BAIL SLIP The Appellant / Accused namely Kandasamy @ Kandan was directed to be released on Bil in and by the order of this Court dated. 15.5.2002 made in Crl.M.P.No.4608/02 in Crl.Appeal No.733 of 2002, on the file of the High Court, Madras. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 19.01.2010 CORAM: THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN Crl.A.No.733/2002 Kandasamy@kandan ...Appellant Vs State by Inspector of Police Chennimalai Police Station Erode ...Respondent Prayer:- This Criminal Appeal is filed against the judgement dated 30.01.2002 passed in SC.No.123/2001 by the learned Additional District and Sessions Judge (FTC-) Erode, convicting and sentencing the Appellant for the offence under Section 307 of IPC to undergo 7 years Rigorous Imprisonment and to pay a fine of Rs.2000/-, in default to undergo six months Rigorous Imprisonment. For Appellant : Mr.N.Duraisamy (Legal Aid Counsel) For Respondent : Mr.Hasan Mohammed Jinnah, APP JUDGEMENT This Criminal Appeal is filed against the judgement dated 30.01.2002 passed in SC.No.123/2001 by the learned Additional District and Sessions Judge (FTC-), Erode convicting and sentencing the Appellant for the offence under Section 307 of IPC to undergo 7 years Rigorous Imprisonment and to pay a fine of Rs.2000/-, in default to undergo six months Rigorous Imprisonment. 2. The case of the Prosecution is as follows:- a. One Velumani is residing in the house of his father-in- law along with his wife and children at Veppuli Village. Due to prior enmity between the Appellant/accused and Velumani regarding selling of arrack, on 30.4.2000 at 14.00 hours, while Velumani was sitting in the Vinayagar Koil, Veppuli Village, the Appellant came there and by using abusive language attacked him on his head with a iron pipe and again when he attacked with the said pipe, Velumani warded off with his hands and he sustained injury on his left hand and was also attacked on his both legs and the Appellant threw the https://hcservices.ecourts.gov.in/hcservices/ pipe at the place of occurrence and fled away from the scene. One Arumugam and few other persons came there and the said Arumugam took him and admitted him in the Erode Government Hospital. b. PW.5 Doctor Sivan attached to the said Hospital on 30.4.2000 at 3.35 p.m. gave treatment to the injured and found the following injuries:- "1. Scratch 3x2 cm over right feet 2. Scratch 3x3 cm over left leg 3. Scratch 3x4 cm over fore arm and tenderness over left fore arm 4. Scratch 2x2 cm over right fore arm 5. Contusion over right chest, lower part 6. Lacerated injury of 6x0.5x0.5 cm over left side head." and issued wound certificate Ex.P4. PW.7 Doctor Ramasamy attached to the said Hospital issued a X-ray report Ex.P5 in respect of the injuries sustained by the injured. c. On receipt of information from the said Hospital, PW.8 Shanmugam Head Constable attached to the Chennimalai Police Station went to the Hospital and examined the injured and recorded his statement Ex.P1 and came to the Police Station and registered a case in Cr.198/2000 for the offence under Section 307 of IPC and prepared printed FIR Ex.P6 and sent the copies of case documents to the concerned court and the officials. d. On receipt of FIR, PW.9 Arumugam, Inspector of Police attached to the said Police Station took up the case for further investigation and went to the place of occurrence and examined the witnesses Chinnakaruppan, Chinnarangan and prepared observation mahazar Ex.P2 and a rough plan Ex.P7 in the presence of the witnesses and seized MO.1 iron pipe under Ex.P3 in the presence of the witnesses and arrested the accused and sent him for judicial custody and went to the Hospital and examined the injured and his wife and the witnesses and recorded their statements and examined the Doctors who gave treatment to the injured and recorded their statements and after completing investigation, filed a final report against the accused under Section 307 of IPC. 3. The case was taken on file in SC.No.123/2001 on the file of the learned Additional District Sessions Judge, Erode and necessary charges were framed. In order to substantiate the charges levelled against the accused, the prosecution examined as many as 9 witnesses (PW.1 to PW.9} and also relied on Exs.P1 to P7 and two material objects (Mos.1 to 2). 4. On completion of the evidence on the side of the prosecution, the accused was questioned under Section 313 Cr.PC as to the incriminating circumstances found in the evidence of prosecution witnesses and the accused denied the same as totally false. https://hcservices.ecourts.gov.in/hcservices/ 5. The court below, after hearing the arguments advanced on either side and looking into the materials available on record, found the accused/appellant guilty and awarded punishments as referred to above, which is challenged in this Criminal Appeal. 6. This court heard the submissions of the learned counsel on either side and also perused the material records placed. 7. Mr.N.Duraisamy, the learned counsel for the Appellant would contend that there is prior enmity between the victim and the Appellant and due to the said enmity, he has been falsely implicated. He submitted that the Prosecution relied upon the interested witnesses namely PW.2 the wife, PW.3 and 4 neighbours, who could not have witnessed the occurrence as there is contradiction between the ocular and the medical evidence and that apart, the first and early complaint in this case has been deliberately suppressed giving rise to a serious doubt regarding the Prosecution case. 8. The learned counsel for the Appellant placed reliance on the decision of the Division Bench of this court rendered in the case of Jei@Jeyachandran and others Vs. State [2008-1-Acquittal- 327-Mad] and Sivagami and others Vs. State by Inspector of Police, Villupuram Taluk Police Station, Villupuram [2000-2-MWN-Cr-244-DB] in support of his contention that when the FIR appeared to be fabricated and the Prosecution did not come out with true version of story, the benefit of doubt which arises under the said circumstances should go in favour of the accused. He would also place reliance on another decision of the Division Bench of this court rendered in the case of State by Public Prosecutor, High Court, Madras Vs. palani and 14 others [2005-TLNJ-Criminal-151] in support of his contention that when the medical report did not support the Prosecution's case, then it becomes doubtful as to whether the injuries sustained by PW.1 has been caused by the Appellant as projected by the Prosecution, more so, when it has been stated before the Doctor that he was attacked by known persons not indicating involvement of any single person. 9. As per the Prosecution, due to previous enmity with regard to selling of arrack, when PW.1 was sitting in the Pillayar Koil of their Village, the Appellant came there and by using abusive language attacked him on his head with a iron pipe and again when he attacked with the said pipe, PW.1 warded off with his hands and he sustained injury on his left hand and was also attacked on his both legs. PW.1 has stated that the Appellant threw the pipe at the place of occurrence and fled away from the scene and one Arumugam and few other persons came there and the said Arumugam took him and admitted him in the Erode Government Hospital. In his chief examination, he did not say about the presence of PW.2, PW.3 and PW.4 nor about his wife accompanying to the Hospital. His evidence clearly indicate that PW.3 and PW.4 are not only neighbours, but also known to him closely. PW.1 asserted in his cross examination that only Arumugam admitted him in the Hospital and he has stated so in his complaint as well as to the https://hcservices.ecourts.gov.in/hcservices/ investigating officer, when he was examined during the investigation. 10. PW.2, wife of PW.1 stated that though she saw her husband being attacked by the Appellant, she did not go near as she was in fear. Her conduct in not raising an hue and cry or not attempting to prevent the attack appears to be unnatural and in the light of PW.1 not speaking about the presence of PW.2, her witnessing the occurrence remains doubtful. In her cross examination, she admitted that she came to the spot only on hearing the cry of her husband. Her further evidence that she cannot specify the time as to when the Appellant came and when he attacked PW.1 improbabilise the presence of PW.2 at the time of occurrence. 11. PW.3 who is the neighbour of PW.1 also did not speak about the presence of PW.2. In fact, she would assert that PW.2 was not there at the time of occurrence. Her evidence indicates that only one attack was made by the Appellant, whereas PW.1 says that three blows were given by the Appellant. Her evidence also indicated that she has not been present from the beginning and she has come to the place only later. It is pertinent to point that PW.1 did not say that PW.3 was present, when he was attacked by the Appellant. The same is also consistent with the testimony of PW.4, who also stated that only one blow was given. 12. In the cross examination of PW.1, he stated that the complaint was given by him, while being taken to Hospital. PW.2 also asserts this in her evidence that the complaint was lodged at Chennimalai Police Station and she was present at that time and signed as a witness in the said complaint. But, that complaint is not before the court. In this context, it is relevant to note that PW.1 was admitted in the Hospital by one Arumugam and he has not been examined before the Trial Court. PW.6, the Doctor attached to the Erode Government Hospital deposed that it was alleged to him that PW.1 was attacked by known persons on 30.4.2000 at 2.00 p.m. He had found the following injuries:- "1. Scratch 3x2 cm over right feet 2. Scratch 3x3 cm over left leg 3. Scratch 3x4 cm over fore arm and tenderness over left fore arm 4. Scratch 2x2 cm over right fore arm 5. Contusion over right chest, lower part 6. Lacerated injury of 6x0.5x0.5 cm over left side head." 13. As per the Prosecution, PW.1 was attacked by an iron pipe, but except the injury NO.5 and injury No.3 tenderness over left forearm, the other injuries are not likely to be caused by the iron pipe. PW.6 Dr.Sivan, who examined the injured has categorically opined that the injuries of scratch are not likely to be caused by the iron pipe and he would assert that those injuries cannot be caused by MO.1 iron pipe. https://hcservices.ecourts.gov.in/hcservices/ 14. Though Ex.P1 contains the thumb impression of PW.1, but the evidence indicated that it was obtained in the Government Hospital, Erode by PW.8 head constable of Chennimalai Police Station on intimation received by him from the Erode Government Hospital. But, PW.1 and PW.2 have categorically deposed that they lodged the complaint on the way to the hospital and PW.2 clearly stated that she signed as a witness. In the light of the evidence of the Doctor that it was stated before him that PW.1 was attacked by unknown persons and not by a single person, the entire Prosecution case become doubtful coupled with the fact that the ocular evidence is not supported by the medical evidence. 15. As rightly pointed out by the learned counsel for the Appellant, the statement given by PW.1 to the Doctor PW.6 is the earliest version about the occurrence and when the earliest complaint being suppressed by the Prosecution, the entire case of the Prosecution becomes doubtful and in such circumstances, the benefit of doubt should be given to the Appellant. There is every force in the contention of the learned counsel for the Appellant. Considering the entire facts and circumstances and in the light of the medical evidence, which does not support the ocular testimony, I am of the considered opinion that the Prosecution has not proved the guilt of the Appellant beyond reasonable doubt and he is entitled for the benefit of doubt. 16. In the result, this Criminal Appeal stand allowed. The conviction and sentence imposed on the Appellant in SC.No.123 of 2001 are set aside and the Appellant is acquitted of all the charges levelled against him. It is seen from the records that the Appellant had been enlarged on bail and the bail bond if any executed by the Appellant shall stand terminated and the fine amount if any paid by the Appellant shall be refunded to him. *17. Before parting with this case, this Court places on record its appreciation for the valuable assistance rendered by Mr.N.Doraisamy, Amicus Curiae. The State Legal Service Authority is directed to pay a sum of Rs.2,500/- (Rupees Two Thousand and five hundred only) towards his fee." Sd/- Asst.Registrar 28.01.2010 *17th paragraph included as per order of this Court dt.19.2.10 and made herein sd/- Assistant Registrar 04.03.2010 /True Copy/ Sub.Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ Srcm To: 1.The Additional District Sessions Judge, Erode 2.The Principal Sessions Judge, Erode. To be substituted this order already 3.The District Munsif cum Judicial Magistrate, despatched on Perundurai, Erode District. 09.02.2010 4.The Chief Judicial Magistrate, Erode. 5.The Inspector of Police, Cheennimalai Police Station, Erode District. 6.The Superintendent Central prison, Coimbatore. 7.The Public Prosecutor, High Court, Madras 8.The Secretary, State Legal Services Authority, Chennai. Pre Delivery Judgement in Crl.A.No.733/2002 AKR CO) SS (29.01.2010) SRA (05/03/2010) https://hcservices.ecourts.gov.in/hcservices/