1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:1.07.2011 CORAM: THE HONOURABLE MR. JUSTICE S.RAJESWARAN AND THE HONOURABLE MR. JUSTICE G.M. AKBAR ALI Crl.A.(MD)No.89 of 2011 and M.P.(MD)No.1 of 2011 1.R.Muthu 2.M.Veeramani 3.M.Rajamani 4.M.Vijayarani 5.S.Kalarani :Appellants/Accused 1 to 5 -Vs- State Rep.by Inspector of Police, Tamil University Police Station, Thanjavur. (Crime No.254 of 2008) :Respondent/Complainant Prayer:This Criminal Appeal is filed under Section 374(2) Cr.P.C., against the judgment dated 17.03.2011 in S.C.No.218 of 2009 before the learned Additional Sessions Judge cum FTC No.I, Thanjavur. For Appellants:Mr.M.Karunanithi For Respondent:Mr.K.S.Duraipandian,APP JUDGMENT G.M. AKBAR ALI,J., The appeal is filed against the judgment dated 17.03.2011 in S.C.No.218 of 2009 before the learned Additional Sessions Judge cum FTC No.I, Thanjavur. 2.The case of the prosecution is as follows: P.W.1 Durai belonged to Kuthancheri Village and the appellants were also belonged to the same village and living in the same street. P.W.6 is the daughter of P.W.1. A day prior to the occurrence P.W.6 said to have gone to the nearby Thoppu to attend natural call. The 2nd appellant is said to have teased and tried to outrage her modesty. This was reported by P.W.6 to P.W.2. P.W.2 went to the appellant's house to complain to the first appellant. P.W.1 coming to know about the incident went there along with P.W.3. P.W.4 and 5 also followed P.W.1. In the house of the appellants all the appellants were present and the appellants 1 to 3 were having the wooden logs and appellants 3 and 4 were having chilly powder. The deceased Chinnathambi went to the appellants house. It was around 2.30 p.m., the appellants 3 and 4 sprayed the chilly powder and the appellants 1 to 3 assaulted P.W.1 and the said Chinnathambi. There was a commotion and the injured were taken to hospital. Around 6.15 the said Chinnathambi succumbed to injury. P.W.1 gave a complaint which was registered the Sub Inspector of Police initially for an offence 307 then altered into 302. 3.The learned Trial Judge believed the version of P.W.1 to 3 and convicted all the appellants. Aggrieved by which, the appellants are before this Court. The appellants are still in custody. 4.Mr.Karunanithi learned counsel for the appellants would submit that the prosecuting parties are the aggressors and they have entered into the house of the appellants and assaulted them. The learned counsel pointed out that the appellants 2, 3 and 4 have also sustained injuries in the same occurrence and were treated by the Doctors. According to the learned counsel it is a case and counter where the procedure contemplated under a https://hcservices.ecourts.gov.in/hcservices/ 2 Police Standing Order 588(A) has been violated. The learned counsel also pointed there is a suppression of FIR, delay of sending the FIR and other material documents to the Court and the injury to the accused has not been explained. The learned counsel pointed out that admittedly, the appellants were defending and in that course the deceased interfered and sustained injuries for no fault of the appellants. 5.The learned counsel relied on the judgements reported in 2011(1) MWN (Crl.) 301 DB (Saravanan and 2 others Vs. State), 2009(1) MWN (Crl.) 141 DB (Jeeva Nagamani and others Vs. State), 2009(3) MLJ (Crl.) 372 (Sulian @ Chinnathambi Vs. State), 2008(2) SCC (Crl.)2041 (Renganathan Vs. State), 2000(9) SCC 164 and AIR 1993 SC 300. 6.The motive is said to be that the 2nd appellant had outraged the modesty of P.W.6 and on a complaint, P.W.2, went to the house of the appellants to enquire. It is also admitted that P.W.1,3 and 4 also went to the house of the appellants. It is also admitted that there was an altercation and there was exchange of blows and in that occurrence, the appellants 2,3 and 4 have also sustained injuries. The medical evidence would go to show that the appellants have sustained injuries. The yet another mitigating factor is that the injured was admitted in the hospital and the Doctor who gave treatment would depose that the deceased suddenly developed cardiac and respiratory attack and died. 7.The post-mortem certificate would reveal that there was a sutured wound on the right side of the head with two lacerated wound on the bone deep. The internal examination of the skull would show a lenior fracture in the right temporo parietal region and a sub duro hemotoma. The Doctor has opined that the deceased would have died of head injury and brain haemorrhage. Though the medical evidence would show that the injured developed a cardiac and respirative failure, the injury caused to the brain could be the cause for death. 8.The evidence P.W.1 to 3 would show that P.W.1 had not specifically stated the individual overtact. P.W.2 would state that the first appellant had assaulted the deceased. P.W.3 would specifically state the overtact The allegation against the 4th and 5th appellants, who are women members of the family, are that they have sprayed chilly powder. There is no medical evidence to show that the chilly powder has caused any injury. Therefore, the benefit of doubt is given to appellants 4 and 5. As far as the other appellants are concerned, it is admitted that they have also sustained injury and there was a fight between the parties. In 2011 1 WL 10 Division Bench of this Court has held that when a case and a counter case arise in the course of same transaction it is the duty of the prosecution to place the records relating to both the cases and further duty is caste upon the prosecution to point out clearly the genesis of the occurrence and thereby enabling the court to find out the truth and fix the aggressors. 9.In 2008(2) SCC (Cril.) 727 (Babu Ram and others Vs. State of Punjab) the Supreme Court held as follows: "18.It is a well settled law that in a murder case, the non explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences: "1.that the prosecution has suppressed the genesis and the https://hcservices.ecourts.gov.in/hcservices/ 3 origin of the occurrence and has thus not presented the true version: 2.that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore, their evidence is unreliable: 3.that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case." (See Lakshmi Singh V. State of Bihar, SCC 401, para 12) 19.Further, it is important to point out that the omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one." This has been followed in 2009(1) MWN Crl.141 (DB) (Jeeva Nesamany and others Vs. State Rep. by the Inspector of Police, Madurai District) by a Division Bench of this Court. 10.Therefore, the prosecution suppressing the material evidence in favour of the accused persons and the injuries of the accused not properly explained and when there are ample evidence to show that the prosecuting parties are the aggressors the testimony of the eye witnesses are unreliable. When there is a free for all and there is no specific overtact attributed towards any of the accused for causing injury on the deceased and when the medical evidence is also suggesting a cardiac arrest the benefit of doubt has to be given to the accused. 11.In the result, the Criminal Appeal is allowed and the conviction and sentence imposed on the appellants herein by the judgment dated 17.03.2011 in S.C.No.218 of 2009 before the learned Additional Sessions Judge cum FTC No.I, Thanjavur, is set aside and the appellants are acquitted of the charges levelled. The bail bonds, if any, executed by the appellants shall stand terminated. Sd/- Assistant Registrar (AS) / TRUE COPY / Sub Assistant Registar To: 1.The Additional Sessions Judge cum FTC No.I, Thanjavur. 2.The Judicial Magistrate No:II, Thanjavur. 3.The Chief Judicial Magistrate, Thanjavur at Kumbakonam. 4.The Principal Sessions Judge, Thanjavur. 5.The Inspector of Police, Tamil University Police Station, Thanjavur. 6.The Superintendent, Central Prison, Trichy. 7.The Additional Public Prosecutor,Madurai Bench of Madras High Court,Madurai nbj Judgment made in Crl.A.(MD)No.89 of 2011 RP/16.09.2011/3P/8C. 1.07.2011 https://hcservices.ecourts.gov.in/hcservices/