IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 18.10.2006 CORAM: THE HON'BLE MR. JUSTICE P.D. DINAKARAN AND THE HON'BLE MR. JUSTICE M. THANIKACHALAM CRL.A.NO.1393 OF 2004 Ramaraj ..Appellant/ Accused -2 vs. The Inspector of Police Padalur Police Station, Cr.No.179 of 2002 ...Respondent/ Complainant Appeal filed under Section 374 Cr.P.C. against the Judgment in S.C.No.60/2003 dated 19.11.2004 passed by the District Sessions Judge, Perambalur. For Appellant : Mr. AR.L. Sundaresan Senior Counsel for Mrs. A.L. Gandhimathi For Respondent : Mr. N.R. Elango Addl. Public Prosecutor. J U D G M E N T M. THANIKACHALAM,J. The appeal is directed against the Judgment in S.C.No.60/2003 on the file of the District Sessions Judge, Perambalur, wherein A- 2/appellant was convicted and sentenced along with the first accused, under Sections 452, 324 and 302 I.P.C. 2. The case came to be filed at the instance of the respondent herein against the 2nd accused/appellant and two others alleging, that all the three have made preparation for assaulting one Thangavel and his family members, trespassed into the Kattukottagai, farm house of Thangavel on 12.9.2002 at about 11.30 p.m., that all of them have assaulted Thangavel, his wife, their daughter in law-Jayalakshmi, that with the intention to commit murder, A-1 and A-2 assaulted https://hcservices.ecourts.gov.in/hcservices/ Jayalakshmi over her head causing head injuries, that in view of the head injuries sustained, despite treatment, Jayalakshmi died on 18.9.2002 at about 6.00 p.m., that A-3 in furtherance of the common intention acted along with other two accused, that they have also criminally intimidated all the inmates of the house and therefore, they should be dealt with under Section 452, 326, 324, 302, 302 r/w 34 and 506(ii) I.P.C. 3. The learned Sessions Judge, perusing the records and the other materials produced, satisfied prima facie and therefore, framed charges against the accused, but all the accused refused to plead guilty, when questioned, resulting trial, examining the witnesses. 4. On behalf of the prosecution, 16 witnesses have been examined seeking aid from 25 documents and M.Os.1 to 9. On behalf of the defence, Ex.D1 was marked. 5. The evaluation of the above materials, in the touchstone of credibility, brought to surface the guilt of A-1 & A-2 alone, whereas it failed to prove the guilt of A-3. The learned Sessions Judge, while assessing the evidence, came to the conclusion, that the motives projected by the prosecution, for the commission of the offence by the accused are proved, though different for each accused, that the oral evidence of P.Ws.1 & 2 supported by the oral evidence of P.Ws.5 & 6 proved the guilt of A-1 and A-2 alone beyond all reasonable doubt, though originally the injured have reported to the doctor that they have been assaulted by one known person and two unknown persons, that only due to the head injuries inflicted by A-1 & A-2, Jayalakshmi succumbed to those injuries, despite the treatment, for which they should be held responsible, that there is no reason to disbelieve the injured eyewitnesses in view of the fact, the delay in preferring the F.I.R., if any, is acceptably explained by the prosecution and that the oral evidence is fully corroborated by the medical evidence also. But at the same time, the learned Sessions Judge took the view, since at no point of time A-3 was indicated, as known person and subsequently also prior to trial though, he was identified before the trial Court, the benefit of doubt should be given to him. Thus, giving the benefits of doubt, he acquitted A-3 from all the charges, convicted A-1 & A-2 under Sections 452, 324 and 302 I.P.C., sentencing them to undergo, three years R.I. for the offence under Section 452 I.P.C.; one year R.I. for the offence under Section 324 I.P.C.; and life imprisonment for the offence under Section 302 I.P.C. and imposing a fine of Rs.500/- for the offence under Section 452 I.P.C. in default one month R.I. and a fine of Rs.1000/- in default three months R.I for the offence under Section 302 I.P.C. against the second accused alone. 6. A-1 by name M.G. @ Rajendran though had been convicted and sentenced for the offences under Sections 452, 324 and 302 I.P.C., as https://hcservices.ecourts.gov.in/hcservices/ on this date, he has not preferred any appeal. 7. The prosecution, though had let in evidence implicating A- 3, and despite the eyewitnesses have spoken about the overt acts said to have been committed by him, aggrieved by the acquittal of A-3, has not preferred any appeal, questioning the correctness of the acquittal. A-2 alone had challenged the conviction and sentence in this appeal. In this view of the matter, we are called upon to decide, whether the conviction and sentence slapped upon A- 2/appellant, is sustainable or not, whether the conviction is based upon unassailable legal evidence or it could be assailed because of the absence of the legal evidence. It seems, the third accused had been acquitted on false notion, not properly appreciating the evidence, which cannot be the sole consideration, for acquitting A-2, if it is further shown the acquittal is incorrect, though it is not challenged. In the same manner, only on the ground the conviction slapped upon A-1 has not been challenged, it is also not legally sound to say that the same result should visit upon A-2/appellant. 8. Facts necessary for the disposal of this appeal as culled out from the prosecution evidence: (1) Thangavel (P.W.1), Kowsalai (P.W.2) are the husband and wife and their son is Pitchaipillai (P.W.3). Pitchaipillai's wife is Jayalakshmi. All the four were residing at Nattarmangalm Village, in their farm house when the incident narrated in the final report had taken place. All the accused in S.C.No.60/2003 are also the residents of Nattarmangalam. (2) A-3 and P.W.3 contested for the post of President of the Panchayat, resulting enmity. A-2 unable to maintain himself, having quarreled with his wife, borrowed a sum of Rs.5,000/- from P.W.1 and not only that, without discharging the said debt, he demanded a further sum of Rs.10,000/-, which was refused, resulting a warning given by A-2 to P.W.1. A-1 had some problem with his wife and therefore, he requested P.W.1, to reconcile the same, refusal also resulted grievance. Thus all the accused had some motive against P.W.1's family. (3) On 12.9.2002, P.W.1, P.W.2, their daughter in law by name Jayalakshmi, were sleeping in their farmhouse while P.W.3 had been to manure shop, which is in the village. At about 11.15 p.m. or so, during night hours, P.Ws.1 & 2 heard the barking of the dog, and suspecting something, they searched, found none, went to sleep in the room once again. In the adjacent room, Jayalakshmi was sleeping. At the top of the farm house, a tube light was burning throughout the night. At about 11.30 p.m., the accused appellant and two others trespassed into the room where P.Ws.1 & 2 were sleeping, assaulted them with iron rod, causing injuries. Immediately all of them came https://hcservices.ecourts.gov.in/hcservices/ out from the room crying and hearing the noise of P.Ws.1 & 2, their daughter in law Jayalakshmi came out, from her room. On seeing the daughter in law, the accused have assaulted her also using the iron rod and other weapons, causing head injuries and other injuries. Thereafter all the accused ran away from the scene of crime with the weapons. (4) P.W.1, who lost his dhothi during the assault, making noise, ran to the house of P.W.5-Alagiri. P.W.5 and P.W.6. who are neighbours hearing the noise of P.W.1 came out and provided a dhothi for P.W.1. On their enquiry, P.W.1 revealed to them, that he and his family members were assaulted by the accused. Immediately all of them reached the scene of crime, where they have seen P.W.2 and Jayalakshmi with bleeding injuries. P.W.5 sent a message to P.W.3, through P.W.7. Upon reaching the scene of crime, when P.W.3 enquired his father-P.W.1, he informed to him that he was assaulted by all the accused. Thereafter, P.W.3 took all the injured, to the Government Hospital, Perambalur, where P.W.10 was working as Medical Officer. (5) P.W.10 examined P.Ws.1 & 2 on 13.9.2002 at about 4.15 a.m. At the time of the examination, he has noticed the injuries upon the persons viz., P.Ws.1 & 2, which are incorporated in Exs.P8 & P9. Jayalakshmi was admitted in the Government Hospital, Perambalur, at the first instance, then taken to Trichy, where despite treatment, there was no improvement and therefore, she was taken to a private hospital, where PW.14 examined her and issued Ex.P16 report. (6) After admitting the injured in the hospital, the same was informed to Padalur Police Station, where P.W.13 was working as Sub Inspector of Police. Immediately, P.W.13 went to the hospital, examined P.W.1, recorded his statement Ex.P1, on which basis a case was registered originally under Sections 452, 324, 506(ii) I.P.C., submitted the printed F.I.R. (Ex.P.13) to the Court, marking the copies to the higher authorities also. (7) Thereafter, P.W.13 went to the scene of crime at about 12.00 noon, prepared observation mahazar-Ex.P2, Sketch-Ex.P14 in the presence of P.W.4 and another witness. He also examined P.Ws.1 to 3, recorded their statements. Jayalakshmi, who was admitted in the Trichy Hospital succumbed to the injuries, which was informed to the police on 18.9.2002 on which basis, the case was altered under Section 302 I.P.C. for which Ex.P.15 was submitted to the Judicial Magistrate. Then the case was taken for investigation by the Inspector of Police, P.W.15. (8) Upon receipt of the copy of FIR., PW.15, taking the case for investigation, went to Trichy Government Hospital conducted inquest over the body of Jayalakshmi in the presence of Panchayatdars, prepared the inquest report-Ex.P17. He has also https://hcservices.ecourts.gov.in/hcservices/ examined P.Ws.1 to 3, recorded their statements. In order to ascertain scientifically the cause of death of Jayalakshmi, the body was sent for postmortem with requisition-Ex.P.19 through P.W.9. (9) Upon the receipt of the request, and on identification of the body, P.W.12 conducted postmortem over the body of Jayalakshmi, which revealed the following injuries, which are incorporated in the postmortem certificate-Ex.P.11. 1. A sutured wound, 9 cm in length, on the saggital plane, on the left side of frontal and parietal regions of the scalp, 5 cm away from the midline, 4 cm away from left eyebrow on removal of sutures, edges irregular, 0.5 cm in breadth bone deep. 2. A sutured wound 4 cm in length on the centre of frontal region of scalp, obliqely placed 6 cm away from glabella. On removal of the sutures:- edges regular, 0.5 in breadth, bone deep. 3. A curved sutured wound, 24 cm in length on the right side of frontal, parietal, temporal region of the scalp, 6 cm away from the eyebrow and 1 cm above the right ear. On removal of the sutures:- edges regular, 1 cm in breadth, exposing brain matter. The underlying bones of size 12 cm x 10cm and meninges are missing. Bruising of dark red, subdural hemorrhage and subarachnoid hemorrhage on both cerebral hemisphere laceration of left temporal lobe of cerebrum with intra-cranial hemorrhage. Softening of the brain matter present. Tissued and comminuted fracture of anterior and both middle cranial fossa communicates with entire fracture. 4. Dark brown colour abrasions, 4 cm x 1 cm on the upper part of outer aspect of right thigh. The above mentioned wounds are antemortem. (10) Viscera preserved was sent for chemical examination through Court and the chemical examination report is Ex.P12. A-3, Balusamy surrendered in another case was secured on P.T. Warrant in this case. Upon examination, he has given the confession Ex.P.18. Pursuant to the investigation, A-1 & A-2 were also arrested in the presence of P.W.8 and another and they have also given the confession and the admissible portion of the same is Ex.P.5. Pursuant to the same, M.O.2 and M.O.3 were recovered under the cover of mahazar- Ex.P.6. P.W.15 has given a requisition to the Court to send the material objects recovered and submitted to the Court, for chemical examination under-Ex.P.22, which was conceded under Ex.P.23 resulting https://hcservices.ecourts.gov.in/hcservices/ report Exs.P.24 and P.25. Meanwhile, since P.W.15 was transferred further investigation was taken by P.W.16. At the request of the Investigating Officer, under Ex.P.19, the Judicial Magistrate, Perambalur recorded the statements of P.Ws.1 & 2 under Exs.P.20 and P.21. (11) P.W.16 examined the doctor, perused the previous investigation done by P.W.15 which brought to surface that all the accused should have committed the offence, and in this view, a final report came to be filed, leading to trial ending in conviction as stated above, which is impugned only by A-2 in this appeal. 9. Heard the learned Senior Counsel for the appellant, Mr.AR.L. Sundaresan and the learned Addl. Public Prosecutor, Mr.N.R. Elango. 10. Mr. AR.L.Sundaresan, the learned senior counsel appearing for the accused/appellant attempted to assail the conviction of the appellant on the following grounds viz:- (a) that the names of all the accused are not mentioned in the F.I.R. though the accused were known to the victims viz., P.Ws.1 & 2; (b) that the inordinate delay in giving the F.I.R. and sending the same to the Court spontaneously create doubt, which benefit should go to the accused; (c) that the F.I.R. relied on by the prosecution viz., Ex.P.1 is doubtful, in the sense, it may not be the original F.I.R., since there is some evidence indicating, even before Ex.P.1, statements should have been recorded from the witnesses and if at all that should be the original F.I.R. and the suppression of the same should lead to doubting the genesis of the case; (d) that after investigation commenced, if at all Ex.P.1 should have been procured; (e) that the weapons said to have been recovered on the basis of the confession is not proved and also doubtful; (f) that at each and every stage, the prosecution attempted to improve the case thereby giving an unquestionable chance to doubt about the veracity of the witnesses; https://hcservices.ecourts.gov.in/hcservices/ (g) that on the same material produced by the prosecution, despite the fact there is implication of A-3 also. he has been acquitted and the same kind of benefit should be extended to the accused/appellant, since he is also standing in the same footing; (h) that there would not have been any possibility for the witnesses to identify the assailants since there was no light or proper light in view of the admitted fact, the incident had taken place during night hours; (i) that there is inconsistency in the statements given to the doctor as well as given to the police regarding the assailants, whether they are known or unknown; (j) that there is no specific overt act against the accused/appellant, leading to irresistible conclusion that the injury said to have been inflicted by him must be the cause for the death of Jayalakshmi that too with intention and if at all, in case the evidence of the prosecution is to be believed, the offence will not come under Section 302 I.P.C., whereas it should come under lesser offence. Elaborating the above points, taking us through the evidence in detail, and pointing out the contradictions and omissions, as if available in the prosecution witnesses, a vociferous argument was made by the learned senior counsel to discharge the accused/appellant from the charges, for which he was convicted. 11. The learned Additional Public Prosecutor responding the above submissions would submit, that practically there is no delay in preferring the complaint and even if there is any delay, the same is explained, that the fact P.Ws.1 and 2 have stated to the doctor that they have been assaulted by one known person and two unknown persons, may not be a ground to eschew their oral evidence as unworthy since they have categorically deposed about the actual involvement of the accused/appellant being the injured witnesses, which is corroborated by the neighbours also, that small contradictions and omissions should not be magnified only for the purpose of creating doubt that the wrong acquittal of A-3 cannot be a ground to acquit the 2nd accused/appellant also since those grounds on which basis A-3 was acquitted, will not be available legally to the accused appellant. Thus opposing the submissions made by the learned senior counsel for the appellant and taking us through the oral evidence, documents relied on, including the Judgments of the trial Court, where unassailable reasons are assigned, for the conviction of A-2, a strenuous submission was made for sustaining the conviction. https://hcservices.ecourts.gov.in/hcservices/ 12. The accused/appellant has been convicted and sentenced to undergo imprisonment for the offences under Sections 452, 324, 302 I.P.C. It is the case of the prosecution that A-2 assaulted P.W.1 with an iron rod causing injuries, as if grievous one. The trial Court convicted A-2/appellant only under Section 324 I.P.C. for causing simple injuries, with the iron rod. It is the further case of the prosecution, that this accused also assaulted Jayalakshmi causing head injuries, which also terminated her life prematurely. For doing these acts, it is the case of the prosecution, that the accused along with two others trespassed into the house of P.W.1, having made the preparation for causing hurt. Therefore, before going into the question, who caused simple injuries to P.W.1 and who caused head injuries to the deceased, let us see whether P.W.1 sustained injuries and Jayalakshmi died due to head injuries, in order to bring the acts of the assailants, voluntarily causing hurt and committed murder with an intention. 13. The doctor, who had examined P.W.1 viz., P.W.10 issued wound certificate, for the injuries sustained by P.W.1 under Ex.P8. There was four injuries. According to the opinion of the doctor, three injuries are simple in nature and one injury is grievous. However, the trial Court has held the accused/appellant is answerable only for the simple injury. The injuries sustained by P.W.1 even as spoken by him and the nature of injuries sustained by him are not disputed, though the dispute is who had caused those injuries. In this view, it is to be held that in the incident which took place on 12.9.2002 at about 11.30 p.m., P.W.1 sustained simple injuries, which should have been caused by the deadly weapon such as an iron rod. 14. At the request of the investigating officer, P.W.12 conducted postmortem over the body of Jayalakshmi on 19.9.2002. Though the incident had taken place on 12.9.2002 at 11.30 hours, Jayalakshmi succumbed to the injuries only on 18.9.2002. As indicated by us early, four injuries were noticed over the body of Jayalakshmi. The doctor opined in Ex.P.11, that the deceased died due to Cranio cerebral wounds, which is the result of head injuries. When the doctor has detailed, about the injuries and has given opinion about the cause of death, not disputed. Therefore, it is to be held that Jayalakshmi died due to culpable homicide i.e. because of the assault with deadly weapons over her head. It is also not the case of the appellant before us, that Jayalakshmi died due to some other cause and therefore, slapping the conviction against the accused under Section 302 I.P.C. is erroneous, on fact. Under the above said circumstances, we reiterate and conclude that Jayalakshmi died, due to homicidal violence amounting to murder. For sustaining the injury by P.W.1 and for sustaining the head injury by the deceased, if it is proved, that A-2 also contributed his act, directly or in furtherance https://hcservices.ecourts.gov.in/hcservices/ of the common intention, the accused/appellant is answerable either under Section 302 or 302 r/w 34 I.P.C. and 324 I.P.C. and there could be no escape. 15. Ex.P.1 moved the wheels of the investigation. The complaint Ex.P.1 is attacked on the ground that it should have been procured after the commencement of the investigation, suppressing the earlier statement given by the injured and therefore, the foundation of the case itself, shaky and doubtful, thereby seeking the benefit of doubt. As spoken by P.W.13, he recorded the statement from P.W.1 on 13.9.2002 and on that basis, Ex.P.13 was prepared and submitted to the Court. It is also the case of P.W.1 that he was examined by the police and the police had recorded the statement obtained his signature. As seen from Ex.P.1, it was recorded on 13.9.2002 at 11.00 a.m. At the time of recording the F.I.R. or at the time when the doctors have informed the police, there was no death. The original F.I.R. was registered only under Sections 452, 324 and 506(ii) I.P.C. The F.I.R so registered reached the Court on 14.9.2002 at about 1.00 p.m. as recorded by the Learned Sessions Judge, in his Judgment at paragraph-4. True, there was some slackness because of the nature of the injuries and the offence reported at that time. Therefore, it is not possible to say, that taking advantage of this delay, a new F.I.R. was prepared or procured, substituted, suppressing the earlier statement given by the injured. Ex.D1 also fails to come to the aid of the appellant, though the same is having separate serial number, in view of the fact, the original F.I.R. in this case as well as Ex.D1 contained the same averments, without any change. In this view, we are unable to accept the contention of the learned senior counsel for the appellant, that original complaint should have been suppressed and Ex.P.1 should have been secured later and that is why two printed F.I.Rs were prepared in different forms. The investigating officer, has explained how this mistake had occurred, which deserves acceptance, in the absence of any contradictions or additions available in the averments available in both the documents. P.W.1 has categorically stated, that Padalur Sub Inspector came to the hospital, recorded the statement, identifying Ex.P.1. During the cross examination by A-1, he has stated that he does not know, what was written in the document in which the police obtained his signature. He has further stated, that on the next day, he was examined by the police at about 8.00 a.m. Taking advantage of the above evidence, the learned senior counsel argued that the previous statement recorded should have been suppressed, which we are unable to agree. After all P.W.1 is a rustic village man, and it is not proper to expect mathematical precision, about the time and the contents of the document, when he was cross examined. Therefore, the evidence so given by P.W.1, in our considered opinion, failed to erase Ex.P.1, or even failed to create any reasonable doubt. In this view, we conclude there is no delay in giving the information to the police, though there is some delay in the printed F.I.R. reaching the https://hcservices.ecourts.gov.in/hcservices/ Court and that delay could be ignored, because of the nature of the offence then reported and recorded. Thus, it is proved when the victims had the opportunity to say, at whose hands they have suffered the injuries, they have clearly stated the names of the accused, including the appellant, in which we are unable to entertain any doubt. 16. The main thrust of the learned senior counsel for the appellant, was that P.Ws.1 & 2 would not have identified A-2 at all, at the time of the assault and that is why at the earliest opportunity, when there was no intervention of the police, they have stated specifically to the doctor that they were assaulted by "one known person" and "two unknown persons" and this being the position, convicting the accused/appellant, who was described as unknown person, is legally not sound. It is an admitted fact, that all the accused belong to the same village and the accused also known to P.Ws.1 & 2. Therefore, it is the submission of the learned senior counsel for the appellant that if A-2/ appellant had attacked P.W.1, P.W.2 and Jayalakshmi, they would not have reported to the doctor that they were assaulted by 'one known person' and 'two unknown persons' since reported so this would clinchingly prove the absence of the second accused/appellant, at the time of the incident and on this ground alone, A-2 is entitled to an