Criminal Appeal No. 780 of 2002 · High Court · 2009

BAIL SLIPCRL.A.NO.780/2002The Appellants 1 & 2/Accused 1 & 2 viz., 1.Paulraj, 2.ChennaNaicker,were directed to be released on bail in and by order of thisCourt dated 29.7.02 made in Crl.MP.No.4910/02. andThe Appellants 3 & 4 /Accused (3 & 4) namely Vasantha Mani andAyyammal, were directed to be released on bail by the order of thisCourt dated 07.6.02 made in Crl.Mp.No.4911/02.IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 20.04.2009C O R A MTHE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR Crl.A.780 of 20021. Paulraj2. Chenna Naicker3. Vasantha mani4. Ayyammal...Appellants/Accused 1 to 4Vs.State Rep. by Station House OfficerKaramadai Police StationCoimbatore District(Crime No.146 of 2008)...RespondentThis Criminal Appeal has been filed under Section 374(2) ofCriminal Procedure Code as against the judgment and sentence ofimprisonment dated 16.05.2002 made in S.C.No.368 of 1999 on the fileof the Additional District and Sessions Judge-cum-Fast Track CourtNo.4, Coimbatore to set aside the same.For Appellants: Mr.Deivanandam for M/s.G.R.SwaminathanFor Respondent: Mr.R.Muniapparaj, Govt Advocate (Crl.Side) J U D G M E N TThe appellants herein were the accused 1 to 4 in S.C.No.368 of1999. The first and second appellant stood charged for an offencepunishable under Section 307 IPC, whereas the appellants 3 and 4stood charged for an offence punishable under Section 323 IPC. Allof them were found guilty of and convicted for the respective https://hcservices.ecourts.gov.in/hcservices/ offences with which they stood charged as aforesaid and were punishedas follows:i) Appellants 1 and 2 were punished with rigorous imprisonmentfor a period of nine years and a fine of Rs.5,000/- for the offencepunishable under Section 307 IPC with a default sentence of one yearrigorous imprisonment in case of default in payment of fine.ii) Each one of the appellants 3 and 4 was awarded a sentence ofsix months rigorous imprisonment and a fine of Rs.500/- with adefault sentence of one month rigorous imprisonment, in case ofdefault in payment of fine. As against the said conviction recorded and the sentence imposedby the learned Additional Sessions Judge (FTC No.4), Coimbatore atTiruppur, in his judgment dated 16.05.2002, the appellants havepreferred this appeal under Section 374 (2) of cr.P.C. 2. The case of the prosecution, in brief, can be stated asfollows:i) Palanisamy (P.W.2) is the father of P.W.1 - Amudha and P.W.3- Revathy. P.W.4 - Arumugam is the son-in-law of P.W.2. P.W.5 -Chinna Palanisamy is the younger brother of P.W.2. Appellant No.1 -Paulraj is the son of second appellant. The third appellant is thewife of the first appellant. Appellant No.4 is the mother-in-law offirst appellant. All the appellants/accused are residents ofChinnathottipalayam within the jurisdiction of Karamadai PoliceStation. On 12.06.1998, P.W.1 - Amudha was grazing her cattles intheir land. At about 12.00 noon, Paulraj(A1) and his wife VasanthaMani (A3) came there and abused P.W.2 informing P.W.1 that her father(P.W.2) had obliterated a portion of the bund and annexed thatportion with his land. On hearing the noise, P.W.3-Revathy came tothat place and both P.W.1 and 3 informed appellants 1 and 3 thatthey could air their grievance when their father (P.W.2) would come.Enraged over the same, appellant No.3 (Accused No.3) slapped Revathy(P.W.3) on her face. The first appellant/Accused No.1 caught hold ofAmutha's (P.W.1's) hair, pushed her to the ground and assaulted herwith his hands and legs. At the same time, the third appellant (A3)repeatedly slapped on the face of Revathy (P.W.3) using her hands.On hearing the noise Arumugam (P.W.4), the husband of Revathy rushedto the said place and then proceeded towards Sirumugai to bringPalanisamy (P.W.2). After the above said occurrence, Amudha andRevathy returned home along with the cattles. Shortly thereafter,P.W.2 and P.W.4 came there and were hearing P.W.1 narrating theoccurrence that took place in the field. ii) While so, all the appelants came to the house of P.W.2 andappellants 1 and 2 (A1 and A2) challenged P.W.2 to come out to facethem to prove that he was the son of one father and one mother. WhenP.W.2 came out, the second appellant (A2) attacked him with a stick,whereas the third appellant (Vasantha Mani) attacked Revathy (P.W.3)repeatedly with her hands. Paulraj, the first appellant (firstaccused) took out a sword (tPr;rUths;) from the eaves of the said https://hcservices.ecourts.gov.in/hcservices/ house (house of P.W.2) and cut P.W.2 on the head proclaiming that heshould die with that. In the said attack P.W.2 sustained bleedinginjuries on the left side of his head. At the same time, the fourthappellant Ayyammal (A4) repeatedly beat P.W.1. At that point oftime, the neighbours rushed to the place and separated both groups. iii) After the above said second occurrence, P.W.2 was taken inan auto-rickshaw that came there, at the first instance to a privatehospital at Karamadai wherefrom he was taken to the Governmenthospital, Mettupalayam and then from there, to Coimbatore MedicalCollege Hospital, Coimbatore. P.W.1 went to Karamadai Police stationand lodged a written complaint under Ex.P1. P.W.8 is the Medicalofficer who attended on P.W.2 at Government Hospital, Mettupalayamand issued Ex.P4 wound certificate. P.W.12 - Karuppan, the then Sub-Inspector of police attached to Karamadai police station, preparedEx.P10 - First Information Report in the printed format andregistered a case in Crime NO.146 of 1998 on the file of theKaramadai police station for offences punishable under Sections 341,323 and 307 IPC based on Ex.P1 complaint. iv) P.W.12 himself took-up the investigation of the case,visited the place of occurrence and prepared Ex.P11 - ObservationMahazar and Ex.P12 - Rough sketch in the presence of witnesses. Healso recovered M.O.9 - blood stained earth and M.O.10 - sample earthunder Ex.P13-Mahazar in the presence of P.W.7 - Venkatachalam and oneRajendran. M.O.3-blood stained half saree and M.O.4-jacket of P.W.1were also recovered by the Investigating officer from P.W.1 underEx.P13 - Mahazar. The blood stained clothes of P.W.2 produced asM.O.5 and 6 and the blood stained clothes of P.W.5 (they were stainedwhen he took the injured P.W.1 to the hospital in an auto-rickshaw)marked as M.0.7 and 8 were also recovered by the InvestigatingOfficer under Ex.P2 - Mahazar. P.W.1 was also treated for theinjuries sustained by her by P.W.10-Dr.Santha Arulmozhi, on13.06.1998. Ex.P9 wound certificate was issued to the effect that shehad sustained a lacerated injury on the left side parietal region ofthe head measuring 2 x 1 x 1 cm. It was diagnosed to be a simpleinjury. v) P.W.11-Dhinakaran took up further investigation of the casefrom P.W.12 and arrested the first appellant at 7.30 p.m on22.06.1998, recorded his confession statement and recovered M.O.2 -Bill hook from him under Ex.P13 Mahazar in the presence of P.W.9 -Village Administrative Officer and one Chandran, the villageassistant. P.W.11 also arrested the second and 4th (A2 & A4) ChennaNaicker and Ayyammal and recorded their confession statements. Basedon the said confession statements, P.W.11 recovered M.O.1 - stick atabout 2.15 p.m on 24.06.1998 under Ex.P8 - Mahazar, in the presenceof the attesting witnesses P.W.9-V.A.O and his menial Chandran.P.W.11's successor in office, namely Inspector Jayakumar continuedthe investigation, completed the same and submitted a final report on15.04.1999 alleging commission of an offence punishable underSections 307 by appellants 1 and 2 and an offence punishable underSection 323 by the appellants 3 and 4. https://hcservices.ecourts.gov.in/hcservices/

3. As many as 13 witnesses were examined, Ex.P1 to P13 weremarked and material objects M.O.1 to M.O.10 were produced on theside of the prosecution in order to substantiate the prosecutioncase.4. After recording the evidence adduced on the side of theprosecution, the trial court questioned the accused under Section 313(i)(b) of Cr.P.C. regarding the incriminating materials found in suchevidence. They denied them to be false. Murugan and Murugesan werethe two witnesses examined on the side of the appellants/accused asD.W.1 and D.W.2. No document was marked and no material object wasproduced on the side of the accused. 5. The court below considered the evidence brought on record onboth sides, in the light of the arguments advanced on both sides, andupon such consideration, came to the conclusion that the chargesagainst the accused/appellants as indicated supra were proved beyondreasonable doubt, convicted them and sentenced them with thepunishments as stated above.6. The point that arises for consideration in this appeal is"whether the conviction recorded by the court below and the sentenceimposed on each one of the accused by the court below are liable tobe interfered with in this appeal?"7. Advancing arguments on behalf of the appellantsMr.M.Deivanandam, learned counsel representing Mr.G.R.Swaminathan,counsel on record for the appellants contended that the convictionrecorded by the court below was contrary to law and facts andprobabilities of the case; that the court below completely lost sightof the fact that the appellants/accused also sustained seriousinjuries for which a separate case in Crime No.147 of 1998 had beenregistered; that the prosecution had not given any explanation forthe injuries sustained by the accused persons; that the court belowtotally ignored a vital piece of evidence, namely the registration ofthe case in Crime No.147 of 1998; that the court below failed toproperly appreciate the fact that there had been long standing enmityas a result of which there had been a wholesome implication of allthe family members of the accused; that the serious infirmities anddefects found in the evidence of the prosecution witnesses had notbeen properly adverted to by the court below; that the court belowwould have come to the conclusion that the prosecution version wasnot proved beyond reasonable doubt, had it appreciated the evidencein a proper perspective and that the judgment of the court belowconvicting the appellants/accused suffered from serious defect andinfirmity and hence the same should be set aside and theappellants/accused should be acquitted of the respective offenceswith which they stood charged and tried. It is the furthercontention of the learned counsel for the appellants that, in anyevent, the sentence awarded is disproportionate and highly excessive.8. The submissions made by Mr.R.Muniapparaj, learned GovernmentAdvocate (Crl. Side) in this regard were also heard and this courtpaid its anxious consideration to the same. https://hcservices.ecourts.gov.in/hcservices/

9. According to the prosecution version, the occurrence tookplace in stages at two places within a gap of fifteen minutes. At thefirst instance, the appellants/accused are said to have abused andattacked P.W.1-Amutha and P.W.3-Revathy in the field belonging toP.W.2 while P.W.1 was grazing her cattles in the said field. It isnot the case of the prosecution witnesses that any one of the accusedused any weapon in the first occurrence. On the other hand, it isthe evidence of P.W.1 and P.W.3 that they were attacked by the firstand third appellants respectively using their hands and legs.According to the evidence of prosecution witnesses, the secondoccurrence in which P.W.2 and 3 were said to have been attacked bythe appellants took place in front of the house of P.W.2. 10. The appellants/accused and the injured are not strangers andadmittedly they are close relatives. Appellant No.2 is the elderbrother of P.W.2. Appellant No.1 is the son of appellant No.2.Appellant No.3 is the wife of appellant No.1. Appellant No.4 is themother of appellant No.3. The motive for the occurrence, accordingto the prosecution version, is the alleged obliteration of a part ofthe bund separating the lands of P.W.2 and second appellant. 11. It is the case of the prosecution that the appellants abusedP.W.2 in his absence and questioned P.W.1 regarding the propriety ofthe act of her father (P.W.2) in obliterating a portion of the bundand annexing the same with his land. P.W.1 happened to be theinformant based on whose complaint the case was registered againstthe appelants. But she has not stated the time at which the firstoccurrence took place. However, P.W.3 - Revathy in her evidence hasstated that on 12.06.1998 at about 12.00 noon the first and thirdappellants assaulted her (P.W.3) and her sister (P.W.1). It is herstatement that after the first occurrence they returned home; that atabout 1.00 p.m her father came back and that while they werenarrating the occurrence that took place in the field, theappellants/accused came there and challenged P.W.2 to come out if hewas really the son of his parents. According to the evidence ofP.W.3, the second occurrence took place at about 1.00 p.m. P.W.1 hasnot stated anything about the time of occurrence. However, P.W.2would state while he was at Sirumugai, P.W.4-Arumugam came there andinformed him of the first occurrence and that when he returned homehe found P.W.1 and 3 crying and on being enquired, they narrated thefirst occurrence in which they were attacked by the first and thirdappellants. P.W.2 having chosen to state the time when he wasinformed of the first occurrence by P.W.4, has not stated anythingabout the time at which the second occurrence took place. P.W.4 alsodid not state the time at which the fist and second occurrences tookplace. P.W.4, according to the complaint and evidence of P.W.1,heard the noise created in the first occurrence and went to Sirumugaito bring P.W.2. 12. According to the testimony of P.W.1, on hearing the noisecaused by the abusive language used by the accused 1 and 3 (Paulrajand Vasantha Mani), P.W.3-Revathi came to the field wherein P.W.1-Amutha was grazing her cattles. It is her further evidence thatVasantha Mani slapped Revathi on her face and Paulraj caught hold of https://hcservices.ecourts.gov.in/hcservices/ the tuft of Amutha, pushed her to the ground and kicked her with hislegs. P.W.4-Arumugam, who heard the noise from the place ofoccurrence, went to Sirumugai to bring P.W.2. However, P.W.3-Revathi,the wife of Arumugam(P.W.4) did not say anything as to whether herhusband P.W.4 did have any personal knowledge of the firstoccurrence. She has simply stated that on 12.06.1998 at about 12.00noon, Paulraj and Vasantha Mani beat Amutha and herself andthereafter they returned home. She did not state anything as towhether P.W.4 came to the place of first occurrence on hearing thenoise. It is also not her evidence that after they were attacked byPaulraj and Vasantha Mani in the first occurrence, she went to hergarden and informed P.W.4 who was there, of the fact that they werebeaten by Paulraj and Vasantha Mani. 13. As to how P.W.4 came to know the alleged first occurrence,three different versions are there. i) One is the version of P.W.1,who has stated that P.W.4, who was in the nearby field came to theplace of first occurrence on hearing the noise, ii) P.W.3's evidenceis to the effect that no one including P.W.4 came to the place offirst occurrence and they themselves (P.W.1 and P.W.3) returend homeafter the first occurrence and iii) the third version is that ofP.W.4-Arumugam. According to his statement, his wife Revathi(P.W.3), soon after the first occurrence came to him while he was inhis garden and informed him that she and her sister Amutha werebeaten by Paulraj and Vasantha Mani whereupon he went to Sirumugai toinform his father-in-law Palanisamy (P.W.2). Therefore, it is quiteimprobable that P.W.4 would have witnessed the first occurrence inwhich P.W.1 and P.W.3 were allegedly attacked by Paulraj and VasanthaMani. The court below also has rightly disbelieved his testimony inthis regard. 14. The second occurrence is said to have taken place at about1.00 p.m on the same day. The place of second occurrence, accordingto the prosecution version, is the place in front of the house ofP.W.2. Admittedly, the house of the accused No.1 was adjoining thehouse of P.W.2. According to the evidence of P.W.1 to P.W.4, theaccused Paulraj and Vasantha Mani were the assailants in the firstoccurrence and it were they who attacked Amutha and Revathi. It isnot the case of the prosecution that either Amutha and Revathiretaliated or attacked either Paulraj or Vasantha Mani. When that isso, it shall be improbable, without there being any furtherprovocation for the accused, to attack P.W.2 after calling him tocome out of his house. It is also not the case of the prosecutionthat the accused came to the place of second occurrence with a pre-plan and armed with weapons. On the other hand, though there isevidence to the effect that P.W.2 was attacked by Chenna Naicker witha stick produced as M.O.1 and Paulraj attacked P.W.2 with an aruvalproduced as M.O.2, there is no evidence as to where from ChennaNaicker took M.O.1-stick. However, all the witnesses projected to bethe eye witnesses for the second occurrence, namely P.W.1 to P.W.4would state that Paulraj drew the aruval (M.O.2) from the eves of thehouse of P.W.2 to attack him. There is no evidence to the effectthat Paulraj knew that P.W.2 used to keep the aruval in thatparticular place. https://hcservices.ecourts.gov.in/hcservices/

15. According to the evidence of P.W.1, P.W.2 was draggedtowards the Neem tree adjoining the cart track and only at that placethe second occurrence took place. The same is not supported by anyone of the other eye witnesses. They say that immediately afterP.W.2 came out from his house in response to the call made by A1-Paulraj, he was attacked by A2-Chenna Naicker with a stick and thenby A1-Paulraj with aruval taken from the eaves of the house of P.W.2.P.W.1-Amutha was also beaten with hands by Ayyammal, according to theevidence of P.W.1. P.W.3 would say that Ayyammal and Vasantha maniattacked P.W.1-Amutha and P.W.3-Revathy with hands. However, she hasnot stated who beat Amutha and who beat Revathi specifically. Inthis regard, the evidence of P.W.4 seems to be a contrary one. P.W.4would say Vasantha Mani attacked Amutha, whereas Ayyammal attackedRevathi. But as per P.W.1-Amutha's evidence she was attacked byAyyammal and Vasantha Mani attacked P.W.3-Revathi in the secondoccurrence. P.W.4-Arumugasamy @ Arumugam is none other than thehusband of P.W.3-Revathi. It is his evidence that in the secondoccurrence, when Amutha and Revathi were attacked by Ayyammal andVasantha Mani, he made an attempt to prevent them but accused Paulrajwarned him that he would cut him if he ventured to do so. Thishappened to be the solitary version of P.W.4. It is not supported bythe evidence of other eye witnesses, namely P.W.1 to 3. It seemsP.W.4 is projected as an eye witness for both the occurrences, theone that took place in the field and the other that took place infront of the house of P.W.2. It is quite surprising to note thatP.W.4 did not come to the rescue of his father-in-law, sister-in-lawand wife when they were allegedly attacked by the accused. It isalso surprising to note that he was spared by the accused persons.If at all P.W.4 was present in the place wherein the secondoccurrence took place, naturally he would have been the person totake the injured to the hospital for treatment or at least he wouldhave chosen to go to the police station immediately to inform thepolice of the occurrence. But he has not done so. He did not evenaccompany P.W.2 to the hospital. Therefore, it is quite obvious thatP.W.4-Arumugasamy @ Arumugam could not have been an eye witness forthe occurrence and that he should have been introduced afterdeliberation as an eye witness. In this regard, the learned Trialjudge has also rightly rejected the evidence of P.W.4.16. P.W.5-Chinna Palanisamy is another brother (younger) ofP.W.2. According to his version, on hearing the noise from the houseof P.W.2, he went there at about 2.00 p.m on 12.06.1998 and foundP.W.2 lying unconscious with head injury. His further version isthat he took P.W.2 in an auto-rickshaw at the first instance to aprivate hospital at Karamadai called "Rangaraj hospital" and thentook him to Government Hospital, Mettupalayam since the doctor at theprivate hospital said he could not give treatment to him. But nonefrom the said private hospital has been examined on the side of theprosecution to corroborate the evidence of P.W.4 in this regard. Itis also quite improbable that P.W.5 would have taken P.W.2 to theGovernment hospital, Mettupalayam. The wound certificate issued forP.W.2 by the Medical Officer who admitted P.W.2 for treatment inGovernment Hospital, Mettupalayam has been produced and marked asEx.P4. In the said document it has been stated that P.W.2's daughter https://hcservices.ecourts.gov.in/hcservices/ Sornalakshmi brought him to the hospital and that P.W.2 at that timewas unconscious. If at all P.W.5 happened to be the person to takeP.W.2 to the hospital, only his name would have been noted in thewound certificate. It is also not the case of the prosecution, noris the evidence of P.W.5, that Sornalakshmi also accompanied them tothe hospital and that was why her name was noted in the accidentregister as the person who brought the injured to the hospital. Theabove said Sornalakshmi has not been examined as a witness on theside of the prosecution. It makes misprobable the prosecutionversion that as if P.W.5 took the injured P.W.2 to the hospital fortreatment. The evidence of P.W.8-Dr.Deiva sena assumes importance inthis regard. She has categorically stated that P.W.2-Palanisamy wasbrought to the hospital in unconscious stage by his daughterSornalakshmi. In the wound certificate, it has been simply noted"alleged assault". Whether the assailants were known persons orunknown persons and what was the weapon used - were not noted in thewound certificate. P.W.8 gives an explanation that Sornalakshmiinformed her that P.W.2 was attacked by eight persons with unknownweapons. Therefore, this court has to accept the contention of thelearned counsel for the appellants that in order to get over thedifficulty created by the information furnished by Sornalakshmi tothe Medical Officer at the time of admission of P.W.2, P.W.5 wasintroduced as a witness at a later point of time and afterdeliberation, has got to be countenanced. Yet another discrepancypointed out by the learned counsel for the appellants is that thoughP.W.5 admits that the police station at Karamadai is situated justopposite to the private hospital (Rangaraj Hospital) to which P.W.2was allegedly taken at the first instance for treatment, he did notmake any attempt to inform the police personnel in the said policestation. Therefore, this court, without any hesitation, comes to theconclusion that P.W.5 was introduced as a witness after deliberationand that he could not have taken P.W.2 to the hospital for treatmentas deposed by him.17. P.W.1-Amutha is said to be the person who gave the complaintbased on which, the case was registered. The complaint statementgiven by her has been marked as Ex.P1. The same was said to be givenat 4.00 p.m on the date of occurrence, namely 12.06.1998. Nothinghas been mentioned in the said complaint to the effect that shesustained any bleeding injury. The only averment made in thecomplaint in this regard is that Ayyammal assaulted her repeatedlywith hands. There is no averment to the effect that she sustainedany injury. On the other hand a wound certificate has been obtainedfor P.W.1 as if she had sustained a laceration measuring 2 cm x 1 cmx 1 cm on the left parietal region. As per the wound certificatemarked as Ex.P9, she was examined by P.W.10-Dr.Santha Arulmozhi atMettupalayam Government hospital on 13.06.1998 at 1.30 P.M. It hasalso been mentioned that she came to the hospital with a police memodated 12.06.1998. If at all she was given a police memo fortreatment in the hospital, what made her not to go to the hospital onthe very same day, is not explained. Furthermore, the informationfurnished to the Medical Officer, as per the contents of Ex.P9 isthat she was attacked by four persons with stick, knife and stone.It is quite contra to the evidence of P.W.1 herself. According to https://hcservices.ecourts.gov.in/hcservices/ her evidence, she was attacked by Ayyammal with hands only. Howeverbefore the Medical Officer she gave a statement that she was attackedwith stick, knife and stone. The same was the first attempt made bythe police and the members of P.W.2's family to show that they wereattacked by the accused. Totally contradictory versions have beenbrought by the evidence of P.W.1 and Ex.P9. This aspect was notproperly appreciated by the learned Trial Judge.18. Admittedly on the date of occurrence itself all the accusedwent to the very same police station at Karamadai and a case wasregistered based on the statement of the first accused Paulraj inCr.No.147/1998. P.W.12-Karuppan, the then Sub-Inspector of Police ofthe said police station has candidly admitted that such a case wasregistered and all the accused in this case were sent to MettupalayamGovernment Hospital with police memo for treatment. However, hewould state at the first instance that he was not aware of whathappened to the said counter case registered based on the complaintof A1-Paulraj. But in the very next sentence he would state that thecounter-case registered based on the complaint of Paulraj was closedas mistake of fact. However, he gave an evasive answer as to whetherany referred notice was given to the said Paulraj by answering thathe could not affirm and deny anything. It is a clear admission ofP.W.12 that in the counter case, the statement of all the injured whofigure as accused in the present case, were recorded by him whilethey were taking treatment in the hospital. But things seems to havebeen done in a dramatic way by the investigating officers in the caseon hand. It has been stated that the accused persons were arrestedon various dates and weapons were recovered based on their confessionstatements. According to the version of P.W.11, the first accusedPaulraj was arrested on 22.06.1998 and M.0.2 Aruval was recoveredunder Ex.P6. A2-Chenna Naicker and A4-Ayyammal were said to bearrested on 24.06.1998 and M.O.1 stick was said to be recovered underEx.P8-Mahazar on 24.06.1998. It is also admitted that M.O.1-stickwas also recovered from the very same place wherefrom M.O.2 aruvalwas recovered. But it is stated that they were recovered atdifferent times based on the statements of A1-Paulraj and A2-ChennaNaicker. 19. Furthermore, when it is the admitted case of the prosecutionthat from the date of occurrence all the accused persons were takingtreatment as in patients in government hospital, Mettupalayam 10 daysin case of Paulraj and 12 days in case of Chenna Naicker and Ayyammaland 14 days in case of Vasantha Mani before they were arrested. Thepolice did not take any steps to get them remanded by bringing theJudicial Magistrate concerned to the hospital. On the other hand,the witnesses examined on the side fo the accused, namely D.W.1 and 2have clearly stated that it were the accused persons who went to thepolice station at the first instance to lodge complaint; that theSub-Inspector instructed the Head Constable to record the statementof the first accused; that while recording of the statement was inprogress he received a phone call and went out and that on hisreturn, he gave memo for treatment and sent all the accused(appellants) to Mettupalayam government hospital for treatment. Ithas also been clearly stated by D.W.1 that police men were to be https://hcservices.ecourts.gov.in/hcservices/ placed on bandobust duty while the appellants were taking treatmentas in-patients in the said hospital. Under such circumstances, as anexample of clear concoction, the first investigating officer has comeforward with a story that he needed a person to identify the firstaccused Paulraj for arresting him when he was coming out ofGovernment Hospital, Mettupalayam on 22.06.1998. The name of theperson who is said to have identified the first accused-Paulraj hasnot been furnished by any of the witnesses. First appellant/firstaccused was said to be arrested on the date on which he wasdischarged from the hospital. Likewise other appellants were said tobe arrested at the hospital gate on the respective dates on whichthey were discharged from the hospital. Therefore, it is quiteobvious that the police were waiting for the appellants to bedischarged from hospital to arrest them. However, they seem to haveconcocted a story as if the first appellant was identified by anotherperson to be arrested by the Investigating Officer. All theseembellishments are made with a view to propound a theory ofconfession statement leading to recovery of the weapons. But theprosecution has miserably failed in such an attempt.20. A vital flaw found in the prosecution version is that thereis violation of police standing orders 588-A. As per the saidstanding order, when cases are filed as case and counter caseregarding the very same incident based on the complaint of rivalparties, both the cases must be investigated by one and the sameinvestigating officer simultaneously and the final report shouldcontain the result of the investigation in both the cases. In thiscase the counter case registered as crime No.147/1998 based on thecomplaint of the first appellant/first accused (Paulraj) has beentotally suppressed by the prosecution. Even when the same wasbrought to the notice of the court and the prosecution witnesses,especially the police officers, made evasive answers. Therefore, itis quite obvious that the prosecution witnesses including the policeofficers have made attempts to suppress the genesis of theoccurrence. It is the case propounded by the appellants throughD.W.1 and 2 that a panchayat was convened to question the proprietyof the act committed by P.W.2 by obliterating the ridge dividing theproperties of P.W.2 and the first appellant in which P.W.1 and hisfamily members not only refused to accept the verdict of thepanchayat and heed the advice of the panchayat but also attacked theappellants herein pursuant to which the first appellant gave thecomplaint leading to the registration of the counter case inCr.No.147/1998 and that D.W.1 being a politically influencial heinfluenced the Sub-Inspector of Police to register the complaint inthe instant case as the earlier case and the complaint of the firstappellant as the next case by concocting a story of attack on him andhis daughters by the appellants herein. D.W.1 and 2 have clearlystated that P.W.1 attacked the first appellant on his right thighwith the blunt portion of aruval; that P.W.3-Revathi squeezed thefirst appellant's testicles (scrotum) and that when the thirdappellant Vasantha mani tried to pull Revathi, she caused bleedinginjury on the right thumb of Vasantha mani by biting it with herteeth. https://hcservices.ecourts.gov.in/hcservices/

21. The prosecution has not come forward with any explanation asto how all the appellants sustained injuries. The injuries sustainedby the appellants leading to their treatment as in-patients for 10days, 12 days and 14 days respectively, have not been explained atall. On the other hand, the appellants have come forward with clearexplanation as to how they sustained injuries. As such, the theorypropounded by the appellants are more probable than the theorypropounded by the prosecution. When two views are possible, one infavour of the accused and the other in favour of the prosecution, theformer must be preferred. In this case, apart from the theorypropounded by the appellants being more probable than the story ofthe prosecution, there are more imponderables in the prosecutioncase, as pointed out supra. There are contradictions in theprosecution version. The statement given to the Medical officer wassought to be clarified by subsequent concoction and embellishment.All these factors will at least give rise to a reasonable doubtregarding the prosecution version. The benefit of which shalldefinitely go to the appellants/accused. If all these factors aretaken into consideration, this court has to necessarily come to theconclusion that the prosecution has miserably failed in proving itscase against the appellants and that the court below, on an erroneousappreciation of facts and law, has wrongly held the appellants to beguilty of the offences with which they stood charged and convictedthem. The conviction shall not stand the scrutiny of this court inthe appeal. The appeal deserves to be allowed and appellants shall beacquitted of all the charges giving benefit of doubt. 22. In the result this appeal is allowed and the judgment of thecourt below dated 16.05.2002 convicting the appellants is set aside.The appellants are acquitted of all the offences for which they wereprosecuted. The bail bonds executed by the appellants are cancelled.The fine amount remitted by them shall be refunded.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.asrTo1.The Additional District and Sessions Judge-cum-Fast Track Court No.4, Coimbatore2.The Judicial Magistrate,Mettupalayam.3.-do- Thro' The Chief Judicial Magistrate,Coimbatore.4.The Superintendent,Central Prison, Coimbatore.5.The Inspector of Police, Karamadai Police Station,Coimbatore Dist. https://hcservices.ecourts.gov.in/hcservices/

6.The Principal Sessions Judge,Coimbatore.7.The Public Prosecutor, High Court, Madras.8.The District Collector,Coimbatore.9.The Director General of Police, Madras.+ 1 CC to Mr.G.R.Swaminathan,Advocate,SR.16516Copy to : The Section Officer, Criminal Side, High Court, Madras.Crl.A.No.780 of 2002VSV(CO)EM/7.5