The & Ors. v. State ofHaryana) & Ors.
Case at a glance
Provisions considered
- Indian Penal Code, 1860 ss. 34, 147, 148, 149, 302, 323, 324, 506(ii)
- Code of Criminal Procedure, 1973 ss. 235(1), 313, 397, 401
Key paragraphs
- Para 2020. For the same reasons stated above, the criminal revisioncase No.1073 of 2002 filed by P.W.1 is dismissed. Sd/Asst. Registrar/true copy/Sub Asst. Registrar https://hcservices.ecourts.gov.in/hcservices/ jrlTo1. The Additional District Sessions Judge, Fast Track Court No.2, Salem.2.-do- Thro The Prl. Sessions Judge, Salem. 3. The District Munsif…
Judgment
The Appellant A1 and A2/Accused No.A3 and A4 namely 1. AccusedNo.3 Jayapal,2.Accused No.4 Jayavelu was directed to release torelease on bail as per order of this Court dt.15.4.2002 made in Crl.M.P. 3332/2002 in CA 474/2002 on the bail of this Hon'bleCourt. The Appellant A3/Accused No.5 namely Chellayan was directed toreleased on bail as per order of this Court dt.29.5.2002 made in Crl.M.P.4706/2002 in CA 474/2002 on the bail of this Hon'ble Court. IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 25.08.2009CORAM THE HONOURABLE MR. JUSTICE T.SUDANTHIRAMCrl.A.No.474 of 2002andCrl.R.C.No.1073 of 2002 Crl.A.No.474 of 2002:
Jayapal2.Jayavelu3.Chellayan .. Appellants/Accused 3, 4 & 5Vs.State represented by the Inspector of Police, Tharamangalam Police Station, Salem District... Respondent/ComplainantCrl.R.C.No.1073 of 2002:Chellappan .. Petitioner/P.W.1Vs.1.Seeranga Nadar2.Veerammal3.Jayapal4.Jayavelu5.Chellian6.Thangavelu7.Sellammal8.Thayammal https://hcservices.ecourts.gov.in/hcservices/
Rosi 10. Settu @ Senthilkumar11.John.. Respondents 1 to 11/A-1 to 11Prayer in Crl.A.474/02: Criminal Appeal filed under Section 374 of Crl.P.C. against the conviction imposed on the appellants under Section 324 I.P.C. and sentencing the 1st appellant on two countseach for a period of three years rigorous imprisonment and fine ofRs.2,000/- on each count and in default, to undergo imprisonmentfor the period of six months rigorous imprisonment on each countand sentencing the 2nd and 3rd appellants to undergo rigorousimprisonment for a period of three years and fine of Rs.2,000/- andin default, to undergo six months rigorous imprisonment passed bythe Additional District Judge, Fast Track Court No.2, Salem made inS.C.No.32 of 1999, dated 22.02.2002.Prayer in Crl.R.C.No.1073/02: Criminal Revision filed under Sections 397 and 401 of Cr.P.C. against the order of acquittalpassed against the respondents 1 to 11, in respect of the chargeframed against them by Judgment dated 22.02.2002 passed inS.C.No.32 of 1999 by the Additional District Sessions Judge, FastTrack Court No.2, Salem and prays to set aside the order ofacquittal passed under Section 235(1) of Cr.P.C. and order of re-trial of the case.
Crl.A.No.474 of 2002 For Appellants: Mr.N.Anand VenkateshFor Respondent : Mr.J.C.Durairaj, Government Advocate (Crl. Side)- - - - - Crl.R.C.No.1073 of 2002:For Petitioner: Ms.Jayasri Baskar Mr.N.Anand VenkateshFor Respondents : Mr.J.C.Durairaj, Government Advocate (Crl. Side)- - - - -COMMON JUDGMENT The appellants in criminal appeal No.474 of 2002, who are the Accused Nos.3, 4 and 5 in Sessions Case No.32 of 1999 on the fileof the learned Additional Sessions Judge, Fast Track Court No.2,Salem, stand convicted for an offence under Section 324 IPC (1stappellant alone for two counts) and sentenced to undergo for aperiod of three years rigorous imprisonment and to pay a fine of https://hcservices.ecourts.gov.in/hcservices/ Rs.2,000/- and in default, to undergo for a further period of sixmonths rigorous imprisonment. 2. Aggrieved by the said conviction and sentence, theappellants/accused Nos.3, 4 and 5 have preferred the above criminalappeal.
3. Totally there were 11 accused in this case and the otheraccused have been acquitted by the Trial Court. Aggrieved by theorder of acquittal passed against the accused Nos.1, 2, 6 to 11 andalso the acquittal of all the accused from the charge under Section302 I.P.C. read with Section 34 I.P.C., P.W.1 in this case thepetitioner herein has preferred a criminal revision case.4. The case of the prosecution, in brief, is as follows:-There was some land dispute between the accused party andthe deceased party. The deceased Velayutham is related to P.W.1.Four years prior to the occurrence, a dispute arose between thedeceased Velayutham and the accused and a panchayat was alsoconvened. Further, there was some money transaction between P.W.3and the accused and there was a dispute in respect of it. On03.10.1995, at about 3.00 p.m. all the accused joined togetherforming unlawful assembly went to attack. 4th accused attackedP.W.1 with brick on his chest.
3rd accused also attacked him on theleft chest. Then, at that time the deceased Velayutham came andintervened, 6th accused attacked him with a crowbar on his left sidehead. 5th accused also attacked him with a crowbar on his rightside head. 9th accused-Rosi attacked P.W.2 on his thigh with acrowbar. Then, P.Ws.1, 2 and others pushed the accused down and theaccused left the scene of occurrence. The injured victims and thedeceased Velayutham were taken to the hospital. (ii) P.W.8-Dr.Kanagarathinam examined P.W.1-Sellappan andnoticed the following injury:-"Contusion 4 x 3 cm on the right side chest C/o. body pain injuries is simple in nature".Ex.P.6 is the wound certificate issued by him. (iii) P.W.8-Dr.Kanagarathinam examined P.W.2-Alagesan andnoticed the following injuries:-"1. A lacerated injuries right cheek 2 x 2 x 1 cm2. C/o. Chest pain and3. Contusion 5 x 5 cm right thigh and C/o. Severe https://hcservices.ecourts.gov.in/hcservices/ pain on the through thigh".
Ex.P.7 is the wound certificate issued by him. (iv) P.W.8-Dr.Kanagarathinam also examined the deceasedVelayutham and noticed the following injuries:-"1. A lacerated injury 7cm x 5cm x 1cm on the leftparietal region of scalp2. A lacerated injury 2cm x 1cm x 1cm on the rightchest and3. A lacerated injury 3cm x 2cm x 1cm on the righteyebrow. " Ex.P.8 is the accident register issued by him. (v) P.W.12-Ponnusamy was the Head Constable of Tharamangalampolice station. On 03.10.1995, at about 8.00 p.m, he received amessage from Omalur police station and went to Salem MohanKumaramangalam hospital and received a complaint from P.W.1 underEx.P.1. Then he came back to Tharamangalam police station andregistered a case in Crime No.441 of 1995 for the offences under Sections 147, 148, 324, 323 and 506(ii) I.P.C. and preparedEx.P.17, First Information Report. On 04.10.1995, at about 6.00a.m., he went to scene of occurrence and prepared Exs.P.2 and P.3,Observation Mahazars and Ex.P.18, Rough Sketch in the presence ofwitnesses.
From the scene of occurrence, he recovered M.Os.1 to 6in the presence of witnesses Kandasamy and Eswaran. Then, herecovered M.Os.10 to 12 from the deceased Velayutham in thepresence of witness P.W.1 under Ex.P.19. On the same day, hereceived a complaint from the fourth accused Jayavelu under Ex.P.20and registered a case in Crime No.442 of 1995 for the offencesunder Sections 147, 148, 324 and 323 I.P.C. and prepared Ex.P.21,First Information Report. The deceased Velayutham, who wasadmitted in the Salem hospital, died on 04.10.1995 at about 12.00p.m.(vi) P.W.13-Sundarrajan, who was the Sub-Inspector of Policeat Tharamangalam police station at the relevant point of time, received the death intimation under Ex.P.22 from the SalemGovernment Hospital. Then, he altered the case into one under Section 302 I.P.C. and prepared the Express F.I.R. under Ex.P.23. (vii) The Inspector of Police by name Kulam Isthakeer took upthe investigation and he went to the scene of occurrence andexamined the witnesses.
He held inquest on the body of the https://hcservices.ecourts.gov.in/hcservices/ deceased Velayutham in the presence of panchayatars and preparedEx.P.26, Inquest Report. He sent the body for post-mortemexamination. (viii) P.W.9-Dr.Karthikeyan received a requisition letterunder Ex.P.10 from the Inspector of Police, Tharamangalam policestation and conducted autopsy on the body of the deceasedVelayutham on 05.10.1995 at about 12.00 p.m. and he found thefollowing injuries:-"i) Dark brown colour abrasions with underlyingbruising dark red, on the outer aspect of upper 3rd ofright arm, 6cm x 1.5cm x 0.5 cm on the back of rightelbow, 2cm x 1cm x 0.5 cm.ii) Lacerated wounds with intact sutures on theouter part of right eyebrow, 2cm x 0.5cm x bone deep, onthe right maxilla 2 in number each measuring 1cm x 0.5cm bone deep, on the left parietal region of the scalp9cm x 0.5 cm x bone deep. On removal of the suturesedges are irregular.iii) Subscalpular bruising of left parietal 7cm x5cm, left temporal 9cm x 6cm.
The left temporalismuscle is found bruised.iv) A fissured fracture of left tempero parietalbones to a length of 11 cm.v) 75 gms of extra dural haemotama on the lefttemporal and perietal lobes of cerebrum.vi) Diffused subdural haematoma on the rightcerabral hemisphere.vii) Subarachnoid hemorrhage on both parietallobes. Viii) Fracture of floor of left middle cranialfossa, communicates with the external fracture. https://hcservices.ecourts.gov.in/hcservices/ ix) Bony brusing of floor of anterior cranialfossa, 3cm x 2cm. " Ex.P.11 is the Post-mortem Certificate issued by P.W.9-Dr.Karthikeyan. He opined that the deceased died due to CranioCerebral Injuries. (ix) As the Inspector of Police viz., Kulam Isthakeer diedpending trial, P.W.14-Karunakaran, the Inspector of Police took upfurther investigation and who was acquainted with the hand writingof the Inspector of Police kulam Isthakeer, who had given evidencebefore the Court.
On 03.01.1997, he went to Omalur GovernmentHospital and received the accident registers of P.Ws.1 and 2 andenquired the Dr.Kanagarathinam and recorded his statement. He alsoenquired the Post-mortem Doctor Karthikeyan and recorded hisstatement. After completion of the investigation, he filed a finalreport on 04.01.1997 for the offences under Sections 147, 148, 323,324 and 302 r/w. 34 I.P.C. against the accused.5. To prove the case, the prosecution examined P.Ws.1 to 14;marked Exs.P.1 to P.26 and produced M.Os.1. to 12. During thecourse of cross-examination of witnesses, the defence has chosen tomark three documents as Exs.D.1 to 3. 6. The accused were questioned under Section 313 Cr.P.C. withregard to the incriminating circumstances and they denied theircomplicity. The third accused filed a written statement. 7. The Trial Court, after considering the oral and documentaryevidence, convicted the accused Nos.3, 4 and 5 alone for theoffences as stated above.8.
The learned counsel for the appellants/accused submits thatthe Trial Court has erred in convicting the accused Nos.3, 4 and 5alone having acquitted the other accused. He also submits that itis a case in counter and the accused Nos.3 and 5 were seriouslyinjured and the Trial Court has failed to take into considerationthe injury sustained by the accused Nos.3 and 5 and the prosecutionhas not properly explained. The learned counsel for theappellants/accused further submits that a complaint was also givenby the fourth accused and on the basis of the complaint, noinvestigation was done and even the accident registers of A-3 andA-4 have been marked by the defence as Exs.D.2 and D.3. The https://hcservices.ecourts.gov.in/hcservices/ learned counsel for the appellants/accused also relied on thedecision of the Hon'ble Supreme Court reported in (2008) 1 MLJ(Crl.) 1369 (SC) (Babu Ram and Others v. State of Punjab).9.
Per contra, the learned Government Advocate (Crl. Side)submits that P.Ws.1 and 2 are the injured witnesses and theirevidence is corroborated by medical evidence. P.Ws.1 and 2 havespoken about the attack made by the accused on them and also theattack on the deceased. The learned Government Advocate (Crl. Side)further submits that the acquittal of the other accused by the Trial Court would not affect the conviction on the accused Nos.3, 4and 5.
The learned Counsel for the petitioner in Crl.R.C.No.1073of 2002 submits that P.Ws.1 and 2 have specifically stated aboutthe presence of all the accused and as such, the unlawful assemblyis established and all the accused ought to have been convictedunder Section 302 read with 149 I.P.C. But, the Trial Court hasacquitted all the accused under Section 302 read with 34 I.P.C. Thelearned counsel for the petitioner further submits that theinjuries sustained by the accused has been explained by thewitnesses and even in the complaint-Ex.P.1, it is stated that theprosecution witnesses pushed the accused down and in that course, they have sustained injuries and as such, it cannot be said thatthe prosecution has not properly explained the injuries sustainedby the accused. She also submitted that even if the injuries onaccused not explained, it is not a ground for acquitting theaccused and relied on the decision of the Hon'ble Supreme Courtreported in 2007(2) SCC (Crl.) 214 (Krishnan and others v. State of Haryana).
This Court considered the submissions made by all theparties and perused the records carefully.
According to the prosecution case, there was a landdispute between the prosecution witnesses and the accused party. According to the prosecution witnesses, the accused have came tothe scene of occurrence and attacked P.Ws.1 and 2 and also thedeceased with bricks and crowbar. Though P.Ws.1 to 4 and 6 are theeye witnesses, as parrot like repetition, they have spoken aboutthe occurrence attributing the overt act on the accused. Thesewitnesses had not spoken specifically about the injuries sustainedby the accused Nos.3 and 4. In Ex.P.1, the complaint given byP.W.1, it is merely stated that the accused were pushed down. Theinjuries sustained by the accused are found in Exs.D.2 and D.3. The injuries sustained by A.4-Jayavelu are as follows:- https://hcservices.ecourts.gov.in/hcservices/ "i) Laceration injury near the sagittall suturescalp 8cm x 4cm x 1cm.ii) Lacerated injury 5cm x 4cm x bone deep on the right parietal region of scalp.iii) Fracture 3cm seen on the right parietal bone. Wound not sutured for purpose of Neuro Surgical (?) examination. (n.c.) bandage applied.iv) Contusion right shoulder 5cm x 5cmv) Contusion 6cm x 3cm on the back. Contusion 5cm x 5cm on the left knee Multiple small abrasion on the back. "Ex.D.2 is the accident register given to him. (ii) The injuries sustained by A.3-Jayapal are as follows:-"i) Laceration injury 3cm x 2cm x 1cm on the occipital region of scalp.ii) Abrasion 3cm x ½ cm on the left side chest. "Ex.D.3 is the accident register given to him.
Both the accused have sustained injury on their head andthe fourth accused Jayavelu has sustained injury even on the rightperietal bone. It cannot be said that on pushing by fall theaccused, sustained those injuries. Further, A.4 has given acomplaint to the police and the same was also registered in CrimeNo.442 of 1995. In spite of the registration of the counter case, the prosecution has not placed any materials regardinginvestigation in the said case before the Court.
It is not the case of the prosecution that the accusedsustained injury at different occurrence. The time of occurrencementioned in both the complaints are one and the same i.e., on03.10.1995 at about 3.00 p.m.
In the decision of the Honourable Apex Court in Babu Ramand Anothers v. State of Punjab reported in (2008)1 MLJ (Crl.) 1369(SC), it has been observed in paragraphs 18 and 19 as follows: "18. It is a well-settled law that in a murdercase, the non-explanation of the injuries sustainedby the accused at about the time of the occurrenceor in the course of altercation is a very importantcircumstance from which the Court can draw thefollowing inferences:- https://hcservices.ecourts.gov.in/hcservices/
1. that the prosecution has suppressed thegenesis and the origin of the occurrence and hasthus not presented the true version;2. that the witnesses who have denied thepresence of the injuries on the person of theaccused are lying on a most material point andtherefore their evidence is unreliable;3. that in case there is a defence version whichexplains the injuries on the person of the accusedit is rendered probable so as to throw doubt on theprosecution case. [See Lakshmi Singh v. State of Bihar; AIR 1976 SC 2263 : (1976) 4 SCC 394 : (1976)SCC (Cr) 67119. Further, it is important to point out thatthe omission on the part of the prosecution toexplain the injuries on the person of the accusedassumes much greater importance where the evidenceconsists of interested or inimical witnesses orwhere the defence gives a version which completes inprobability with that of the prosecution one. "
In the decision relied on by the learned counsel for therevision petitioner in Krishnan and others v. State of Haryanareported in 2007(2) SCC (Crl.) 214, it is observed that "it iswell-settled that merely because prosecution has failed to explainthe injuries of the accused, the same cannot be a solitary groundfor doubting the prosecution case, if otherwise, evidence reliedupon is found to be credible. "
In the decision of the Honourable Supreme Court in Stateof Uttar Pradesh v. Gajey Singh and another reported in 2009(3)SCALE 337, in which, it has been observed in Paragraph No.32 asfollows: "32. A three-Judge Bench of this Court in Abdul Rashid Abdul Rahiman Patel & Others v. State of Maharashtra (2007) 9 SCC 1, observed that it is wellsettled that if injuries on the defence are notexplained by the prosecution, the same may be takento be a ground to discard the prosecution case, incase the truthfulness of prosecution case isotherwise doubted. But in cases like the presentone, where there is consistent evidence of theinjured eyewitnesses apart from evidence ofindependent eyewitnesses, even if it assumed that theprosecution has failed to explain the minor andsimple injuries on the defence, the same cannot be https://hcservices.ecourts.gov.in/hcservices/ taken to be a ground to reject the testimony of suchwitnesses. In the instant case, the injuries wereneither superficial nor minor therefore, nonexplanation of serious injuries in the instant casedoubts the very genesis of the prosecution version. "
In view of the ratio laid down by the Honourable SupremeCourt, this case has to be considered. In the instant case, thougha case was registered on the basis of the complaint given by theaccused, the prosecution has not placed all the records. When acase and counter has arisen in the course of same transaction, itis the duty of the prosecution to place the records relating toboth the cases and further duty is caused upon the prosecution topoint out clearly the genesis of the occurrence, and thereby, enabling the Court to find out the truth and fix the aggressors. The injuries sustained by the accused 3 and 4 on the head are alsoserious in nature and cannot be termed as minor and superficialinjuries. In view of the non-explanation of the injuries sustainedby the accused and also due to failure on the part of theprosecution by not placing all the records pertaining to thecounter case, this Court is to draw the inference that theprosecution has not presented the true version and the origin ofthe occurrence is not established and the eye-witnesses havedeliberately suppressed the part of the transaction, in which, theaccused were injured. In the said circumstances, it is very unsafeto convict the accused placing reliance on the evidence of eye-witnesses.
In the result, the Criminal Appeal No.474 of 2002filed by the accused is allowed and the conviction and sentenceimposed on the appellants/Accused Nos.3, 4 and 5 in Sessions CaseNo.32 of 1999 on the file the learned Additional Sessions Judge, Fast Track Court No.2, Salem are set aside and theappellants/Accused Nos.3, 4 and 5 are acquitted of all the chargesand the fine amount paid, if any, is to be refunded to them. Thebail bond executed by the Accused Nos.3, 4 and 5 shall standcancelled.
For the same reasons stated above, the criminal revisioncase No.1073 of 2002 filed by P.W.1 is dismissed. Sd/Asst. Registrar/true copy/Sub Asst. Registrar https://hcservices.ecourts.gov.in/hcservices/ jrlTo1. The Additional District Sessions Judge, Fast Track Court No.2, Salem.2.-do- Thro The Prl. Sessions Judge, Salem. 3. The District Munsif Cum Judicial Magistrate I,Omalur.4.-do- thro The Chief Judicial Magistrate, Salem. 5. The Superintendent, Central Prison, Salem.6. The Inspector of Police, Tharamangalam Police Station, Salem District. 7. The District Collector, Salem. 8. The Director General of Police, Chennai.9. The Public Prosecutor, High Court, Madras.+1cc to Mr.N.Anand Venkatesh, Advocate Sr 41646VSN(CO)km/14.9.Crl.A.No.474 of 2002andCrl.R.C.No.1073 of 2002
Questions this judgment answers
Which statutory provisions did this judgment involve?
Indian Penal Code, 1860 — ss. 34, 147, 148, 149, 302, 323, 324, 506(ii); Code of Criminal Procedure, 1973 — ss. 235(1), 313, 397, 401.
Which court decided this case, and when?
Madras High Court, on 25 Aug 2009. The bench was T SUDANTHIRAM.
Precedent status how later indexed judgments have treated this case
No known negative treatment found in the Courts & Cases corpus.
This is a result about the indexed corpus, not a finding that the judgment remains good law. Coverage may be incomplete.