Sekar v. The State

The case of the prosecution, in brief, can be stated asfollows:-i) The appellant herein (A3), two other persons (A1 and A2) whowere prosecuted along with the appellant herein and the prosecutionwitnesses Velmurugan, Kunjithapadham, Pitchaiammal, Pandian, Chandrakasu and Gajendran (P.Ws.1 to 6) are the residents of P.PuthurVillage, Kattumannargudi Taluk, Cuddalore District. There was anillicit intimacy between the appellant herein (A3) and one Amudha, daughter-in-law of the elder brother of P.W.2-Kunjithapadham. Theappellant herein (A3) was warned by P.W.1-Velmurugan in this regard. On 14.07.1998 while P.W.1-Velmurugan was returning home afterfinishing the day's work, the appellant herein (A3) caused anaccident by dashing his cycle against P.W.1. The same was informedby P.W.1 to his elder brother Kunjithapadham (P.W.2) and his wifePitchaiammal (P.W.3). Thereafter P.Ws.1 to 3 went to the residenceof the village head (nattamai), met him at about 9.00 p.m on the sameday and started informing him of the misdeeds of the appellant herein(A3). ii) While they were thus narrating what happened, the appellantherein (A3), Dhanasingh (A1) and Murugavelu (A2) came to the saidplace with a common intention of causing death of P.W.2-Kunjithapadham.

The learned Judicial Magistrate No.1, Chidambaram took thefinal report on file as PRC No.14/2001, supplied copies of documentsunder Section 207 Cr.P.C. free of cost to the accused persons andcommitted the case for trial to the Sessions Court, CuddaloreDivision as the offence alleged was exclusively triable by a Court of Session. The learned Principal Sessions Judge, Cuddalore Division, Cuddalore took the case on file as S.C.No.148/2001 and made over thesame to the Additional District and Sessions Judge (Fast TrackCourt), Chidambaram for disposal according to law.

Apparently, there was a mistake in the final report submittedby the Investigating Officer. In the complaint as well as thestatement of witnesses, it had been stated that it was the appellantherein (A3) who caused the injuries by cutting P.W.2 with a knifewhile Dhanasingh (A1) and Murugavel (A2) caught hold of P.W.2 inorder to facilitate the act of the appellant herein(A3). TheInvestigating Officer (Inspector of Police) committed an error instating that it was A1 who cut P.W.2 with a knife and A2 and theappellant herein (A3) were the persons who caught hold of P.W.2.This mistake was noticed by the learned trial judge while framingcharges. Hence the learned trial judge has corrected the mistake andrightly framed a charge for an offence punishable under Section 307IPC (as the first charge) against the appellant herein (A3) and acharge for an offence punishable under Section 307 r/w 34 IPC (as the https://hcservices.ecourts.gov.in/hcservices/ second charge) against A1 and A2. All the accused persons pleadednot guilty and expressed their desire for having the case tried.

P.Ws.1 to 10 were examined, Ex.P1 to P8 were marked and M.O.1series were produced on the side of the prosecution in order to provethe charges framed against the accused persons. After recording theevidence adduced on the side of the prosecution, the accused personswere questioned under Section 313(1)(b) Cr.P.C. regarding theincriminating materials found in the evidence adduced on the side ofthe prosecution. They denied them as false and reiterated theirstand that they were not guilty. No witness was examined and nodocument was marked on the side of the accused persons.

After hearing the arguments advanced on either side, thelearned trial judge considered the evidence in the light of the saidarguments and upon such consideration, held that accused No.1 and 2 -Dhanasingh and Murugavelu were not guilty of the offence with whichthey stood charged. However, the learned trial judge held that theappellant herein (A3) was guilty of the offence punishable under Section 325 IPC instead of the offence under Section 307 IPC forwhich charge No.1 was framed against him, convicted him for theoffence punishable under Section 325 IPC and sentenced him to undergorigorous imprisonment for a period of seven years and to pay a fineof Rs.500/- for the above said offence. The learned trial judge hasalso imposed a default sentence of simple imprisonment for threemonths in case of commission of default in payment of the above saidfine.

Aggrieved by and challenging the conviction and sentence, theappellant herein (A3) has come forward with the present appeal under Section 374 Cr.P.C on various grounds set out in the Appeal petition.

The point that arises for consideration in this appeal is asfollows:-"Whether the trial court is right in convicting theappellant (A3) and sentencing him to undergo a rigorousimprisonment of seven years and to pay a fine of Rs.500/-along with a default sentence of three months simpleimprisonment for an offence under Section 325 IPC? "

Mr.R.Srinivas, learned counsel for the appellant advancingarguments on behalf of the appellant, made the following submissions:-i) The judgment of the trial court convicting the appellant andsentencing him to undergo seven years rigorous imprisonment and topay a fine of Rs.500/- for an offence punishable under Section 325IPC is against law, weight of evidence and probabilities of the case. The court below committed an error in awarding maximum sentence of 7years rigorous imprisonment for the offence punishable under Section https://hcservices.ecourts.gov.in/hcservices/ 325 IPC. The prosecution has miserably failed to prove its caseagainst the appellant beyond reasonable doubt. There was a delay inregistering the case and also in sending the FIR to the concernedJudicial Magistrate and the same was not adverted to by the trialCourt. There was utter confusion in the prosecution case as revealedfrom the final report submitted by the Investigating Officer.

This court heard the submissions made by the learnedGovernment Advocate (Crl. Side) representing the respondent as areply to the above said submissions made by the learned counsel forthe appellant and paid its anxious considerations to the same. Thematerials available on record were also perused by this court.

The third accused before the trial court is the appellantherein. He was prosecuted along with his father and brother, whofigured as A1 and A2 respectively. According to the prosecutioncase, the appellant herein (A3) had developed illicit intimacy withone Amutha, wife of Sivanesan and he was reprimanded for the same byP.W.1-Velmurugan and his brother, namely P.W.2-Kunjithapadham, whichresulted in an enmity between the appellant herein (A3) and P.Ws.1and 2. It is the further case of the prosecution that on 14.07.1998at about 7.00 p.m, while P.W.1 was returning home, the appellantherein (A3) hit him with his cycle and the said incident was reportedto the village nattamai - Govindasamy at his residence at about 9.00p.m on the same date. It is the case of the prosecution that whilethey were narrating the earlier incident to Nattamai Govindasamy, theappellant along with his father and brother, who were arrayed asaccused 1 and 2, came to the residence of said nattamai and theappellant herein (A3) attacked P.W.2 with a knife on head, left handand back repeatedly, while the other two persons (A1 and A2) werecatching hold of P.W.2 in order to facilitate the attack made by theappellant herein (A3). The alleged illicit intimacy of the appellantherein (A3) with one Amudha, for which the appellant was reprimandedby P.W.1 and others was said to be the motive for the occurrence.

Sivanesan, the husband of the said Amudha is a closerelative of P.Ws.1 to 3. P.W.2 has admitted that Amutha is hisbrother's daughter-in-law. P.Ws.1 to 3 have stated in theirevidence that the appellant Sekar (A3) had developed an illicitintimacy with Amutha for which he was reprimanded by P.Ws.1 and 2which resulted in an enmity between the appellant herein (A3) andP.Ws.1 and 2. Though the said witnesses have made clear statementsin their evidence in this regard, they were not cross-examined by thecounsel for the accused in the trial court regarding the allegedmotive. Therefore the evidence of P.Ws.1 to 3 to the effect thatthere was an enmity between the appellant herein (A3) as P.Ws.1 and 2had warned the appellant herein (A3) not to continue the illicitintimacy he had with Amutha, stand unchallenged and uncontroverted. Therefore, we can safely come to a conclusion that there areunchallenged and uncontroverted evidence to show that there was https://hcservices.ecourts.gov.in/hcservices/ enmity between the appellant A3 and and P.Ws.1 and 2 and the samewould have provided motive for the appellant and other accusedpersons to attack P.W.2.

But proof of motive alone shall not be enough to prove thecharge against the accused. Proof of motive is one of thecircumstances towards the proof of the occurrence. Motive is adouble edged weapon capable of being used for and against theprosecution. Therefore we have to consider the evidence adduced onthe side of the prosecution relating to the occurrence regardingwhich the case was registered.

As per the prosecution theory, the occurrence in which P.W.2was attacked was preceded by a previous occurrence which took place acouple of hours earlier. It is the case of the prosecution that on14.07.1998 at about 7.00 p.m, while P.W.1 was returning home aftercompleting the day's work, the appellant herein (A3) hit him with hiscycle. Excepting the testimony of P.W.1, there is no other directevidence in proof of the said previous occurrence. However, P.Ws.2and 3 have supported the evidence of P.W.1 in this regard by deposingthat P.W.1 informed P.Ws.2 and 3 of the above said previousoccurrence, pursuant to which P.Ws.1 to 3 went to the residence ofnattamai Govindasamy to inform him. According to the evidence ofP.Ws.1 to 3, while they were narrating the previous episode to Govindasamy, the appellant herein (A3) and the other accused persons(A1 and A2)came there and attacked P.W.2. In this regard it ispertinent to note that the above said nattamai Govindasamy has notbeen examined on the side of the prosecution as a witness. On theother hand his son Pandian has been examined as P.W.4. P.W.4 hasstated in his evidence that his father Govindasamy was not thenattamai of the village for about 10 years and that he kept himselfaway from all problems of the villagers for the said period of over10 years. The occurrence is said to have taken place on 14.07.1998.P.W.4 was examined on 06.03.2002 within three yeas thereafter. AsP.W.4 did not support the prosecution case, he was treated hostileand cross-examined by the public prosecutor. Even then no pointuseful to the prosecution case could be elicited from him.

Similarly P.W.5-Chandhirakasu has not deposed anythingregarding the previous occurrence or the overt acts on the part ofthe appellant and the other accused persons. P.W.5 is a closerelative of P.Ws.1 to 3, as seen from the evidence of P.W.1. Headmits that P.W.5-Chandhirakasu is the son of his senior paternaluncle. P.W.6-Gajendran is not an eye witness for any of theoccurrences. He has been examined only as an attestor of the Observation Mahazar. As he has simply stated that he affixed hissignature as per the direction of the police and pleaded that he didnot know the contents of the document which was signed by him, hissignature alone has been marked as Ex.P2 whereas the Mahazar has beenmarked as Ex.P5 through the Investigating Officer. P.W.1, in his https://hcservices.ecourts.gov.in/hcservices/ cross examination, would admit that the alleged nattamai Govindasamyand his son Pandian (P.W.4) were the persons interested in thewelfare of P.Ws.1 to 3.

Ex.P1 has been produced as the complaint lodged by P.W.1.The said complaint is said to have been given on 15.07.1998 at about8.30 a.m. The occurrence is said to have taken place at 9.00 p.m on14.07.1998. There is a gap of 11 ½ hours between the time at whichthe occurrence allegedly took place and the time of lodging of thecomplaint. No acceptable reason has been assigned for such aninordinate delay. In Ex.P4-First Information Report, at column 7, ithas been noted that the delay was caused by the de-facto complainant. Why such a delay was caused? – has not been explained anywhere in the First Information Report or in the complaint.

The injured P.W.2 was admitted in the Government Hospital, Chidambaram at 1.35 a.m on 15.07.1998 and was thereafter referred tothe Government Hospital, Cuddalore on the very same day for furthermanagement. There is no evidence as to the time at which he wasadmitted in the Government Hospital, Cuddalore. When was hedischarged from the said hospital? – is also not known. P.W.2 alonehas stated that he took treatment there for seven days. On the otherhand, the alteration report Ex.P7 seems to have been prepared andsent to the court on 21.07.1998. Apart from the unexplained delay of11½ hours in lodging the FIR, there is also a delay in the FIRreaching the court. The complaint marked as Ex.P1 and the First https://hcservices.ecourts.gov.in/hcservices/ Information Report marked as Ex.P8 reached the court only at 10.30a.m on 16.07.1998. It took 26 hours from the moment the case wasallegedly registered for the complaint and FIR to reach the JudicialMagistrate. In effect, the total delay (delay in lodging thecomplaint and the delay in the FIR reaching the court) comes to 37½hours. No reason is forthcoming as an explanation for the saiddelay.

P.W.1 in his cross-examination admits that Sethiathopepolice station is on the way from P.Puthur; that they crossedSethiathope police station and went to Chidambaram hospital and thathowever they did not chose to inform the police at Sethiathope policestation on their way to the hospital. An attempt has been made on theside of the prosecution to show that P.W.1, with the intention ofsaving the life of P.W.2, chose to go to the Government hospital withP.W.1 to get him admitted there for treatment even without informingthe police who were present in the police station, which was on theway to the hospital; that he chose to lodge a complaint the next daymorning at about 8.30 a.m after returning form the hospital and thatis why there was a delay of 11 ½ hours in lodging complaint with thepolice setting the criminal law in motion. P.W.1 in his evidence hasstated that the Medical officer at Chidambaram Government Hospitalreferred P.W.1 to the Government Hospital, Cuddalore and afteradmitting P.W.2 in the Government Hospital, Cuddalore, he went to Sethiathope police station on 15.07.1998 at about 8.00 a.m and gaveEx.P1-complaint in writing.

Ex.P5-Observation Mahazar is said to have been prepared at1.00 p.m on 15.07.1998. Nothing is there in the observation mahazarto show that P.W.1 identified the place of occurrence to P.W.8.G.Gajendran and Kolanchinathan were the attestors of the observationmahazar. Out of them, Gajendran alone has been examined as P.W.6.The other witness, namely Kolanchinathan has not been examined. EvenP.W.6 has not supported the case of the prosecution. According toP.W.8, after examining P.W.1 at the Government Hospital, Cuddalore, he went to the place of occurrence along with P.W.1 and prepared the Observation Mahazar and rough sketch in the said place in thepresence of witnesses. He has not stated in his evidence the time ofpreparation of Ex.P5-observation mahazar. However, in Ex.P5, it hasbeen noted that the same was prepared at 1.00 p.m on 15.07.2008.P.W.6-Gajendran would state that his signature was obtained by thepolice at 5.00 p.m when he was standing near the house of Govindasamy. He has also stated that without knowing the contents ofthe document, he affixed his signature as requested by the police. That is the reason why his signature in the observation mahazar alonehas been separately marked as Ex.P2. Therefore, there is areasonable suspicion as to whether Ex.P5-observation mahazar wouldhave been prepared at the time noted therein.

P.W.3 in the first part of her evidence would submit that, after the occurrence, her husband was taken to hospital and she alsowent to the Government Hospital, Chidambaram; that on her arrival at Chidambaram Government Hospital, she was informed that her husbandhad been taken to Government Hospital, Cuddalore and that thereaftershe was examined by the police. She would state in her cross-examination that she did not go to the hospital along with herhusband. The evidence of P.W.3 is not clear as to the place at whichshe was examined by the Investigating Officer. On the other hand, according to her evidence, she was examined by the police at 5.00 p.mone day after the occurrence. According to P.W.8, she was examinedat 1.00 p.m on 15.07.1998 at the place of occurrence. The vast https://hcservices.ecourts.gov.in/hcservices/ difference found in the evidence of P.W.8 and P.W.3 regarding thetime and place at which P.W.3 was examined by the police will alsocreate a reasonable doubt in the prosecution case that some kind ofconcoction should have been made.

It is a fact worth mentioning that except the X-rays takenfor P.W.2 at Cuddalore Government Hospital, no other material objecthas been produced on the side of the prosecution. It is the case ofthe prosecution that P.W.2 was cut with a knife indiscriminately onthe head, right hand and back of the chest and bleeding injuries werecaused. If it is so, the Investigating Officer could have foundblood stained earth in the place of occurrence. But no blood stainedearth was recovered and sent to the laboratory for examination. Theweapon allegedly used by the appellant (A3) was also not recovered. This court is well aware of the position that the mere inability onthe part of the Investigating agency to recover the weapon shall notbe fatal to the prosecution case. On the other hand, even thematerial objects allegedly handed over to the police and recovered bythe police were not sent to the laboratory for examination. P.W.5 isnone other than the son of senior paternal uncle of P.W.2. P.W.5 hasdeposed to the effect that the blood stained cloths of P.W.2 wererecovered by the police from the hospital. But the same was not sentto the laboratory for examination. Nor were they produced asmaterial objets. In fact, such a recovery has not been shown by theprosecution. Similarly, it has not been stated either in thecomplaint or in the statement of P.W.1. as to what happened to theknife used by the appellant. An improvement has been sought to bemade by P.W.1 while deposing before the court by stating that theaccued left the place taking the weapons with them. The saidcontradiction has been clearly elicited by the learned defencecounsel during cross-examination of P.Ws.1 and 8.

It is the evidence of P.Ws.1 and 2 that while A1 and A2caught hold of P.W.2, the appellant herein/A3 cut him with a knife onthe back of the chest, head, forehead and left hand. It is theirassertion that the appellant cut him with a knife five times (twiceon the head, twice on the left hand and once on the back side of thechest) and thus caused five cut injuries. P.W.3 also would statethat her husband sustained injuries on the head, left hand and backside of the chest. But in Ex.P1-complaint it has been bluntly statedthat the appellant repeatedly cut P.W.2 with a knife on head, lefthand and back side of the chest. The evidence of P.W.3 becomes quiteunbelievable and unreliable in the light of the evidence of P.W.7-Dr.Ravichandran and Ex.P3-wound certificate. It was projected by theprosecution that the injured P.W.2 was unconscious and hence hisstatement could be recoeded by the police only after 7 days. However, there is nothing in Ex.P3 to suggest that P.W.2 wasunconscious when he was admitted in the Government Hospital, Chidambaram. The accident register prepared at Government Hospital, Cuddalore was not produced. The Medical Officer who admitted P.W.2 https://hcservices.ecourts.gov.in/hcservices/ in Government Hospital, Cuddalore for treatment was not examined as awitness on the side of prosecution. It is seen from the evidence ofP.W.7 that it was P.W.2 who informed P.W.7 that he was attacked bythree known persons in front of the house of one Govindasamy withweapons like knife and stick. In Ex.P3-wound certificate also it hasbeen noted as follows:-"Patient alleged to have been assaulted by three knowpersons on 14.07.1998 at about 9.00 p.m with fj; jp. fHp infront of one Govindasamy's house, P.Puthur. "

Furthermore the injuries found on the witness P.W.2 do notcoincide with the evidence of P.Ws.1 to 3. One cut injury was foundon the forehead above the left eyebrow and two injuries (one alaceration and another a cut injury) were found on the left forearmof P.W.2. According to the evidence of P.Ws.1 and 2, totally fivecut injuries were inflicted by the appellant/A3, one on the head, twoon the forehead, two on the left hand and one on the back side of thechest. But as per Ex.P3, P.W.2 sustained totally three injuriesalone, one on the forehead and two on the left hand. No injury wasfound on the back of the chest. The second injury allegedlyinflicted on the head was also not found. Even regarding theinjuries found on the left hand, both could not have been caused byone and the same weapon, as one was a cut injury and the other was alaceration.

All these aspects, if considered in proper perspective, asrightly pointed out by the learned counsel for the appellant, willlead to the inevitable conclusion that there are reasonablesuspicions regarding the prosecution version as to the manner inwhich P.W.2 sustained injuries and the date and time of lodging thecomplaint setting the law in motion. It is obvious from the evidenceof P.W.8 that within one hour after the registration of the case, hecould reach Cuddalore to start his investigation by examining thewitnesses present in the said Hospital. The court of the JudicialMagistrate No.2, Chidambaram is still nearer to the police station. But it is surprising to note that the FIR reached the JudicialMagistrate with a delay of 26 hours after the registration of thecase. By the time the complaint and the FIR reached the learnedJudicial Magistrate concerned, the first Investigating Officer, namely P.W.8 had completed almost 75% of the investigation. It hasbeen pointed supra that there was a delay of 11 ½ hours from the timeof occurrence in lodging the complaint and that there was a furtherdelay of 26 hours from the time of registration of the case in theFIR reaching the Judicial Magistrate concerned. The manner in whichthings have been done and documents have been brought into existencein this case will show that every attempt has been made to make upthe time gap to explain the delay, but in futility. https://hcservices.ecourts.gov.in/hcservices/

The contradictions and the improbabilities found in theevidence adduced on the side of the prosecution which have beenpointed out supra, will at least give rise to a reasonable suspicionthat the complaint received earlier in point of time could have beenburked or that the time gap was utilised for deliberation whichresulted in concoction of the prosecution case against the accusedand also embellishment of the prosecution story with improvedversion. All those defects and improbabilities pointed out suprawill show that the evidence of P.Ws.1 to 3 have not passed the testof careful scrutiny. The only evidence available against theappellant and other accused persons are the testimonies of P.Ws.1 to3. The court below has chosen to disbelieve their evidence solely onthe ground that they happened to be interested witnesses and if thetest of careful scrutiny would be applied to their evidence, the caseof the prosecution supported by their evidence should be disbelievedso far as the charge as against A1 and A2 were concerned.

In fact, the testimonies of P.Ws.1 to 3 so far as thealleged overt acts committed by A1 and A2 are quite clear andunambiguous, whereas their testimonies in respect of the overt actcommitted by the appellant herein/A3 are not so unambiguous as theyare contra to medical evidence regarding the injuries sustained byP.W.2. Their evidence regarding the weapons used were not inconformity with the medical evidence, namely Ex.P3-wound certificate, in which it has been stated that the Medical officer was informedthat P.W.2 was attacked with knife and sticks. No witness has statedin his/her evidence that the weapon used by the appellant herein/A3was a bill-hook/sword (mUths;). However, in the charge-sheet theweapon has been scribed to be a knife (mUths;). No one has given thecorrect description of the said weapon. On the other hand P.Ws.1 to3 have clearly deposed regarding the overt acts committed by theaccused No.1 and 2 by stating that both of them caught hold of P.W.2while the appellant herein/A3 attacked him with a knife. When theovert act committed by A1 and A2 were clearly spoken to by P.Ws.1 to3, the court below has chosen to disbelieve their evidence as againstA1 and A2 only because of the discrepancies pointed out supra. Whenthat is so, this court is at a loss to understand how the court belowhas applied a different yardstick to test the veracity of P.Ws.1 to 3and reliability of their evidence so far as the allegations madeagainst the appellant herein/A3. There cannot be two differentyardsticks to test the veracity of the very same set of witnesses. In this case, as pointed out supra, when the court has chosen todisbelieve the evidence of P.Ws.1 to 3 regarding the overt actscommitted by A1 and A2, the trial court should have come to theconclusion that the story of the prosecution relating to the chargeagainst the appellant herein/A3 was also not proved beyond reasonabledoubt and that the appellant herein/A3 was entitled to be acquittedof even for a lesser offence than the offence for which he wasprosecuted, giving benefit of doubt. https://hcservices.ecourts.gov.in/hcservices/

Viewed from any angle, this court comes to the conclusionthat the judgment of the trial court convicting the appellantherein/A3 and punishing him for an offence punishable under Section325 IPC instead of Section 307 is defective, infirm, unsustainable inlaw and hence liable to be set aside in this appeal. Resultantly, the appellant herein/A3 shall be totally acquitted of the said chargegiving the benefit of doubt.

In the result, the appeal succeeds and the same is allowed. The conviction of the appellant herein/A3 for an offence punishableunder Section 325 IPC and the sentence imposed by the court below areset aside and the appellant herein/A3 is totally acquitted of theoffence with which he stood charged, namely an offence under Section307 IPC holding him not guilty of even a lesser offence punishableunder Section 325 IPC. The fine amount, if any paid by the appellantshall be refunded to him.sd/-Asst. Registrar/true copy/Sub Asst. Registrarasr/To1. The Additional District Sessions Judge, Chidambaram.2. -do- Through The Principal Sessions Judge, Cuddalore.3. The Judicial Magistrate No.1, Chidambaram.4. -do- Through The Chief Judicial Magistrate, Cuddalore.5. The Superintendent, Central Prison, Cuddalore. 6. The District Collector, Cuddalore.7. The Director General of Police, Mylapore, Chennai.8. The Inspector of Police, Sethiathope Police Station.9. The Public Prosecutor, High Court, Madras. Crl.A.No.821/2002KA (CO)GSK 21.07.2009.