Bail Slip The Appellants viz.Kanagasabai and Selvanayakam were directed to be released on bail in and by the order of this Court dated 24.6.2002 made in Crl.M.P.No.5163/2002 in Crl.A.No.820/2002. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 10.06.2009 C O R A M THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR Crl.A.No.820 of 2002 1. Kanagasabai 2. Selvanayakam ... Appellants Accused 2 & 3 Vs. The State Re. 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 conviction and sentence imposed in S.C.No.270/2001 dated 29.05.2002 by the learned Additional District Sessions court (Fast Track Court), Chidambaram to set aside the same. For Appellant : Mr.R.Srinivas For Respondents: Mr.R.Muniapparaj, Govt. Advocate (Crl. Side) J U D G M E N T The appellants herein, who figured as accused No.2 and 3 in S.C.No.270/2001 on the file of the Additional District and Sessions Judge (Fast Track Court), Chidambaram stood charged with offences punishable under Sections 148, 341, 326, 324 and 307 IPC. Along with the appellants three more persons by name Samithurai, Yasothai and Sarala were also prosecuted in the said case for offences punishable under Sections 147, 341, 325 and 323 IPC. The trial ended in acquittal of the above said three persons (A1, A4 and A5). The first appellant herein (A2) was convicted for offences punishable under Sections 326 and 324 IPC whereas the second appellant (A3) was convicted for offences punishable under https://hcservices.ecourts.gov.in/hcservices/ Sections 326 and 323 IPC. The first appellant (A2) was sentenced to undergo 10 years rigorous imprisonment and pay a fine of Rs.500/- along with a default sentence of 3 months simple imprisonment for the offence punishable under Section 326 and to undergo 3 years rigorous imprisonment and pay a fine of Rs.500/- with a default sentence of 3 months simple imprisonment for the offence punishable under Section 324 IPC. The second appellant (A3) was sentenced to undergo rigorous imprisonment for 10 years and pay a fine of Rs.500/- with a default sentence of 3 months simple imprisonment for the offence punishable under Section 326 IPC and to undergo rigorous imprisonment for one year and pay a fine of Rs.500/- with a default sentence of 3 months simple imprisonment for the offence under Section 323. 2. As against the conviction and sentence, the appellants (A2 and A3) have come forward with the present appeal challenging the conviction recorded against them and the sentence imposed on them. 3. The case of the prosecution, in brief, can be stated as follows:- The appellants herein (A2 & A3) and the other accused persons (A1, A4 and A5) belong to Adhidravida community. The injured Velmurugan (P.W.6) and other prosecution witnesses, namely P.W.1 to 5 belong to Vanniyar community. All of them were residents of Koorapadi village. The habitants of Vanniyar is on the western side whereas the Harijan colony is located on the eastern side. Due to previous enmity, the appellants herein (A2 and A3) and the other accused persons who were acquitted by the trial court (A1, A4 & A5), collected themselves in an unlawful assembly on 26.03.2000 at about 11.30 a.m near the house of one Dhandapani in Koorapadi village with the common intention of causing death to P.W.6-Velmurugan. P.W.6-Velmurugan who has got lands on the eastern side of the Adhidravida Colony, was proceeding towards his field at about 11.30 a.m on 26.03.2000. On seeing P.W.6 coming there along with his cattle, in furtherance of the common object of the unlawful assembly, Samithurai (A1) instructed the other accused to beat and kill P.W.6-Velmurugan. Immediately, the second appellant (A3) attacked P.W.6 with the knife on his head and then on the chin. The first appellant/Kanagasabai (A2) attacked P.W.6 with the handle of spade fitted with an iron ring repeatedly on the occipital region of the head of P.W.6. Thereafter, P.W.6 was attacked by Samithurai (A1), Yasothai(A4) and Sarala(A5) with stones and sticks. As the injured P.W.6-was attacked by the accused persons on the head, he received extensive injuries and fell down. The said occurrence was witnessed by P.W.1-Minor and P.W.2-Kunchidam. They did not venture to prevent the accused persons, as the accused were armed with weapons. After attacking P.W.6, all the accused (5 in number) threw the weapons used by them for attacking P.W.6 and went away from the place. Thereafter, P.W.1 and P.W.2 laid the injured P.W.6 on a cot, took him to their residential area, brought a car from https://hcservices.ecourts.gov.in/hcservices/ Sethiathope and took him to the Government Hospital, Chidambaram for treatment. On their way to the hospital, they stopped at Orathur police station, where P.W.1-Minor gave a written complaint under Ex.P1. P.W.8-Vajjiram, the then Sub-Inspector of Police, Orathur police station received the said complaint, prepared Ex.P6-First Information Report in the printed format and registered a case in Crime No.59/2000 on the file of the said police station for offences punishable under Sections 147, 148, 341, 324 and 307 IPC against all the accused (A1 to A5). Meanwhile, the injured P.W.6 was treated by P.W.7-Dr.Balachander at the Government Hospital, Chidambaram. Ex.P5 is the Accident Register prepared by P.W.7 at the time of admission of P.W.6 for treatment. As the condition of P.W.6 was serious, he was referred to the Government Hospital, Cuddalore where from he was taken to a private hospital in Chennai, namely Apollo Hospital for further treatment. From the observations made by P.W.7 and from the reports received from Government Hospital, Cuddalore and Apollo Hospials, Chennai, P.W.7 gave a opinion that injury Nos.2, 3 and 4 found in Ex.P5 were grievous in nature and the other injuries found in the said document were simple in nature. 4. P.W.9-Pal Pandi, the then Inspector of Police, Sethithope circle got the information regarding the registration of the case at about 12.30 p.m on 26.03.2000. Immediately, he proceeded towards the place of occurrence in Koorapadi and started his investigation after receiving the copy of the FIR at about 1.30 p.m from the Sub-Inspector of police, Orathur. He prepared Ex.P3- Observation Mahazar and Ex.P7-Rough sketch in the presence of P.W.5-Nagaraj and one Arul. M.O.3-blood stained earth, M.O.4- sample earth, M.O.1 series-five granite stones and M.O.2 Series- handle or a spade fitted with an iron ring were recovered by him from the scene of occurrence under Ex.P4-Mahazar in the presence of the above said witnesses. He also recovered the dress materials of the injured, namely M.O.5-shirt, M.O.6-Lungie under Ex.P2-Form 95 when they were handed over to him by P.W.3-Ramasamy and one Thiruvengadam on 23.05.2000 at about 11.00 a.m. As P.W.9 was transferred thereafter, P.W.10-Murugesan, who succeeded P.W.9 in office, continued the investigation, recorded the statements of the injured witness-P.W.6 and the Medical Officer-P.W.7, collected the documents, completed the investigation and submitted a final report on 31.05.2000. 5. The final report submitted by P.W.10 was taken on file by the learned Judicial Magistrate No.2, Chidambaram on his file as PRC No.13/2001. After furnishing copies of the records free of cost to the accused under Section 207 Cr.P.C. the learned Judicial Magistrate No.2, Chidambaram committed the case for trial to the Principal Sessions Judge, Cuddallore District, Cuddalore. The learned Principal Sessions Judge took it on file as S.C.No.270/2001 and made over to the Additional District and Sessions Judge (Fast Track Court), Chidambaram for disposal according to law. https://hcservices.ecourts.gov.in/hcservices/ 6. Necessary charges were framed in the trial court, namely the court of the Additional District and Sessions Judge (Fast Track Court), Chidambaram. The accused pleaded not guilty. As many as 10 witnesses were examined as P.W.1 to P.W.10, eight documents were marked as Exs.P1 to P8 and six material objects were marked as M.Os.1 to 6 on the side of the prosecution in order to substantiate the charges made against the accused persons. 7. After completion of recording the evidence on the side of prosecution, the accused were questioned under Section 313(1)(b) Cr.P.C. as to the incriminating materials found in the evidence adduced on the side of the prosecution. They denied them as false. No witness was examined and no document was marked on the side of the accused. 8. The trial court heard the arguments advanced on either side and took the view that the prosecution had not proved the case against three of the accused persons, namely Samithurai (A1), Yasothai (A2) and Sarala (A5) and hence acquitted them of all the offences for which they faced trial. However, the learned Trial Judge came to the conclusion that the first appellant herein (A2) was guilty of offences punishable under Sections 326 and 324 IPC and that the second appellant (A3) was guilty of offences punishable under Sections 326 and 323 IPC, convicted them respectively for the above said offences and awarded punishments as stated above. 9. As against the conviction recorded and sentence awarded against each one of the appellants (A2 and A3) they have preferred the present appeal on various grounds set out in the appeal petition. 10. The point that arises for consideration in this appeal is, "whether the judgment of conviction and the order of sentence of the court below suffers from any defect or infirmity warranting interference by this court in this appeal?" 11. Advancing arguments on behalf of the appellants (A2 and A3) Mr.R.Srinivas, learned counsel made the following submissions. The judgment of the court below is against law, weight of evidence and probabilities of the case. Neither the prosecuting agency nor the witnesses examined on the side of the prosecution came out with the full and true facts. There is suppression of facts which alone will entitle the appellants/accused 2 and 3 to get the benefit of doubt. There was a delay in the FIR reaching the court which will be evident from the fact that the date in the date seal affixed by the court of the Judicial Magistarte has been corrected from 28th March 2000 to 27th March 2000, which will make it obvious that there was an attempt to show that there was either no delay at all or the delay, if any would be explainable. The https://hcservices.ecourts.gov.in/hcservices/ trial court failed to note that the medical evidence was inconsistent with the ocular evidence of the other prosecution witnesses. In the absence of production of any material record to show that there was fracture, the trial court should not have arrived at a conclusion that P.W.1 sustained fractures. The court below failed to note that the presence of the so-called eye witnesses was artificial and doubtful and the witnesses examined on the side of the prosecution regarding the occurrence are interested witnesses and the said fact was not properly appreciated by the court below. 12. The story of the prosecution as to how the complaint happened to be received and the First Information Report happened to be registered is highly doubtful. It is the evidence of P.W.8, Sub-Inspector of Police that P.W.1 gave a complaint in writing. He is not in a position to say whether the complaint was written by him or by any other person. P.W.2, who is said to have accompanied P.W.1 at the time of lodging of the complaint, has not stated anything about who scribed the complaint (Ex.P1). On the other hand, P.W.1 would say that the complaint was written by another person to his dictation as he was an illiterate. But he was not in a position to say who was that scribe. The signature or other particulars of the scribe are not found in the complaint. There is nothing in Ex.P1 complaint to suggest that it was written by somebody else. This aspect will also cause a serious doubt on the prosecution version regarding when and how the complaint happened to be lodged and the case happened to be registered. Many improbabilities and discrepancies found in the evidence of prosecution witnesses have been simply brushed aside by the court below. The non-production of the cot in which the injured (P.W.6) was allegedly carried from the place of occurrence and the non- examination of the driver of the car in which he was transported to the police station and then to the hospital will also create a reasonable suspicion in the story of the prosecution as to the manner in which and the time at which the complaint was lodged with the police. Though the investigating agency has chosen to come forward with a story that M.Os.1 to 4 were recovered from the scene of occurrence and M.Os.5 and 6 were recovered when they were produced by P.W.3 and another person, none of the material objects was sent to the Forensic Laboratory for examination to find out whether they contain any blood stain and if so whether the blood was a human blood and if possible to correlate the blood group of the injured with the group of the blood found in the said articles. There had been an intentional improvement in the story of the prosecution during the course of trial wherein the witnesses have stated that the second appellant (A3) was armed with a stick as well as a knife and he attacked the injured P.W.6 with both the weapons, whereas in the complaint marked as Ex.P1, there is no averment to the effect that second appellant (A3) was armed with a stick also and he attacked P.W.6-Velmurugan not only with the knife but also with the stick. The contents of the complaint are to the effect that second appellant-Selvanayagam https://hcservices.ecourts.gov.in/hcservices/ (A3) attacked the injured (P.W.6) on his hand and chin with a knife whereas the first appellant Kanagasabai (A2) attacked him with the handle of a spade on the head and body of P.W.6 and that the other three accused persons (A1, A4 and A5) alone attacked him with sticks and stones. This remarkable improvement over the complaint, as if the second appellant (A3) attacked P.W.6 with stick also was not properly considered by the court below. If it was properly considered, the court below could have come to the conclusion that there was a reasonable doubt regarding the prosecution version as to the details of the occurrence. 13. The learned counsel for the appellants contended further that, without examining the Medical officers who allegedly treated the injured at Appollo Hospitals, Chennai and without seeing the X-Ray or scan reports, the Medical Officer at Chidambaram, namely P.W.7 had chosen to given an opinion that there were fractures on the skull and dislocation of one of the shoulder joints; that the doctor himself was not disinterested; that the case of the prosecution as if the injured-P.W.6 was sent to the hospital along with a police memo for treatment has not been substantiated by producing the said police memo; that the Accident Register marked as Ex.P5 does not support the said case of the prosecution as there is nothing in Ex.P5-Accident Register to show that he was brought to the hospital with a police memo and that the court below has come to an erroneous conclusion that the appellants were guilty of offences punishable under Sections 326 and 324 and Section 326 and 323 respectively by accepting the evidence of interested witnesses without applying the test of careful scrutiny before acceptance. The learned counsel for the appellants also pointed out the fact that there was a long-standing enmity between the two communities in the said village; that the members of Vanniya community to which the prosecution witnesses belong, refused to attend the Peace Committee Meeting convened by the Executive Magistrate (Tahsildar) some time prior to the date of occurrence; that on the very same date of occurrence, the houses of the accused persons were destroyed by arson and that the prosecution witnesses have admitted that from the date of occurrence, the accused persons did not come to the village and are residing in Kattumannarkoil. It is the further contention of the learned counsel for the appellants that there was a long- standing enmity between the two communities and it escalated into a widespread violence on the date of occurrence in which the houses of the accused persons were set on fire by the members of the Vanniya community and during such incident, P.W.6-Velmurugan could have sustained some injuries; that regarding the destroyal of the residential houses of the accused, a complaint was given to the police, based on which a case was admittedly registered in Cr.No.60/2000; that the injuries sustained in the occurrence is sought to be projected as the injuries sustained in a different occurrence so as to come from the criminal case registered against the prosecution witnesses. https://hcservices.ecourts.gov.in/hcservices/ 14. It is the contention of the learned counsel for the appellants that when such is the defence plea of the accused, namely the case registered on the complaint of the accused persons for the destroyal of their houses by setting them on fire and the present case registered for the injuries sustained by P.W.6 are case and counter case regarding one and the same occurrence, investigation in both the cases should have been conducted by one and the same Investigating officer; that though there is evidence to the effect that the very same Investigating officer conducted investigation in both the cases, the records in the counter case, namely Cr.No.60/2000 have been completely burked by not producing them in this ase and that the same alone will give rise to a reasonable suspicion that the prosecution has not come with the truth regarding the genesis of the occurrence. The learned counsel for the appellants also contended that the court below having disbelieved the prosecution case regarding the charge against other accused persons, namely A1, A4 and A5 should have also disbelieved the other part of the prosecution case, namely the case against the appellants and acquitted them by giving the benefit of doubt to them also. 15. Relying on all the above said grounds raised, the learned counsel for the appellants submitted that the conviction recorded and the sentence imposed on the appellants could not stand the scrutiny of this court and that viewed from any angle, the same should be set aside holding the appellants entitled to be acquitted of all the charges made against them. 16. This court also heard the submissions made by Mr.R.Muniappa Raj, learned Government Advocate (Crl.Side) as an answer to the contentions raised by the learned counsel for the appellants and paid its anxious considerations to the same. The entire records including the judgment of the court below, deposition of the witnesses and exhibits were also perused by this court. 17. Out of the five accused prosecuted before the trial court, 3 were acquitted and 2 were convicted. The two accused persons (A2 and A3), who were convicted by the court below for offences punishable under Sections 326 and 324 IPC and Sections 326 and 323 IPC respectively, have come forward with the present appeal challenging the conviction and sentence. Both the appellants, namely A2 and A3, stood charged for offences punishable under Sections 148, 341, 326, 324 and 307 IPC. However, they were found not guilty of offences punishable under Sections 148, 341 and 307 IPC. The first appellant (A2) was convicted for offences punishable under Sections 326 and 324 IPC, whereas the second appellant (A3) was convicted for offences punishable under Sections 326 and 323 IPC. The case of the Prosecution is that there was previous enmity between the accused persons and the injured P.W.6 pursuant to which occurrence P.W.6 was attacked by all the accused persons (5 in number) in the https://hcservices.ecourts.gov.in/hcservices/ alleged occurrence concerned in this case. All the accused were accused of forming themselves into an unlawful assembly and comitting rioting punishable under Sections 147 and 148 IPC. Accused Nos.1, 4 and 5 were prosecuted for the offence under Section 147 as they were not armed with deadly weapons at the time of occurrence, according to the prosecution version. The appellants herein (A2 and A3) were prosecuted for an offence punishable under Section 148 IPC, since according to the prosecution case, A2 (the first appellant) was armed with a knife and the second appellant (A3) was armed with the handle of a spade fitted with an iron ring. Though the case of unlawful assembly and rioting as projected by the prosecution was supported by the so-called eye witnesses, namely P.W.1, P.W.2 and P.W.6, the court below disbelieved their evidence regarding participation of accused persons 1, 4 and 5 in the alleged occurrence and hence acquitted them of all the charges framed against them. In view of the finding of the court below that participation of accused Nos.1, 4 and 5 in the alleged occurrence, the court below acquitted the appellants (A2 and A3) also of the charge for an offence punishable under Section 148 I.P.C. So, it is quite clear from the judgment of the court below that the prosecution case that there was an unlawful assembly and rioting had been disbelieved by the court below. The said part of the judgment acquitting the accused 1, 4 and 5 of all the charges framed against them and the appellants herein/A2 and A3 of the charges for offences under Sections 148, 341 and 307 IPC, has not been challenged either by the police or by the injured witness. When that is so, the contention of the learned counsel for the appellants that the case of the prosecution regarding the genesis of the occurrence also should be disbelieved, gains sufficient force. 18. It is the contention of the learned counsel for the appellants that the contradictions and improbabilities found in the evidence of the prosecution witnesses regarding the nature of injuries allegedly sustained by P.W.6 and the manner in which he sustained such injuries were not properly appreciated by the court below and that had it properly appreciated, it would have arrived at a conclusion that the case of the prosecution as against the appellants (A2 and A3) also regarding the alleged attack made by them on P.W.6, was not proved beyond reasonable doubt and acquitted the appellants also giving the benefit of doubt. The contradictions and improbabilities in this regard pointed out by the learned counsel for the appellants are taken up for discussion one by one. 19. P.W.1, on whose complaint the case was registered has given an improved version regarding the overt acts committed by the appellants herein. According to the complaint given by him marked as Ex.P1, the first appellant-Kanagasabai(A2) attacked P.W.6 on his head and body using a wooden handle of spade fitted with an iron ring and the second appellant-Selvanayagam (A3) https://hcservices.ecourts.gov.in/hcservices/ caused injury to P.W.6 by attacking him with a knife on the head and chin. Nowhere in the complaint it was stated that the second appellant (A3) was also armed with stick and attacked P.W.6 with stick also. A specific averment was made in the complaint that soon after the attack made by the appellants herein with the wooden handle of the spade and knife, the injured P.W.6 fell down and thereafter the other accused persons, namely (A1, A4 and A5) attacked him with stones and sticks. There seems to be an improvement made in the evidence of the prosecution witnesses over the particulars found in the complaint by adding an allegation that the third accused (second appellant herein), after initially attacking the injured P.W.6 with a knife, attacked him with a stick also. Thereby the prosecution witnesses made an attempt to account for the other injuries as if they were caused by the second appellant (A3). This material contradiction was not adverted to and was not appreciated in its proper perspective by the court below. This court finds substance in the above said contention of the learned counsel for the appellants. 20. There is also substance in the contention of the learned counsel for the appellants that the complaint marked as Ex.P1 and the FIR marked as Ex.P6 are to be viewed with suspicion regarding the manner in which and the time at which they were brought into existence. According to the prosecution case, the complaint was