Bail Slip The Appellant/Accused namely 1) N.Gokulavasan aged 54 S/o.Narayana Konar and 2) P.Sekar, aged 22,S/o.Panduranga Konar, was directed to be released on bail as per order of this Court dated 22.11.2004 in Crl.MP No.11068/2004 in Crl.Appeal No.1293/2004 on the file of this Court. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 09.11.2011 Coram : THE HONOURABLE Ms. JUSTICE K.B.K.VASUKI Crl.A.No.1293 of 2004 1.N.Gokulavasan 2.P.Sekar .. Appellants 1 & 2/Accused 1 & 2 Vs. State by Inspector of Police, Sankarapuram Police Station, Cr.No.385 of 2002 ... Respondent/Complainant Prayer: Criminal Appeal is filed under Section 374 Criminal Procedure Code, against the judgments dated 19.10.2004 made in S.C.No.21 of 2004 on the file of the Additional District and Sessions Judge, Fast Track Court No.II, Kallakurichi. For Appellants : Mr.Ashok Kumar, SC for M/s.S.Palaninathan. For Respondent : M/s.C.Balasubramanian Additional Public Prosecutor. JUDGMENT The accused 1 and 2 have filed the present appeal against their conviction and sentence for the offence under section 325 r/w.34 IPC. 2. The case of the prosecution is that A1-Gokulavasan, A2-Sekar and A3-Indira Gandhi had at 7.30am on 08.07.2002 due to previous enmity, jointly assaulted Govindan since deceased in front of Lakshmana Chettiar house at Chembarampattu village and A1 and A3 assaulted Govindan with hands at his chest and abdomen and back portion and A2 kicked him with his leg and hands, and the said Govindan inflicted grievous injuries which resulted in his death in the hospital thereby the accused committed the act constituting the https://hcservices.ecourts.gov.in/hcservices/ offence punishable under Section 302 r/w 34 IPC. 3. The prosecution is launched against the accused on the basis of Ex.P1 complaint given at 8.30pm on 09.07.2002 by PW1- Subammal who is none else than the sister of the deceased Govindan and the same was followed by Ex.P2 complaint dated 10.07.2002 given by PW3- Asaithambi about the death of Govindan due to the injuries at 10.20pm on 09.07.2002 in Salem Government Hospital and the same was followed by alteration of the offence which was originally registered for the offence under Sections 325 and 307 IPC and the same was investigated into by PW14 and PW15/IOs and the outcome of their investigation was the charge sheet filed against A1 to A3 for the offence referred to above. 4. The prosecution in order to prove the factum and the manner of the occurrence and the death of the injured due to the injuries sustained by him examined the complainant/Subammal who is so called eyewitness of the occurrence, observation mahazar, villagers, witnesses for the arrest and recording of the confession statement of A1, postmortem Doctor and the Doctor, who treated the injured at Sankarapuram Government Hospital, concerned Judicial Magistrate who recorded Section 161 statement from Devaki, Lakshmi, Mayavan and Kumar, FIR, head constable, postmortem head constable, Sub Inspector of police, who registered the complaint and Inspector of Police, who held investigation as PW1 to PW15 and produced the complaint dated 09.07.2002, complaint dated 10.07.2002, FIR, alteration report, observation mahazar, rough sketch, accident register, postmortem report, inquest report and Section 164 statement of the witnesses as Ex.P1 to Ex.P16. The accident register of deceased Govindan in Tamil issued by PW12 is produced as Ex.D1 on the defence side. 5. The trial court on the basis of the available evidence arrived at a conclusion that the prosecution failed to establish the act of assault of the deceased Govindan by A1 and A2 and the injuries inflicted by A1 and A2 are not grievous in nature and there was no intention to cause death of Govindan and no evidence to prove the participation of A3 in the act of assault and on the basis of such conclusion acquitted A3 and convicted A1 and A2 for the offence under Section 325 r/w.34 IPC. Aggrieved against the same, the present appeal is filed by the accused 1 and 2 before this Court. 6. The learned Senior counsel appearing for the appellants has seriously questioned the correctness of Judgment of conviction of A1 and A2 by drawing the attention of this court to serious contradictions and inconsistencies regarding the manner in which the injured sustained injuries in the scene of occurrence, nature and number of persons participated in the occurrence, number of injuries sustained by the injured and the nature of treatment given to the injured, cause of death and the manner in which the complaint was lodged, the manner of alleged act of assault of Govindan, which are https://hcservices.ecourts.gov.in/hcservices/ according to the learned senior counsel for the appellants likely to shatter the foundation of the prosecution case. 7. Per contra, the learned Additional Public Prosecutor has sought to defend the order of conviction of A1 and A2 mainly by relying on the oral evidence of the defacto complainant and the so called eye witness as PW1 to PW4. 8. Heard the rival submissions made on both sides and perused the materials available on record. 9. As already referred to, the complaint is originally given against three accused A1 Gokulavasan and A3 Indira Gandhi who are the husband and wife and A2 Sekar all belonging to Tandarai Village which is situated at a distance of 80kms from the scene of occurrence. Though the witnesses do depose about the previous enmity between deceased Govindan on one hand and Gokulavasan on the other hand, none of them spoke anything about either previous enmity between deceased Govindan and A2 or close association of A1 and A3 on one hand and A2 on the other hand. The trial court hence disbelieved the prosecution version about the participation of A3 in the alleged act of assault and acquitted A3 from the charges framed against her. 10. The criminal case is launched against the accused only on the basis of Ex.P1 complaint purportedly given by PW1. The learned Senior counsel for the appellants has pointed out various discrepancies in the complaint as well as in FIR as discussed below which according to him go to the root of the case. 11.In so far as A2 is concerned he has admittedly not closely known to either of PWs. As a matter of fact, PW1 whose Ex.P1 complaint is basis for prosecution case against A1 and A3 has categorically admitted in her cross examination, that she did not know and did not mention the name and father's name of A2 at the time of giving her complaint and the same renders serious doubt about the prosecution case. 12. Though the occurrence was allegedly taken place at 7.30pm on 08.07.2002, Ex.P1 complaint was received at 8.30pm on 09.07.2002 and the case was registered as Ex.P1 FIR by PW13/Sub Inspector of Police. It is specifically deposed by PW13/Sub Inspector of Police that Subammal reached the police station at 8.30pm on 09.07.2002 and lodged written complaint and the same was received and registered as Ex.P11 FIR. Whereas, the perusal of Ex.P11 FIR reveals that the same is registered in Sankarapuram Police Station in Cr.No.385 of 2002 on 10.07.2002 and the original of the same is caused to be sent to the court on 10.07.2002 at 10.00pm. The perusal of Ex.P1 further reveals that the nature of the complaint received is written complaint. Whereas, PW1 has both in the chief examination and cross examination categorically stated that she had been to police station and narrated the incident and the same was recorded by police constable and https://hcservices.ecourts.gov.in/hcservices/ thereafter it was read over to her and her signature was obtained and the document was prepared as Ex.P1 complaint. PW1 further stated in her evidence that she did not know the name and father's name of A2 and did not give such particulars to police. Whereas Ex.P1 complaint and Ex.P11 FIR refer to the name of A2 as Sekar s/o.Panduranga Konar. The inconsistency in the evidence of PW1 who is the author of Ex.P1 complaint and PW13 who is said to have received the complaint and registered the same as Ex.P11 FIR would raise a genuine doubt in the mind of this court as to whether the complaint is received from PW1 is Ex.P1 or different one. Thus there is serious discrepancy in the case of the prosecution about the manner and place of lodging the complaint against the accused. 13. PW12/first Doctor was during the relevant period attached to Sankarapuram Government Hospital who first saw and examined the injured PW12 in his Ex.P10 and Ex.D1 accident register in English and Tamil respectively stated that the police has been already informed. The oral evidence of PW12/Doctor and his Ex.P10 and Ex.D1 accident register in English and Tamil would reveal that the injured was first seen by him in Sankarapuram Government Hospital at 11.30am on 08.07.2002 and the police must have been informed much before either on or before 11.30am on 08.07.2002 and the possibility of the police being informed about the same is also to greater extent supported by the evidence of PW1/defacto complainant and PW15 Doctor Varalakshmi, who is the treating Doctor of PW1. Further, PW5 has in the course of his cross examination definitely stated that Sankarapuram police came to Salem Government Hospital and enquired injured Govindan in the presence of the Doctors. PW1 has also in the course of her cross examination stated that she approached Sankarapuram Police Station at 4.00pm on 09.07.2002 and gave the complaint and she was informed about the death of Govindan by one of the police constables attached to Sankarapuram Police Station and after funeral, the police enquired and summoned PW1, A1 and A3 to Sankarapuram Police Station and enquired and retained A1 and A3 and sent PW1 back. Thus, there are different versions available regarding the time at which the police was informed and police came and enquired the injured and the witnesses. 14.Notwithstanding, the same, the factum remains undisputed is that the police was informed about the occurrence and the police came and obtained the statement about the factum of occurrence much before Ex.P1 complaint, as such, Ex.P1 complaint could not be the first information received by the police and at best it can be treated only as Section 161 statement of PW1 and losses its importance and significance. The prosecution case as rightly argued by the learned senior counsel for the appellants has to necessarily fail on the sole ground of suppression of earlier statement obtained from PW1/injured and others, regarding the factum and the manner of the occurrence, here again, the prosecution case suffers from serious contradictions. https://hcservices.ecourts.gov.in/hcservices/ 15.In so far as the scene of occurrence is concerned as per the information given by the injured to PW12/Doctor, the occurrence taken place in front of her house and number of offenders participated in the occurrence. Whereas, PW1 to PW5 would come forward with different case as if the occurrence taken place opposite to the cattle shed of Panchayat President. As per the charges framed against the accused by the trial court, the scene of occurrence is just opposite to one Lakshmana Chettiar. However, rough sketch did not support the prosecution case and neither Lakshmana Chettiar nor Panchayat President is examined. Thus the serious contradiction in this regard in the prosecution case cannot be brushed aside. 16. Regarding the number of persons participated in the act of assault, it is reported to be two by the injured. Whereas PWs have included two known persons without furnishing the names of those two known persons. Further, PWs would include A2/Sekar who is the resident of Thandarai Village situated 80kms away from the occurrence village. It is no body's case that A2/Sekar had any previous enmity with the deceased Govindan or so closely associated with A1 and A3 in order to join them in the commission of the offence. As far as A3 is concerned, the trial court disbelieved the prosecution case. As PW1 has categorically stated that she did not mention the name of A2 in her Ex.P1 complaint, the prosecution theory regarding participation of A2 in the occurrence would highly become doubtful. 17. As far as A1 is concerned, she denied that the injured sustained injuries only due to any act of assault by either of the accused. The defence raised on their side is that injured was hit by his cattle and the same was also to some extent accepted by PW1 in the course of her cross examination. She has clearly admitted that she was informed as if cow belonging to the first accused hit her brother and PW2 Mayavan was paid Rs.5,000/- by A1 towards medical expenses to the injured and Mayavan took her brother to hospital for treatment. The serious contradictions as discussed above in the prosecution case of viewed in the light of admission of PW1, would lead to an interference that the defence so raised by A1 is acceptable and the same is also to some extent supported by the medical evidence. 18.It is to be recollected at this juncture, that PW2-Doctor, who treated the injured admittedly issued two accident registers in Ex.P10 and Ex.D1. While injuries sustained by the deceased were recorded as grievous in Ex.P10 in English, the same was not so mentioned in Ex.D1 accident register extract in Tamil. It is not known as to how two accident registers were issued by the same Doctor in respect of the same patient that too with such discrepancy on material aspects. Further PW12 would admit that the injuries found on deceased Govindan could have been sustained due to any hit by cow. On the failure of the prosecution to putforth any definite medical https://hcservices.ecourts.gov.in/hcservices/ evidence as to how deceased sustained injuries the defence theory by A1 as admitted by PW1 deserves some merits and acceptance and the same would falsify the entire prosecution theory that the deceased Govindan sustained injuries due to any act of assault by either A1 or A2. Thus, the evidence available herein would amply demonstrate that the prosecution case suffers from serious discrepancies and is not safe enough to pass any order of conviction against the accused. Whereas the trial court without properly considering the same has passed on erroneous judgment of conviction resulting in miscarriage of justice and the same deserves interference by this Court. 19. In the result, the criminal appeal is allowed by setting aside the judgment of conviction dated 19.10.2004 in SC.No.21 of 2004 on the file of Additional Sessions Judge, Fast Track Court, Kallakurchi and A1 and A2 are acquitted from the charges levelled against them. The bail bond, if any, executed by A1 and A2 shall stand cancelled, and the fine amount, if any, paid by A1 and A2 shall be refunded to them. Sd/- Asst.Registrar(CO) 9.4.2014 /True Copy/ Sub Asst.Registrar tsh To 1.The Additional Sessions Judge, Fast Track Court, Kallakurichi. 2.The Public Prosecutor, High Court, Madras. (Crl.Side) 3.The Judicial Magistrate, Sankarapuram,Villupuram District. 4.The Chief Judicial Magistrate, Villupuram. https://hcservices.ecourts.gov.in/hcservices/ 5.The Principal Sessions Judge, Villupuram. 6.The Inspector of Police, Sankarapuram Police Station, Villupuram District. +1cc to Mr.P.Palaninathan, Advocate Sr 68240 AD(CO) km/11.4. Crl.A.No.1293 of 2004 https://hcservices.ecourts.gov.in/hcservices/