 109 of the Indian Penal Code and the sentence imposedthereunder as against A2 and A3 stands set aside. As a consequence,A2 and A3 are acquitted and are set at liberty. Fine, if any, paidby them shall be returned. Bail bonds, if any, executed by them shallstand annulled. A1 shall surrender before the Trial Court withinfifteen days to undergo the remaining period of sentence failingwhich, the Trial Court shall take steps to secure him to send him tojail to undergo the remaining period of sentence.Sd/Asst.Registrar/true copy/Sub Asst.Registrar ssk. https://hcservices.ecourts.gov.in/hcservices/ To1. The I Additional District Judge cum Chief Judicial Magistrate, Coimbatore. 2.-do- Through the Principal District Judge,Coimbatore.3. The Sub Inspector of Police, Anamalai Police Station, Coimbatore.4.The Judicial Magistrate No.1, Pollachi.5.-do- Through Chief Judicial Magistrate,Coimbatore.6.The Public Prosecutor,High Court,Madras.7.The Section Officer,Crl.Section, High Court,Madras.+1cc to Mr.K.Kalyanasundaram, Advocate Sr 31915PUR(CO)km/23.7.Crl.A.No.814 of 2001