Bail Slip The Appellants 1 and 2 herein (viz) 1.Paramasivam(A1), 2.Elumalai (A2), Accused in SC.No.159/99, on the file of the Court of the VI Additional Sessions Judge, Chennai were directed to be released on bail as per order of this Court dated 22.5.2001 and passed in Crl.Mp.No.2815/2001. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 05.04.2007 CORAM: THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN Crl.A.No.427 of 2001 1.Paramasivam 2.Elumalai ..Appellant/Accused vs. State by: The Inspector of Police, G-3, Kilpauk Police Station, Chennai. ..Respondent/Complainant Prayer: This Appeal has been preferred under Section 374 of Cr.P.C., against the judgment dated 20.4.2001 made in S.C.No.159 of 1999 on the file of the VI Additional Sessions Judge, Chennai. For Appellant : Mr.R.Rajesekaran For Respondent : Mr.R.Muniyappa Raj, Govt Advocate (Crl.Side) ORDER This appeal has been preferred against the judgment in S.C.No.159 of 1999 on the file of the VI Additional Sessions Judge, Chennai. 2. The short facts of the prosecution case relevant for the purpose of deciding this appeal are as follows:- On 11.08.1998 at about 6.30 pm when the deceased Elumalai was taking his supper, A2 when questioned the deceased Elumalai about the raising of his voice, the deceased Elumalai had assaulted A2 with a stick and on https://hcservices.ecourts.gov.in/hcservices/ seeing this A1 intervened to save his brother A2 from the assault of the deceased Elumalai, the deceased Elumalai had assaulted A1 on his head with stick and in retaliation A1 had assaulted the deceased Elumalai with the stick on the head which resulted in the death of Elumalai in the hospital on the next day. Hence, A1 has been charged under Section 302 IPC and A2 has been charged under Section 302 r/w 109 IPC. 3. The case was taken on file by the learned II Metropolitan Magistrate in PRC.No.9759 of 1998 and on appearance of the accused on summons, copies under Section 207 of Cr.P.C., were furnished to the accused 1 and 2 and since the case is triable by a Court of Sessions, the learned Magistrate has committed the case to the Court of Sessions under Section 209 of Cr.P.C. The learned Sessions judge had framed charges under Section 302 IPC against A1 and the charges under Section 302 r/w 109 IPC against A2 and when questioned the accused pleaded not guilty. 4. On the side of the prosecution P.W.1 to P.W.13 were examined and Ex.P.1 to Ex.P.15 were exhibited and M.O.1 to M.O.7 were marked. 5. P.W.1 to P.W.4 are the eye witnesses. P.W.1 would depose that he belongs to Thazhkuppam Village and on 27.7.1998 contractor Rajamanikam had brought him along with Elumalai, Sriraman, Sivalingam, Veerappan, Govindarajan and Krishnan for building construction work, which was in progress at Door No.142, E.Ve.R.Road, Kilpauk and that they were residing in the same building and attending to the construction work along with A1 & A2. On 11.8.1998 there was no work for them, hence at about 4.00 pm they went to beach and returned at about 6.30 pm and at that time he (P.W.1), Govindarajan and the deceased Elumalai were taking their supper and another Elumalai S/o.Perumal Gounder raised a hue and cry and at that time the deceased Elumalai questioned A2-Elumalai by saying that he is making such a hue and cry like a cow-boy, immediately the deceased Elumalai had bet A2 with his hand and in retaliation A2 pushed the deceased Elumalai on the ground. Enraged at it the deceased Elumalai took out a log and assaulted on the left leg of A2 and when A1 intervened, the deceased Elumalai also assaulted A1 on the right side of his head and on his right fingers. Immediately A1 snatched the log from the hands of the deceased Elumalai and bet on the head of the deceased Elumalai with the same log and immediately the deceased Elumalai fell unconsciously. Thereafter P.W.1 along with Govindarajan and Sriram removed the deceased Elumalai to Kilpauk Government Hospital from where they were referred to General Hospital, Chennai, and without responding to the treatment at the General Hospital, Chennai, Elumalai breathed his last at about 2.00 pm on the following day. The injured accused were also came to General Hospital, Chennai, on the same night on the date of occurrence and they were also treated in General Hospital, Chennai. On 12.8.1998 at about 2.30 or 3.00 pm, the Sub-Inspector of Police came to the General Hospital, Chennai, to whom he has preferred Ex.P.1-complaint. He would identify M.O.1 as the log used by A1 at the time of the occurrence. https://hcservices.ecourts.gov.in/hcservices/ 6. P.W.2 has also corroborated the evidence of P.W.1. He would depose that the deceased Elumalai had assaulted A2 with a stick on both his legs and when A1 intervened, the deceased Elumalai had also attacked A1 with a log on this head and thereafter in retaliation A2 caught hold of the deceased Elumalai and A1 attacked the deceased Elumalai by snatching the log from his hand on the head of the deceased Elumalai, who fell down unconsciously and that he (P.W.2) along with P.W.1, Govindarajan, Sriram and Sivalingam, removed the deceased Elumalai to Kilpauk Government Hospital from where he was referred to General Hospital, Chennai, and that he died on the next day at about 2.00 pm. P.W.2 has also identified M.O.1 as the log used by A1 to assault the deceased Elumalai. 7. P.W.3 is also an ocular witness to the occurrence. In corroboration of the evidence of P.W.1 and P.W.2, he would also state that the deceased Elumalai had assaulted A2 with log and when A1 intervened, he was also beaten up with the same log on the head by the deceased Elumalai and thereafter A2 caught hold of the deceased Elumalai and A1, after snatching the log from the deceased Elumalai, had beaten on the head of the deceased Elumalai, which resulted in his death on the following day at General Hospital, Chennai. P.W.3 has also identified M.O.1 as the weapon used by A1 at the time of occurrence. 8. P.W.4 has also corroborated the evidence of P.W.1 to P.W.3 in respect of the assault made by the deceased Elumalai and also the assault made by A1 & A2 on the deceased Elumalai. But P.W.4 would say that before the Doctor P.W.9, who had treated the deceased Elumalai at the General Hospital, Chennai, he said that he (deceased Elumalai) had sustained injury only due to a fall from a building from a height of 10 feet in order to get Rs.10,000/- as compensation. 9. P.W.12 is the Sub-Inspector of Police, who had registered the case on the basis of complaint Ex.P.1 under Cr.No.1606 of 1998 under Section 341 & 302 IPC. Ex.P.10 is the FIR. 10. P.W.13 is the Inspector of Police, who took up the investigation on the basis of Ex.P.10. He had visited the place of occurrence and prepared Ex.P.11-observation mahazar in the presence of P.W.6 and had drawn a rough sketch Ex.P.12 and has recovered blood stained sand and sample sand M.O.6 & 7 respectively under Ex.P.13 mahazar in the presence of P.W.8. He had conducted inquest at the mortuary at General Hospital, Chennai, where the corpse of the deceased Elumalai was kept preserved. Ex.P.14 is the inquest report. He had examined the witnesses and recorded their statement and arrested the accused on 13.8.1998 at Broad way bus stand and recorded the confession statement of the accused and on the basis of the confession statement of A1 he had recovered M.O.1-stick which was used by him in the occurrence. Ex.P.15 is the admissible portion of the confession statement of A1. P.W.13 had sent the accused for judicial custody. https://hcservices.ecourts.gov.in/hcservices/ 11. P.W.8 is the Assistant in the Chief Metropolitan Magistrate Court. He would state that the material objects connected with this case viz. M.Os. 1, 2, 3, 5, 6 & 7 were sent to forensic science laboratory for chemical examination along with Ex.P.4 letter of requisition. Ex.P.5 is the analyst's report. 12. P.W.9 is the Doctor, who had treated both the accused as well as the deceased Elumalai. Ex.P.6 is the copy of the accident register issued to A1 for the injuries he had sustained and Ex.P.7 is the copy of the accident register issued to A2. P.W.9, the doctor, would depose that on 11.8.1998 at about 9.10 pm the deceased Elumalai was brought to the General Hospital by one K.Govindaraj, who had informed that the deceased Elumalai had sustained injury due to a fall from a building from an height of 10 feet on the same day at 7.30 pm. She (P.W.9) has further deposed that the deceased Elumalai also informed her that he had sustained the injury due to a fall from a building, which is under construction at Kilpauk Brindavan Street, from an height of 10 feet. Ex.P.8 is the copy of the accident register pertaining to the injury sustained by the deceased Elumalai. 13. P.W.10 is the Doctor, who had conducted autopsy on the corpse of the deceased Elumalai. Ex.P.9 is the post-mortem certificate, in which the following antemortem injuries on the corpse were noted:- i) An abrasion measuring 4 x 2 cm on the left leg ; an abrasion measuring 2 x 2 cm on the left wrist. ii)Sutured wound measuring 10 cms in length on the head. iii) On exploration of the said wound blood clots were seen on the front and middle portion of the said wound on the head. iv) A fracture on the centre of the scalp measuring 5 x 2.5 cm v) A compressed wound measuring about 10 x 9 cm on the right side and centre and back portion of the head. vi) Blood haemorrhage seen on the centre and rear portion of the brain. Hyoid bones were found intact. Both the lungs were found pale. Stomach was empty. Urinal bladder was empty. Liver and both kidneys were found pale. The doctor has opined that the deceased would have died due to the injury he had sustained on the head. 14. P.W.11 is the post-mortem head constable, who had identifed the corpse to P.W.10 during post-mortem. After post-mortem, he had seized M.O.5 from the corpse and handed it over to the Inspector of Police. 15. P.W.13 after completing the investigation had filed the charge sheet on 6.12.1998 against the accused under Section 341 and 302 IPC. https://hcservices.ecourts.gov.in/hcservices/ 16. On the basis of the oral and documentary evidence the learned trial judge has held that the charges levelled against A1 and A2 have been proved beyond any reasonable doubt and accordingly convicted A1 under Section 304 IPC and sentenced to undergo 5 years RI and slapped a fine of Rs.1000/- with default sentence and A2 was also convicted under Section 304 r/w 109 IPC and sentenced to undergo 5 years RI and levied a fine of Rs.1000/- with default sentence. Aggrieved by the findings of the learned trial judge, this appeal has been preferred by A1 & A2. 17. Now the point for determination in this appeal is whether the guilt against the A1 & A2 has been proved beyond any reasonable doubt to sustain the conviction and sentence imposed by the trial Court or to be set aside for the reasons stated in the grounds of appeal? 18. The Point:- 18(a) Heard Mr.R.Rajesakaran learned counsel for the appellants and Mr.R.Munniappa Raj, learned Government Advocate (Crl.Side) and considered their rival submissions. The learned counsel for the appellant focused the attention of this Court to the evidence of P.W.9, the doctor, who had examined the deceased Elumalai on 11.8.1998 at about 9.30 pm and issued Ex.P.8, wound certificate. According to the Doctor P.W.9, the deceased Elumalai was brought to the hospital by one Govindaraj and both Govindaraj and the deceased Elumalai informed her (P.W.9) that the deceased Elumalai had sustained the injury only due to a fall from a building from the height of 10 feet. The learned Government Advocate relied on the evidence of P.W.4 who would give an explanation for the above said information passed on to the doctor by the deceased Elumalai and Govindaraj and according to (P.W.4) Govidaraj, only to get Rs.10,000/- as compensation they informed the doctor P.W.9 that the deceased Elumalai had fallen from a building from a height of 10 feet. This explanation causes a cloud on the case of the prosecution and it is unbelievable. The natural conduct of a person who had been assaulted, according to the prosecution, by A1 to A2 with a log on head will be to reveal the truth before the doctor, who is going to treat him for the injury he had sustained. The evidence of P.W.9 is that not only Govindaraj, the deceased had informed her that he (deceased) has sustained injury due to a fall from a building, which is under construction, from a height of 10 feet. The deceased Elumalai was admitted in the General Hospital on 11.8.1998 at about 9.10 pm. According to P.W.10, the doctor, who had conducted autopsy, the death intimation of the deceased Elumalai was received by him on the next day i.e., on 13.8.1998 at about 12 noon. There is no explanation forth coming from the prosecution as to why a dying declaration was not recorded from the deceased Elumalai, who was alive for nearly 15 hours from the time of admission on 11.8.1998. https://hcservices.ecourts.gov.in/hcservices/ 18(b) In Ex.P.1-complaint there is absolutely no averment that the deceased Elumalai had only to get compensation of Rs.10,000/- had informed the doctor P.w.9 that the deceased Elumalai had fallen from a building from a height of 10 feet. In fact Ex.P.1-complaint was preferred by P.W.1-Durai and not by P.W.4-Govindaraj. He alone had brought the deceased Elumalai to the hospital and he is also an ocular witness to the crime according to the prosecution. All the three witnesses viz. P.Ws.1 to 3 would state that the deceased Elumalai had assaulted A2 with a log on both his legs at first and then also attacked A1 who had intervened to save A2 who is none other than the brother of A1 from the assault of the deceased Elumalai. It is in evidence that after the deceased Elumalai attacked A1 & A2 with a log, the same log was snatched by A1 and the deceased Elumalai was attacked by A1. When A1 was questioned under Section 313 of Cr.P.C., he would say that only in self-defence he had pushed the deceased Elumalai. It is further in evidence that P.W.3 has admitted that both P.W.1 and the deceased Elumalai had consumed liquor and they were under the influence of arrack at the time of occurrence. In the cross-examination P.W.4 would also admit that the aggressor for the occurrence was the deceased Elumalai. P.W.4 in categorical terms would admit in cross-examination that only in self-defence the accused have pushed the deceased Elumalai. The wound certificate relating to A1 under Ex.P.6 would show that he had sustained a degloving (exposure of the bony mandibular anterior or posterior regions by oral surgery) injury on the middle finger on the right hand and abrasion on the fore head and also in this aspect, the medical evidence of P.W.9, the doctor, who had treated A1 is that he could see a lacerated injury on the left side of the fore head and middle finger of the right hand was hanging on the skin. Ex.P.7 is the copy of the accident register relating to A2 which shows abrasion on the left knee and both of them were referred to radiology department to take xray but the xray report has not been filed along with Ex.P.6 & 7. From the above said lacuna in the prosecution case will definitely lead us to an inference that the occurrence would not have occurred as narrated by the prosecution and that the deceased Elumalai was the aggressor for the occurrence and only in self-defence the accused have pushed him down. Point is answered accordingly. https://hcservices.ecourts.gov.in/hcservices/ 19. In the result, the appeal is allowed and the conviction and sentence imposed on A1 & A2 by the learned trial judge in S.C.No.159 of 1999 on the file of VI Additional Sessions Judge, Chennai, is set aside and A1 & A2 are acquitted of the charges levelled against them. Bail bonds stands cancelled. Fine amount shall be refunded to A1 & A2. ssv Sd/- Asst.Registrar /true copy/ Sub Asst.Registrar To 1.The VI Additional Sessions Judge, Chennai. 2. - do- Thro' The Principal Sessions Judge, Chennai. 3.The Metropolitan Magistrate No.II, Egmore, Chennai. 4. - do- Thro' The Chief Metropolitan Magistrate, Chennai. 5. The Superintendent, Central Prison, Chennai. 6.The Public Prosecutor, High Court, Madras. 7.The Inspector of Police, G-3, Kilpauk Police Station, Chennai. 8.The Superintendent, Central Prison, Vellore. RS(CO) dcp/18.4.07 Crl.A.No.427 of 2001 https://hcservices.ecourts.gov.in/hcservices/