BAIL SLIP The Petitioner/Accused viz., Mr.Sreenivasan be and hereby was directed to be released on bail vide order dated 12.07.2004 in CMP No.7834 of 2004 in Crl.A.No.1493 of 2003. IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated 09.12.2011 CORAM: THE HONOURABLE MS.JUSTICE K.B.K.VASUKI CRL.A.No.1493 of 2003 M.Sreenivasan ... Appellant/Accused Vs. The State of Tamil Nadu by Inspector of Police, G-2, Puthumanthu Police Station, The Nilgiris. ... Respondent/Complainant PRAYER: This Criminal Appeal is filed under Section 374(2) of Cr.P.C. as against the judgment and conviction passed by the Sessions Court, Udhagmandalam, The Nilgiris, in S.C.No.1 of 2003, dated 24.06.2003, for an offence punishable under Section 307 of the Indian Penal Code sentencing to undergo 4 years rigorous imprisonment and to pay fine of Rs.2,000/- in default of which 6 months imprisonment. For Appellant : Ms.Bhagya for M/s.Lenin & Bhagya For Respondent : M/s.C.Iyyappa Raj Government Advocate (Crl. Side) J U D G M E N T This appeal is filed by the accused against his conviction and sentence for the offence under Section 307 I.P.C. 2.The case of the prosecution is as follows:- PW3 and PW1 are father and son and the accused is brother's son of PW3. PW1, PW3, PW4 and accused are the residents of Kulisolai village and both PW1 and accused are drivers by employment under neighbouring land owners. At the relevant point of time, PW1 and PW3 on the one hand and the accused on the other hand were examined towards each other and they had a quarrel prior to 25.01.2002 on which date, PW3 and one Marappan were conversing with each other in front of the house of the accused at about 8.00 P.M. At that time, PW1 came there and parked his Jeep opposite to the house of the https://hcservices.ecourts.gov.in/hcservices/ accused and started walking via house of the accused. At that time the accused shouted at PW1, resulting in wordy quarrel between each other and PW1 and PW3 attempted to separate them. The accused suddenly went inside the house and locked the door and picked up a bottle burning lamp with lid (jphp) of the same and threw the burning bottle lamp against PW1, through the window and the bottle hit at PW1 and broken into pieces and kerosene poured on him and sustained burn injuries. 2.On seeing, PW1, PW3 put one blanket spread (rhf;if) on him to put off the flames. Despite the same, his shirt was burnt and he sustained injuries. P.W.1 was immediately taken to Government Hospital, Ooty by PW3-father, where P.W.1 was treated by the P.W.2- Medical Officer at 9.00 p.m. where PW1 told the Doctor that he was attacked by one known person with bottle lamp and the Medical Officer examined him and found him sustaining 15 to 20% of burn injuries and the same was entered in the Accident Register and injured was admitted for further treatment. Due intimation was sent by P.W.5-Sub Inspector of Police to the concerned Magistrate Court and Inspector of Police, Puthumanthu Police Station and P.W.5-Investigating Officer, went to Government Hospital and met PW1-Ramesh and obtained his statement between 10.30 and 11.00 P.M. and after recording his statement, he returned to the Police Station and registered the case in Crime No.17 of 2002. On 26.1.2002, Investigating Officer also went to the scene of occurrence and prepared observation mahazar and rough sketch. Two witnesses viz., Marappan and Rajan were examined and P.W.5-recovered broken glass pieces, burnt shirt piece, lid ( jphp ) under seizure mahazar in the presence of witnesses Marappan and Rajan. P.W.5 also recorded the statement given by them in the scene of occurrence and P.W.5 had also obtained further statement from P.W.1/injured in the hospital and further investigation was taken by P.W.6-Inspector of Police, who commenced his further investigation on 28.01.2002. 3.P.W.6-Inspector of Police, in the course of his further investigation, met the injured on 28.1.2002 at 9.00 a.m. in the hospital and obtained statement from him. He also recorded the statement of independent witnesses and collected the wound certificate. P.W.6 also recorded the statement of Medical Officer and completed his investigation and after completion of investigation, he filed the charge sheet against the accused under Section 307 IPC. 4.The case was taken up by the concerned Judicial Magistrate in PRC.NO.6 of 2002 and the same was committed to the District and Sessions Court and thereafter, the District and Sessions Court, Ooty has taken the same on file as S.C.No.1 of 2003 and the trial court framed the charges against the accused for the offence under Section 307 IPC. The prosecution in order to prove the guilt of the accused, examined the injured, his father and neighbour-cum-cousin, Medical Officer attached to Government Hospital, Ooty, Sub-Inspector of https://hcservices.ecourts.gov.in/hcservices/ Police who registered and held major part of investigation and Inspector of Police who also held part of investigation and filed the charge sheet as PW1 to PW6. The prosecution also produced the complaint, FIR, observation mahazar, rough sketch, accident register, wound certificate, alteration report, seizure mahazar as Exs.P1 to P8, besides burnt shirt piece, burnt lid, burnt glass pieces as M.Os.1 to 3. 5.The accused was questioned under Section 313 Cr.P.C. about the incriminating substance against him which were available in the evidence of prosecution witnesses. The accused denied the same. The wife of the accused was examined as DW1, but the same was omitted to be mentioned in the list of witnesses attached to the lower court judgment. The trial Court on the basis of the available evidence, believed the prosecution version and disbelieved the defence raised by the accused as well as DW1 and found the accused guilty of the offence under Section 307 IPC and convicted and sentenced him as referred to above. Aggrieved against the same, the appellant-accused preferred the present appeal before this Court. 6.Heard the rival submissions of both sides. 7.The fact that P.W.1 and P.W.3 are father and son by relationship and the sole accused was his first Cousin and they were on inimical terms and on 25.01.2002, the accused on one hand and P.W.1 and P.W.3 on the other hand had wordy quarrel in front of the house of the accused and in the course of the said wordy quarrel, the accused went inside his house and locked the door inside are not denied. It is also not in dispute that P.W.1 was hit by kerosene burning bottle and kerosene poured on him and he sustained burn injuries and he was immediately taken to Government Hospital and admitted for further treatment and intimation was sent to the Sub Inspector of Police of Puthumanthu Police Station, who obtained statement from P.W.1. P.W.2 Doctor, attached to the Government Hospital has spoken about the injuries sustained by P.W.1. But that by itself will not go to automatically prove the complicity of the accused in the commission of offence charged against the accused and the burden is on the prosecution who is to prove the same beyond reasonable doubt. In this case, the prosecution sought to establish the guilt of the accused through (1) oral evidence of P.W.1, P.W.3 and P.W.4, (2) Medical Evidence regarding the nature of injuries sustained by P.W.1 and (3) Seizure of articles from the scene of occurrence. 8.The learned counsel for the appellant/accused has sought to question the correctness of the order of conviction recorded by the trial Court by drawing the attention of this Court to the unreasonable and unexplained delay in sending the FIR to the court concerned and serious inconsistency and material contradictions in the evidence of prosecution witnesses about on material aspects. https://hcservices.ecourts.gov.in/hcservices/ 9.As far as the oral evidence of P.W.1, P.W.2 and P.W.3 are concerned, P.W.1 deposed about the act of assault made by the accused and about his sustaining injury, P.W3 was examined as one of the eye witnesses to the occurrence, P.W.4 was examined as one of the eye witness to the occurrence cum observation mahazar witness. In this regard, this Court is of the view that the evidence of P.W.4 about his presence in the scene of occurrence is very doubtful and his evidence regarding the occurrence need not be believed mainly on the ground that his presence is no way spoken by other material the witnesses, i.e. PW.1 and P.W.3. Had it been true that P.W.4 was actually present, he would have attempted to save his cousin brother P.W.1 and his presence would have been noticed by P.W.1. In that event, P.W.1 and P.W.3 would not have consciously omitted to mention his presence, in the scene of occurrence either in the complaint or in the witness box. The omission on the part of P.W.1 and P.W.3 to say about P.W.4's presence in the scene of occurrence would raise a very serious doubt in this regard, as such, oral evidence of P.W.4 is not seriously relied on. 10.When the parties are on inimical terms, their evidence shall only be appreciated with great care and caution. Both P.W.1 and P.W.3, categorically stated that the object used for act of assault was the bottle lamp with kerosene and with "jphp" and jphp was burnt and bottle was thrown through the window from inside his house. This window in the house of accused is referred in Ex.P4 and P7 -rough sketch and observation mahazar respectively. It is also spoken by P.w.4, who is one of the neighbour of the disputing parties that the window in question has grills with glass panel. It is hardly believable that any burning object could have been thrown through grills of the window and neither the observation mahazar nor rough sketch or the oral evidence of P.W.4 and Investigating Officer have explained this aspect. Further, the prosecution witnesses do come forward with different version. The nature of the object used is mentioned as Kerosene, Petrol bottle and also as "Petrol lamp" in Ex.P4. In Ex.P1-Complaint it was referred to as Petrol lamp and in P7 – Accident Register, it is mentioned as bottle Kerosene lamp. But what is allegedly seized under Ex.P5 Seizure Mahazar is burnt collar part of the shirt, burnt white cloth and burnt glass pieces. Further, when P.W.1 and P.W.3 say that the bottle hit at the forehead and he sustained injury, evidence of P.W.1 and the medical evidence adduced by P.W.2 does not support the same. There are senious material contradictions in the evidence of prosecution witnesses about the nature of the object allegedly used in the commission of offence and the corresponding injuries and also the manner of assault. As far as the evidence of D.W.1, who is none other than the wife of the accused is concerned, her presence inside the house of the accused which is admitted by P.W.1 and P.W.3 need not be doubted. The defence raised by the accused which is sought to be established by D.W.1 is that P.W.1 and P.W.3 came to their house and created a problem and at that https://hcservices.ecourts.gov.in/hcservices/ time P.W.3 was in custody of firestick and the same hit at P.W.1 and he sustained burn injuries. 11.In this context, it is relevant to point out that the failure of prosecution to send any of the material objects for chemical analysis to ascertain as to whether it contains smell of Kerosene or petrol. Such failure in the light of the evidence of D.W.1 would probablise the defence raised on the side of the accused and also raises a serious doubt about the origin of the occurrence. Though P.W.1 and P.W.3 categorically admitted the presence of Marappan and his assistant along with P.W.3, he was not brought into the witness box remains unexplained. The prosecution has thus for the reason best known to the prosecution withheld material evidence, whereas P.W.4 is sought to be introduced as one of the independent eye witnesses in the occurrence. This Court in the foregoing paragraphs discussed as to how the evidence of P.W.4 cannot be believed in support of the prosecution case. 12.Another serious flaw in the prosecution case as rightly pointed out by the learned counsel for the appellant is the delay in sending FIR to the concerned Judicial Magistrate Court. P.W.1 was allegedly sustained injury on 25.01.2002 at about 8.00 p.m. and according to P.W.1 and P.W.5, the Sub Inspector of Police who registered the case, recorded the complaint by way of statement between 10.30 and 11.00 p.m. from P.W.1 Ramesh, while he was under treatment in the hospital, whereas, the complaint is sent to the Judicial Magistrate Court, only at 10.00 a.m. on 28.01.2002. There is no explanation either from P.W.5 Sub Inspector of Police, who held major part of investigation and P.W.6 Inspector of Police who completed the investigation and filed the charge sheet. Though P.W.5 has in the course of cross examination, categorically admitted that he originally sent the FIR to the concerned Judicial Magistrate on 26.01.2002, no witness was examined for the delay in reaching the FIR to the Court on 28.01.2002. Such delay coupled with other material contradictions and serious inconsistency and the act of commission or omission on the part of the prosecution, Investigating Officer, as discussion above would throw very serious doubt about the prosecution case regarding the involvement of the accused in the commission of offence in the manner as spoken by the persecution. The trial Court without duly considering the aspect as discussed by this Court simply believed the oral evidence of P.W.1 and P.W.3, who are son and father and found the accused guilty of the offence and convicted him. In my considered view, the trial court erred in passing the conviction by overlooking the material contradictions and without duly considering other acts of commissions and omissions on the part of the Investigating Officers which has resulted in an erroneous judgment of conviction and miscarriage of justice and the judgment of the trial Court is to be hence interfered with. 13.In the result, https://hcservices.ecourts.gov.in/hcservices/ The appeal is allowed and the judgment of conviction and sentence imposed on the accused dated 24.06.2003 made in S.C.No.1 of 2003 on the file of the District and Sessions Court, Udhagmandalam, @ Nilgiris, is hereby set aside and the accused is found not guilty of the offence and; he is acquitted and the bail bond if any executed by the accused shall stand cancelled and the fine amount, if any, paid by the accused shall be refunded to the accused. Sd/- Assistant Registrar(CS-IV) Dated: 03.04.2014 //True Copy// Sub Assistant Registrar To 1.The Judicial Magistrate Udhagamandalam, Nilgiris. 2.Do The Chief Judicial Magistrate, Nilgiris @ Udhagamandalam. 3.The Sessions Court Udhagamandalam. 4.The Inspector of Police, G-2, Puthumanthu Police Station, The Nilgiris. 5.The Office-in-Charge Sub Jail, Udhagamandalam. 6.The Collector Nilgiris. 7.The Director General of Police Mylapore, Chennai. 8.The Public Prosecutor High Court, Madras. 1 CC to M/s.Lenin & Bhagya, Advocate SR.No.75212 CRL.A.No.1493 of 2003 KJI(CO) JJM (02.04.2014) https://hcservices.ecourts.gov.in/hcservices/