BAIL SLIP The Appellant/Accused namely Sekar was directed to be released on bail in and by the order of this Court dated 14.06.2002 made in Crl.M.P.No.5164 of 2002 made in Crl.A.No.821 of 2002 on the file of this High Court, Madras. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 03.07.2009 C O R A M THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR Crl.A.No.821 of 2002 Sekar ..Appellant/Accused Vs. The State Rep. by the Inspector of Police Sethiathope Police Station ..Respondent/Complainant This Criminal Appeal has been filed under Section 374 of Criminal Procedure Code as against the order of conviction and sentence dated 21.05.2002 made in S.C.No.148 of 2001 by the Additional District Sessions Judge, Chidambaram. For Appellants : Mr.R.Srinivas For Respondent : Mr.R.Muniapparaj, Govt. Advocate (Crl. Side) J U D G M E N T Accused No.3 in Sessions Case No.148/2001 on the file of the Additional District and Sessions Judge (Fast Track Court), Chidambaram, who stood charged for an offence punishable under Section 307 r/w 34 IPC but found guilty and convicted for an offence under Section 325 IPC instead of 307 IPC and sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.500/- with a default sentence of 3 months simple imprisonment in case of commission of default in payment of fine, has preferred this criminal appeal under Section 374 Cr.P.C challenging the above said conviction and sentence. The appellant (A3) was prosecuted along with two other persons (A1 and A2) for the said offence and the appellant alone was convicted while the other two accused (A1 and A2) were acquitted. https://hcservices.ecourts.gov.in/hcservices/ 2. The case of the prosecution, in brief, can be stated as follows:- i) The appellant herein (A3), two other persons (A1 and A2) who were prosecuted along with the appellant herein and the prosecution witnesses Velmurugan, Kunjithapadham, Pitchaiammal, Pandian, Chandrakasu and Gajendran (P.Ws.1 to 6) are the residents of P.Puthur Village, Kattumannargudi Taluk, Cuddalore District. There was an illicit intimacy between the appellant herein (A3) and one Amudha, daughter-in-law of the elder brother of P.W.2-Kunjithapadham. The appellant herein (A3) was warned by P.W.1-Velmurugan in this regard. On 14.07.1998 while P.W.1-Velmurugan was returning home after finishing the day's work, the appellant herein (A3) caused an accident by dashing his cycle against P.W.1. The same was informed by P.W.1 to his elder brother Kunjithapadham (P.W.2) and his wife Pitchaiammal (P.W.3). Thereafter P.Ws.1 to 3 went to the residence of the village head (nattamai), met him at about 9.00 p.m on the same day and started informing him of the misdeeds of the appellant herein (A3). ii) While they were thus narrating what happened, the appellant herein (A3), Dhanasingh (A1) and Murugavelu (A2) came to the said place with a common intention of causing death of P.W.2- Kunjithapadham. The above said Dhanasingh (A1) and Murugavelu (A2) caught hold of P.W.2-Kunjithapadham and the appellant herein (A3) inflicted cut injuries on the left hand, head and back using a knife. The injured was thereafter admitted in the Government Hospital, Chidambaram at 1.35 a.m on 15.07.1998. P.W.7-Dr.Ravichandran noted the injuries found on P.W.2 and admitted him as an in-patient for treatment. Subsequently, P.W.2 was sent to Cuddalore Government Hospital for better management. X-Rays taken for P.W.2 revealed a fracture of ulna on the left hand. P.W.9-Dr.Sethu was the Radiologist who caused M.O.1 - X-rays to be taken to P.W.2 and on examining the X-ray films, he gave Ex.P8-Report opining that the upper part of the ulna on the left hand was found broken. Based on the Radiologist's report marked as Ex.P8 and the clinical observations made by him, P.W.7-Dr.Ravichandran issued Ex.P3-Wound certificate certifying that P.W.2 had sustained the following injuries:- i)a cut injury exposing the frontal bone above the left eye brow 6 x 3 cms Frontal bone cut. Blood clot present; ii)a laceration of the left lower end of forearm Flexer aspect 4 cm x 4 cm muscles and tendons cut; and iii)a cut injury over the left lower 1/3 of forearm exposing the muslces. Bleeding present. https://hcservices.ecourts.gov.in/hcservices/ P.W.7 opined that out of the above said three injuries, injury No.2 alone was grievous in nature, whereas other two injuries were simple injuries. iii) Meanwhile, P.W.1-Velmurugan had gone to Sethiathope Police Station and lodged Ex.P1-complaint in writing, based on which P.W.8- Tamilmaran, the then Sub-Inspector of Police attached to Sethiathope Police Station prepared Ex.P4-First Information Report in the printed format and registered a case on the file of Sethiathope Police Station in Cr.No.369/1998 for alleged offences punishable under Sections 341, 394, 324 and 506(ii) IPC. He himself took up the investigation of the case, visited the place of occurrence and prepared Ex.P5-Observation Mahazar and Ex.P6-Rough sketch in the presence of witnesses. During the course of investigation, he also recorded the statement of P.W.2-Kunjithapadham at the Government Hospital, Cuddalore and altered the case by substituting Section 307 IPC for Section 506(ii) IPC found in the original of FIR and sent Ex.P7-Alteration Report to the court. Thereafter, one Lakshmi Narayanan, the Inspector of Police of the circle took up further investigation of the case, completed investigation and submitted a final report on 24.02.1999 alleging commission of an offence punishable under Section 307 IPC by Dhanasingh (A1) and an offence punishable under Section 307 IPC r/w Section 34 IPC by Murugavelu (A2) and Sekar, the appellant herein (A3). 3. The learned Judicial Magistrate No.1, Chidambaram took the final report on file as PRC No.14/2001, supplied copies of documents under Section 207 Cr.P.C. free of cost to the accused persons and committed the case for trial to the Sessions Court, Cuddalore Division as the offence alleged was exclusively triable by a Court of Session. The learned Principal Sessions Judge, Cuddalore Division, Cuddalore took the case on file as S.C.No.148/2001 and made over the same to the Additional District and Sessions Judge (Fast Track Court), Chidambaram for disposal according to law. 4. Apparently, there was a mistake in the final report submitted by the Investigating Officer. In the complaint as well as the statement of witnesses, it had been stated that it was the appellant herein (A3) who caused the injuries by cutting P.W.2 with a knife while Dhanasingh (A1) and Murugavel (A2) caught hold of P.W.2 in order to facilitate the act of the appellant herein(A3). The Investigating Officer (Inspector of Police) committed an error in stating that it was A1 who cut P.W.2 with a knife and A2 and the appellant herein (A3) were the persons who caught hold of P.W.2. This mistake was noticed by the learned trial judge while framing charges. Hence the learned trial judge has corrected the mistake and rightly framed a charge for an offence punishable under Section 307 IPC (as the first charge) against the appellant herein (A3) and a charge for an offence punishable under Section 307 r/w 34 IPC (as the https://hcservices.ecourts.gov.in/hcservices/ second charge) against A1 and A2. All the accused persons pleaded not guilty and expressed their desire for having the case tried. 5. P.Ws.1 to 10 were examined, Ex.P1 to P8 were marked and M.O.1 series were produced on the side of the prosecution in order to prove the charges framed against the accused persons. After recording the evidence adduced on the side of the prosecution, the accused persons were questioned under Section 313(1)(b) Cr.P.C. regarding the incriminating materials found in the evidence adduced on the side of the prosecution. They denied them as false and reiterated their stand that they were not guilty. No witness was examined and no document was marked on the side of the accused persons. 6. After hearing the arguments advanced on either side, the learned trial judge considered the evidence in the light of the said arguments and upon such consideration, held that accused No.1 and 2 - Dhanasingh and Murugavelu were not guilty of the offence with which they stood charged. However, the learned trial judge held that the appellant herein (A3) was guilty of the offence punishable under Section 325 IPC instead of the offence under Section 307 IPC for which charge No.1 was framed against him, convicted him for the offence punishable under Section 325 IPC and sentenced him to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs.500/- for the above said offence. The learned trial judge has also imposed a default sentence of simple imprisonment for three months in case of commission of default in payment of the above said fine. 7. Aggrieved by and challenging the conviction and sentence, the appellant herein (A3) has come forward with the present appeal under Section 374 Cr.P.C on various grounds set out in the Appeal petition. 8. The point that arises for consideration in this appeal is as follows:- "Whether the trial court is right in convicting the appellant (A3) and sentencing him to undergo a rigorous imprisonment of seven years and to pay a fine of Rs.500/- along with a default sentence of three months simple imprisonment for an offence under Section 325 IPC? " 9. Mr.R.Srinivas, learned counsel for the appellant advancing arguments on behalf of the appellant, made the following submissions:- i) The judgment of the trial court convicting the appellant and sentencing him to undergo seven years rigorous imprisonment and to pay a fine of Rs.500/- for an offence punishable under Section 325 IPC is against law, weight of evidence and probabilities of the case. The court below committed an error in awarding maximum sentence of 7 years rigorous imprisonment for the offence punishable under Section https://hcservices.ecourts.gov.in/hcservices/ 325 IPC. The prosecution has miserably failed to prove its case against the appellant beyond reasonable doubt. There was a delay in registering the case and also in sending the FIR to the concerned Judicial Magistrate and the same was not adverted to by the trial Court. There was utter confusion in the prosecution case as revealed from the final report submitted by the Investigating Officer. The court below committed an error in readily accepting and relying on the interested testimonies of P.Ws.1 to 3 without subjecting the same to the test of careful scrutiny before acceptance. The genesis of the occurrence itself has not been proved besides, there being failure on the part of the prosecution to prove the motive alleged. ii) The inconsistencies found in the evidence of the prosecution witnesses vis-a-vis the statement of P.W.2-Kunjithapadham to the Medical Officer at the time of admission - were not properly appreciated by the trial court. The effect of non-recovery and non- production of the blood stained clothes of P.W.2 and the weapons allegedly used in the occurrence by the accused persons was also not properly considered by the trial court. According to the prosecution version, the occurrence took place when P.Ws.1 to 3 were narrating the previous incident forming the motive part of the prosecution case at the residence of nattamai Govindasamy, but the said nattamai- Govindasamy has not been examined on the side of the prosecution. The Investigating Officer has not even chosen to examine him in the course of investigation. The inconsistencies regarding the injuries between the evidence of P.W.1 and Ex.P5-Wound certificate were not considered by the trial court in proper perspective. While holding the other two accused persons not guilty of the offence with which they stood charged, the Trial Court should have acquitted the appellant (A3) also. In fact there was a confusion created by the Final Report of the Investigating Officer in which accusations were made as if 'A1' had caused injuries to P.W.2 in an attempt to cause his death whereas 'A2' and the appellant herein/A3 cooperated with him in the commission of the said offence by catching hold of P.W.2 and facilitating the commission of the above said offence by A1. The same was not in consonance with the complaint and statement of witnesses. Because of such a confusion alone, the prosecution has omitted to examine the Investigating Officer who completed the investigation and submitted the final report. iii) The fact of non-examination of the Investigating Officer having led to a disadvantage to the appellant (A3) and other accused persons as they had lost the chance of eliciting contradictions relating to the statement of witnesses recorded under Section 161 Cr.P.C - has not been properly considered by the trial court. The judgment of the trial court convicting the appellant (A3) alone, that too, for a lesser offence than the one for which the charge was framed and imposing the maximum sentence prescribed for the said offence suffers from discrepancies and infirmities as the finding of the court can be termed erroneous and discrepant, if not perverse. https://hcservices.ecourts.gov.in/hcservices/ Many improbabilities found in the prosecution case have not been properly considered by the trial court. Had it considered the evidence in proper perspective, the trial court would have arrived at the conclusion that the appellant herein(A3) was also not guilty of not only the offence with which he stood charged but also of any lesser offence, specifically an offence under Section 325 IPC. 10. This court heard the submissions made by the learned Government Advocate (Crl. Side) representing the respondent as a reply to the above said submissions made by the learned counsel for the appellant and paid its anxious considerations to the same. The materials available on record were also perused by this court. 11. The third accused before the trial court is the appellant herein. He was prosecuted along with his father and brother, who figured as A1 and A2 respectively. According to the prosecution case, the appellant herein (A3) had developed illicit intimacy with one Amutha, wife of Sivanesan and he was reprimanded for the same by P.W.1-Velmurugan and his brother, namely P.W.2-Kunjithapadham, which resulted in an enmity between the appellant herein (A3) and P.Ws.1 and 2. It is the further case of the prosecution that on 14.07.1998 at about 7.00 p.m, while P.W.1 was returning home, the appellant herein (A3) hit him with his cycle and the said incident was reported to the village nattamai - Govindasamy at his residence at about 9.00 p.m on the same date. It is the case of the prosecution that while they were narrating the earlier incident to Nattamai Govindasamy, the appellant along with his father and brother, who were arrayed as accused 1 and 2, came to the residence of said nattamai and the appellant herein (A3) attacked P.W.2 with a knife on head, left hand and back repeatedly, while the other two persons (A1 and A2) were catching hold of P.W.2 in order to facilitate the attack made by the appellant herein (A3). The alleged illicit intimacy of the appellant herein (A3) with one Amudha, for which the appellant was reprimanded by P.W.1 and others was said to be the motive for the occurrence. 12. Sivanesan, the husband of the said Amudha is a close relative of P.Ws.1 to 3. P.W.2 has admitted that Amutha is his brother's daughter-in-law. P.Ws.1 to 3 have stated in their evidence that the appellant Sekar (A3) had developed an illicit intimacy with Amutha for which he was reprimanded by P.Ws.1 and 2 which resulted in an enmity between the appellant herein (A3) and P.Ws.1 and 2. Though the said witnesses have made clear statements in their evidence in this regard, they were not cross-examined by the counsel for the accused in the trial court regarding the alleged motive. Therefore the evidence of P.Ws.1 to 3 to the effect that there was an enmity between the appellant herein (A3) as P.Ws.1 and 2 had warned the appellant herein (A3) not to continue the illicit intimacy he had with Amutha, stand unchallenged and uncontroverted. Therefore, we can safely come to a conclusion that there are unchallenged and uncontroverted evidence to show that there was https://hcservices.ecourts.gov.in/hcservices/ enmity between the appellant A3 and and P.Ws.1 and 2 and the same would have provided motive for the appellant and other accused persons to attack P.W.2. 13. But proof of motive alone shall not be enough to prove the charge against the accused. Proof of motive is one of the circumstances towards the proof of the occurrence. Motive is a double edged weapon capable of being used for and against the prosecution. Therefore we have to consider the evidence adduced on the side of the prosecution relating to the occurrence regarding which the case was registered. 14. As per the prosecution theory, the occurrence in which P.W.2 was attacked was preceded by a previous occurrence which took place a couple of hours earlier. It is the case of the prosecution that on 14.07.1998 at about 7.00 p.m, while P.W.1 was returning home after completing the day's work, the appellant herein (A3) hit him with his cycle. Excepting the testimony of P.W.1, there is no other direct evidence in proof of the said previous occurrence. However, P.Ws.2 and 3 have supported the evidence of P.W.1 in this regard by deposing that P.W.1 informed P.Ws.2 and 3 of the above said previous occurrence, pursuant to which P.Ws.1 to 3 went to the residence of nattamai Govindasamy to inform him. According to the evidence of P.Ws.1 to 3, while they were narrating the previous episode to Govindasamy, the appellant herein (A3) and the other accused persons (A1 and A2)came there and attacked P.W.2. In this regard it is pertinent to note that the above said nattamai Govindasamy has not been examined on the side of the prosecution as a witness. On the other hand his son Pandian has been examined as P.W.4. P.W.4 has stated in his evidence that his father Govindasamy was not the nattamai of the village for about 10 years and that he kept himself away from all problems of the villagers for the said period of over 10 years. The occurrence is said to have taken place on 14.07.1998. P.W.4 was examined on 06.03.2002 within three yeas thereafter. As P.W.4 did not support the prosecution case, he was treated hostile and cross-examined by the public prosecutor. Even then no point useful to the prosecution case could be elicited from him. 15. Similarly P.W.5-Chandhirakasu has not deposed anything regarding the previous occurrence or the overt acts on the part of the appellant and the other accused persons. P.W.5 is a close relative of P.Ws.1 to 3, as seen from the evidence of P.W.1. He admits that P.W.5-Chandhirakasu is the son of his senior paternal uncle. P.W.6-Gajendran is not an eye witness for any of the occurrences. He has been examined only as an attestor of the Observation Mahazar. As he has simply stated that he affixed his signature as per the direction of the police and pleaded that he did not know the contents of the document which was signed by him, his signature alone has been marked as Ex.P2 whereas the Mahazar has been marked as Ex.P5 through the Investigating Officer. P.W.1, in his https://hcservices.ecourts.gov.in/hcservices/ cross examination, would admit that the alleged nattamai Govindasamy and his son Pandian (P.W.4) were the persons interested in the welfare of P.Ws.1 to 3. Even then they were not able to examine the said Govindasamy and his son Pandian examined as P.W.4 has not only failed to support the case of the prosecution but also asserted that his father Govindasamy was not the nattamai and he was keeping himself away from the problems of the village for about 10 years (6 years prior to the date of occurrence and 4 years subsequent to the date of occurrence) up to the date on which he deposed as a witness before the trial court, viz. 06.03.2002. When such is the case, the only evidence available on the side of the prosecution regarding the alleged occurrence that took place at 9.00 p.m on 14.07.1998 at the residence of Govindasamy and the previous occurrence on the very same day which allegedly took place at 7.00 p.m, are the testimonies of P.Ws.1 to 3. P.Ws.1 to 3 are members of one and the same family. P.Ws.1 and 2 are brothers. P.W.3 is the wife of P.W.2. P.W.1 is the de-facto complainant, whereas P.W.2 is the injured. Therefore, it is quite obvious that all the three witnesses are interested witnesses. The mere fact that the witnesses are interested shall not be enough to discard their evidence as unreliable. On the other hand, before accepting their evidence and relying on them, the same must be put to the test of careful scrutiny. When such a test of careful scrutiny is applied and the evidence of P.Ws.1 to 3 are considered in the light of the other evidence regarding the facts and circumstances of the case, as rightly pointed out by the learned counsel for the appellant, this court has to come to the conclusion that their evidence is liable to be rejected as unreliable. 16. Ex.P1 has been produced as the complaint lodged by P.W.1. The said complaint is said to have been given on 15.07.1998 at about 8.30 a.m. The occurrence is said to have taken place at 9.00 p.m on 14.07.1998. There is a gap of 11 ½ hours between the time at which the occurrence allegedly took place and the time of lodging of the complaint. No acceptable reason has been assigned for such an inordinate delay. In Ex.P4-First Information Report, at column 7, it has been noted that the delay was caused by the de-facto complainant. Why such a delay was caused? – has not been explained anywhere in the First Information Report or in the complaint. 17. The injured P.W.2 was admitted in the Government Hospital, Chidambaram at 1.35 a.m on 15.07.1998 and was thereafter referred to the Government Hospital, Cuddalore on the very same day for further management. There is no evidence as to the time at which he was admitted in the Government Hospital, Cuddalore. When was he discharged from the said hospital? – is also not known. P.W.2 alone has stated that he took treatment there for seven days. On the other hand, the alteration report Ex.P7 seems to have been prepared and sent to the court on 21.07.1998. Apart from the unexplained delay of 11½ hours in lodging the FIR, there is also a delay in the FIR reaching the court. The complaint marked as Ex.P1 and the First https://hcservices.ecourts.gov.in/hcservices/ Information Report marked as Ex.P8 reached the court only at 10.30 a.m on 16.07.1998. It took 26 hours from the moment the case was allegedly registered for the complaint and FIR to reach the Judicial Magistrate. In effect, the total delay (delay in lodging the complaint and the delay in the FIR reaching the court) comes to 37½ hours. No reason is forthcoming as an explanation for the said delay. 18. P.W.1 in his cross-examination admits that Sethiathope police station is on the way from P.Puthur; that they crossed Sethiathope police station and went to Chidambaram hospital and that however they did not chose to inform the police at Sethiathope police station on their way to the hospital. An attempt has been made on the side of the prosecution to show that P.W.1, with the intention of saving the life of P.W.2, chose to go to the Government hospital with P.W.1 to get him admitted there for treatment even without informing the police who were present in the police station, which was on the way to the hospital; that he chose to lodge a complaint the next day morning at about 8.30 a.m after returning form the hospital and that is why there was a delay of 11 ½ hours in lodging complaint with the police setting the criminal law in motion. P.W.1 in his evidence has stated that the Medical officer at Chidambaram Government Hospital referred P.W.1 to the Government Hospital, Cuddalore and after admitting P.W.2 in the Government Hospital, Cuddalore, he went to Sethiathope police station on 15.07.1998 at about 8.00 a.m and gave Ex.P1-complaint in writing. P.W.1, in his chief examination stated that he narrated the incident orally and the same was recorded by the police. The vernacular version of the same