Bail Slip The Appellant/Accused viz.Manga was directed to be released on bail as per the order of this Court dated 18.3.2010 in Crl.M.P.No.1/2010 in Crl.A.No.153/2010. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 16.09.2010 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE M.SATHYANARAYANAN C.A.NOS.153 AND 159 OF 2010 1.Dakshinamoorthy 2.Usha 3.Elango 4.Manga .. Appellants in CA.No.153 of 2010 1.Vadivelu 2.Adhimoolam .. Appellants in CA.No.159 of 2010 Vs. The State rep. by The Inspector of Police, Singarappettai Police Station, Singarappettai Krishnagiri District (Crime No.214 of 2004) .. Respondent in both the appeals. These criminal appeals are preferred under Section 374 (2) Cr.P.C against the judgment of the learned Principal District Sessions Judge, Krishnagiri, in S.C.No.16 of 2005, dated 02.02.2010. https://hcservices.ecourts.gov.in/hcservices/ For Appellants : Mr.V.Gopinath Senior Counsel for Mr.V.Rajamohan For Respondent : Mr.V.R.Balasubramanian, APP - - - - COMMON JUDGMENT (The judgment of the Court was made by M.CHOCKALINGAM, J.) The judgment shall govern these two appeals, namely C.A.Nos.153 and 159 of 2010. The first one is brought forth by Accused Nos.3 to 6 and the second one is brought forth by Accused Nos. 1 and 2. 2.The appellants, six in number, have challenged the judgment of the learned Principal District Sessions Judge, Krishnagiri, made in S.C.No.16 of 2005, dated 02.02.2010, whereby they stood charged as follows: Charges: I A-1 to A-6 - S.148 IPC II A-1 to A-6 - S.302 r/w. 34 IPC III A-2 - S.307 IPC (Two Counts) IV A-1, A-3 to A-6- S.307 r/w.149 IPC V A-2 to A-5 - S.307 r/w. 34 IPC VI A-1,A-3,A-4&A-6- S.307 r/w.149 IPC VII A-4 and A-6 - S.323 r/w. 34 IPC VIII A-1 to A-3&A-5 - S.323 r/w.149 IPC Conviction and sentence: A-1 to A-6 - S.148 IPC - 1 years R.I. and to pay a fine of Rs.1000/- each, in default 3 months R.I. A-1 to A-5 - S.302 - Life Imprisonment and to pay a r/w.34 IPC fine of Rs.2000/- each, in default 6 months R.I. A-2 - S.307 IPC - 7 years R.I. and to pay a (Two Counts)fine of Rs.2000/- each, in default 6 months R.I. A-2,A-4&A-6- S.323 - Six months R.I. and to pay r/w.34 IPC a fine of Rs.1000/- each, in default 1 month R.I. All the sentences were ordered to run consequently. https://hcservices.ecourts.gov.in/hcservices/ 3.The short facts necessary for the disposal of these appeals can be stated thus: (a)P.W.1 is the second wife of deceased Devan. Devan's father had two wives and through the first wife, he had five children, including first accused and P.W.4 and through the second wife, Devan was the only son. The father-in-law of P.W.1 owned 5 acres of land. He retained 1 acre 70 cents for himself. There was a Panchayat convened, but, the first accused, refused to hand over possession and he was retaining the entire possession of 5 acres of land. When he applied for electric service connection, the same was objected to by the deceased and therefore, there ensued a quarrel between them. (b) On the date of occurrence, viz., 27.05.2004, at about 9.00 a.m., when the first accused was carrying on the agricultural operation by ploughing his land, the deceased along with other witnesses went there and raised objection for ploughing the land and thereafter, at about 12.30 p.m., they again went there and raised objection and hence, there arose a quarrel and at that time, when the objection was raised by the deceased for ploughing the land, accused Nos. 4 and 6 dragged P.W.1 and pushed her down and fisted her. The first accused attacked the deceased with Koduval on his head; Second accused attacked the deceased with Koduval on his back; Third accused attacked the deceased with Koduval on his left leg; Accused Nos. 4 and 5 stabbed the deceased with a long needle on the back; Sixth accused attacked the deceased with an iron rod on the eye-brow, as a result of which, the deceased sustained bleeding injuries and he fell down and died on the spot. Accused Nos. 2 and 5 attacked P.W.3, Second accused attacked P.W.2; and Accused Nos. 4 and 6 attacked P.W.1. In the course of the said transaction, P.Ws 1 to 4 sustained injuries. Immediately, P.Ws 1 to 4 were taken to the Uthangarai Government Hospital. They were examined by P.W.10- Doctor. He noted the injuries found on them. and Accident Register copy for P.W.1 was marked as Ex.P.8; Accident Register Copy for P.W.2 was marked as Ex.P.6; Accident Register Copy for P.W.3 was marked as Ex.P.9; Accident Register Copy for P.W.4 was marked as Ex.P.7. From there, P.Ws 2 and 3 were taken to the Krishnagiri Government Hospital and they were given further treatment. (c) On receipt of the information, P.W.15-Sub-Inspector of Police of the respondent-police proceeded to the Uthangarai Government Hospital and recorded the statement of P.W.1, marked as Ex.P.1. On the strength of the same, a case came to be registered in Crime No.214 of 2004 for the offences under Sections 147, 148, 323, 324, 307 and 302 IPC. Ex.P.16, the Express first information report was despatched to the Court. At about 20.30 hours, on receipt of the complaint from third accused a case was registered in Cr.No. 215 of 2004 for the offences under Sections 323 and 324 IPC and First Information Report was despatched to the Court. https://hcservices.ecourts.gov.in/hcservices/ (d)P.W.16, the Sub-Inspector of Police, on receipt of the copy of the F.I.R., took up the the investigation, proceeded to the place of occurrence, made an inspection in the presence of the witnesses and prepared Ex.P.2, the observation mahazar and Ex.P.17, the rough sketch. He proceeded to the place of occurrence and conducted inquest on the dead body of the deceased in the presence of the witnesses and panchayatdars and prepared Ex.P.18, the inquest report. He also recovered material objects from the place of occurrence and from the dead body of the deceased. Following the same, the dead body of the deceased was sent for the purpose of autopsy along with a requisition. (e) P.W.11, the Doctor attached to the Uthangari Government Hospital has conducted autopsy on the dead body of the deceased and has issued Ex.P.11, the post-mortem certificate, wherein he has opined that the deceased would appear to have died of shock and haemorrhage due to the injuries sustained. (f)Pending investigation, on 28.05.2004, fifth accused was arrested in the presence of the witnesses. He volunteered to give a confessional statement, which was recorded in the presence of the witnesses. Pursuant to the confessional statement, he produced two koduval and one iron rod, which were recovered in the presence of witnesses under a cover of mahazar. Pending investigation, accused Nos. 2 and 3 were arrested and they were sent to the Court. All the material objects recovered from the place of occurrence, from the dead body of the deceased and the M.Os recovered from the accused were subjected to chemical analysis by the Forensic Science Department. Pursuant to which, Ex.P.14, the Biological report and Ex.P.15, the Serologist's report were received. The Investigator examined all the witnesses and recorded their statements. On completion of the investigation, he filed the final report in Cr.No. 214 of 2004 and he also filed "Referred Notice" in Cr.No.215/2004 closing the case as "Mistake of Fact", before the Judicial Magistrate Court. 4.The case was committed to the Court of Sessions and necessary charges were framed. In order to substantiate the charges, the prosecution has marched 16 witnesses as P.Ws 1 to 16 and also relied on 20 exhibits as Exs.P.1 to P.20 and relied on 13 material objects as M.Os.1 to 13. On completion of the evidence on the side of the prosecution, the accused 1 to 6 were questioned under Section 313 Cr.P.C procedurally as to the incriminating circumstances found in the evidence of prosecution witnesses, which they flatly denied as false. On the side of the defence, two witnesses were examined viz., D.W.1 and D.W.2, through whom four documents viz., Exs.D.1 to D.4 were marked. On completion of the evidence on both sides, the lower court heard the arguments advanced by both sides and also https://hcservices.ecourts.gov.in/hcservices/ scrutinised the materials available and took a view that the prosecution has proved the case beyond reasonable doubt and has found the accused 1 to 6/appellants guilty and has awarded punishment as referred to above. Hence, these appeals at the instance of the appellants. 5.Advancing his arguments on behalf of the appellants, the learned Senior Counsel Mr.V.Gopinath would submit that in the instant case, though, number of witnesses were marched as eye witnesses, out of whom, four witnesses, viz., P.Ws. 1 to 4 were shown as injured witnesses and the prosecution has miserably failed to prove the case but the trial Court has taken an erroneous view finding the appellants guilty. According to the learned Senior Counsel, admittedly, during the relevant time, first accused was in possession of the entire 5 acres of land and when he asked for electric service connection, it was objected to by the deceased Devan and therefore, it is quite clear that enmity had already ensued between them. On the date of occurrence viz., 27.05.2004, at about 9.00 a.m., when the first accused was ploughing the land, it is the deceased Devan, who along with the witnesses went to the field of the first accused and raised objection, which shows that he was an aggressor. Added further according to the learned Senior Counsel, following the first incident, on the same day at about 12.30 p.m., the second incident, viz., the occurrence has taken place. On the strength of the complaint given by third accused, a case came to be registered by the very same respondent-police in Cr.No. 215 of 2004 under Sections 323 and 324 IPC. The prosecution did not file the First Information Report, 161 Statement or the Medical Report, in respect of accused Nos. 1 and 3 before the trial Court. Learned Senior Counsel would further submit that D.W.1 and D.W.2 are the Doctors and they gave treatment to accused Nos. 1 and 3 and their Accident Register Copy were marked as Exs.D.2 and D.1 respectively and Case Diary were marked as Exs.D.3 and D.4, which would clinchingly show that third accused sustained grievous injuries and first accused, though, sustained simple injuries, the injuries were caused on the vital organ viz., head. Thus, when accused Nos. 1 and 3 also sustained injuries in the very same transaction, the prosecution had no explanation to offer how they sustained those injuries. The prosecution in its fairness should have filed all the documentary evidence in respect of Cr.No. 215 of 2004, but failed to do so. Thus, the prosecution did not enable the Court to understand the genesis of the entire transaction, to render justice. Added further according to the learned Senior Counsel, in the instant case, it is true that some of the persons, who were actually the witnesses sustained injuries and one person has died. It is pertinent to point out that there was actually a previous clash between two parties and the deceased along with the other witnesses invaded into the person and right of the immovable property of first accused and in such circumstances, the occurrence https://hcservices.ecourts.gov.in/hcservices/ has taken place. The prosecution miserably failed to bring home the genesis of the occurrence and the entire transaction and also the non-explanation of the grievous injuries sustained by accused 1 and 3 would go to show that the prosecution has miserably failed to prove its case. Under such circumstances, the appellants are entitled for acquittal in the hands of this Court, but, the learned trial Judge has taken an erroneous view and rendered the judgment of conviction and sentence, which has to be set aside. 6.Heard the learned Additional Public Prosecutor on the above contentions. This Court has paid its anxious consideration on the submissions made. 7. It is not in controversy that the deceased Devan, who was the husband of P.W.1. died in the occurrence that had taken place on 27.05.2004 at about 12.30 p.m. Following the same, inquest on the dead body of the deceased was made by the Investigating Officer- P.W.16. The dead body of the deceased was subjected to post-mortem by P.W.11-Doctor. As a witness, he has also deposed before the Court that the deceased died out of shock and haemorrhage due to injuries sustained by him. Apart from that, the prosecution also marked the post-mortem certificate-Ex.P.11 in that regard in order to prove the said fact. The fact that Devan had died out of homicidal violence was never disputed by the appellants before the trial court and hence, no impediment is felt by this Court in recording so. 8. In order to substantiate the charges levelled against the appellants, though the prosecution marched number of witnesses as eye witnesses and out of whom, P.Ws. 1 to 4 were shown as injured witnesses, it is needless to say that in a case like this, where the prosecution comes forward with the evidence of an eyewitness, who is also an injured witness, unless and until strong circumstance or reason is brought forth, the Court should not discard the said evidence. In the instant case, the Court is afraid, whether it can agree with the judgment of conviction and sentence imposed on the appellants/accused Nos. 1 to 6 by the trial court for the following reason. 9. Admittedly, during the relevant time, first accused was in possession of the entire 5 acres of land and on the previous occasion, when first accused made an application for electric service connection, it was objected to by the deceased and therefore, there ensued an inimical term between them. On the date of occurrence viz., 27.05.2010, at about 9.00 a.m., when first accused was ploughing the lands, it was the deceased, who along with witnesses went over there and raised objection. Following the same, the second incident had taken place at about 12.30 p.m. P.Ws 1 to 4 claim that they were all injured in the occurrence. When the https://hcservices.ecourts.gov.in/hcservices/ deceased and witnesses were attacked by accused Nos.1 to 6, they were also attacked by the respective witnesses. 10. At this juncture, it is pertinent to point out that a case came to be registered in Cr.No.214/2004 on the complaint given by P.W.1, which is marked as Ex.P.1. It is also admitted by P.Ws. 15 and 16, that a case was registered in Cr.No. 215 of 2004 on the complaint given by third accused. It is pertinent to note that in Cr.No. 214 of 2004 and Cr.No. 215 of 2004, the place and time of transaction are same. If that be so, in its fairness, the prosecution should have placed all the materials and also records pertaining to Cr.No. 215 of 2004 before the trial Court. It is a matter of surprise to note that while it is an admitted position that both the transactions covered under Cr.Nos. 214 and 215 of 2004 are one and the same, the Investigator has closed the investigation of Cr.No. 215 of 2004 on the very day. It would be clearly indicative of the fact that there was no investigation done by the Investigator. Insofar as Cr.No. 215 of 2004 is concerned, not even the First Information Report, 161 Statement or the Medical Report were actually filed before the trial court. From the evidence of D.Ws. 1 and 2-Doctors and also on a perusal of Exs.D.1 and D.2- Accident Register Copy and Exs.D.3 and D.4-Case Diary issued to Accused Nos.1 and 3, it is quite evident that in the same transaction, first accused sustained injuries on the head and third accused sustained grievous injuries and he was hospitalised for a period of one month and they were given treatment in the Krishnagiri Government Hospital. 11. In the above circumstances, a duty is cast upon the prosecution to explain how accused Nos. 1 and 3 sustained injuries during the same transaction. No one of the witnesses examined by the prosecution has whispered anything about the same and therefore, there is a non-explanation of the injuries sustained by accused Nos. 1 and 3. In such a situation, the Supreme Court had an occasion to consider the case reported in AIR 1976 SUPREME COURT 2263, Lakshmi Singh vs. State of Bihar, wherein in Paragraph 11 of the said judgment, it has been held as under:- "11. PW 8 Dr. S.P. Jaiswal who had examined Brahmdeo deceased and had conducted the post-mortem of the deceased had also examined the accused Dasrath Singh, whom he identified in the court, on April 22, 1966 and found the following injuries on his person: “1.Bruise 3" x ½ " on the dorsal part of the right forearm about in the middle and there was compound fracture of the fibula bone about in the middle. 2.Incised wound 1" x 2 mm x skin subcutaneous deep on https://hcservices.ecourts.gov.in/hcservices/ the lateral part of the left upper arm, near the shoulder joint. 3.Punctured wound 1/2" x 2 mm x 4 mm on the lateral side of the left thigh about 5 inches below the hip joint. According to the doctor Injury 1 was grievous in nature as it resulted in compound fracture of the fibula bone. The other two injuries were also serious injuries which had been inflicted by a sharp-cutting weapon. Having regard to the circumstances of the case there can be no doubt that Dasrath Singh must have received these injuries in the course of the assault, because it has not been suggested or contended that the injuries could be self-inflicted nor is it believable. In these circumstances, therefore, it was the bounden duty of the prosecution to give a reasonable explanation for the injuries sustained by the accused Dasrath Singh in the course of the occurrence. Not only the prosecution has given no explanation, but some of the witnesses have made a clear statement that they did not see any injuries on the person of the accused. Indeed if the eyewitnesses could have given such graphic details regarding the assault on the two deceased and Dasain Singh and yet they deliberately suppressed the injuries on the person of the accused, this is a most important circumstance to discredit the entire prosecution case. It is well settled that fouler the crime, higher the proof, and hence in a murder case where one of the accused is proved to have sustained injuries in the course of the same occurrence, the non-explanation of such injuries by the prosecution is a manifest defect in the prosecution case and shows that the origin and genesis of the occurrence had been deliberately suppressed which leads to the irresistible conclusion that the prosecution has not come out with a true version of the occurrence. This matter was argued before the High Court and we are constrained to observe that the learned Judges without appreciating the ratio of this Court in Mohar Rai v. State of Bihar, (1968) 3 SCR 525 = (AIR 1968 SC 1281) tried to brush it aside on most untenable grounds. The question whether the Investigating Officer was informed about the injuries is wholly irrelevant to the issue, particularly when the very doctor who examined one of the deceased and the prosecution witnesses is the person who examined the appellant Dasrath Singh also. In the case referred to above, this Court clearly observed as follows: “The trial court as well as the High Court wholly ignored the significance of the injuries found on the appellants. Mohar Rai had sustained as many as 13 injuries and Bharath Rai 14. We get it from the evidence of PW 15 that he noticed injuries on the person of Mohar Rai when he was produced before him immediately after the https://hcservices.ecourts.gov.in/hcservices/ occurrence. Therefore the version of the appellants that they sustained injuries at the time of the occurrence is highly probabilised. Under these circumstances the prosecution had a duty to explain those injuries ... In our judgment the failure of the prosecution to offer any explanation in that regard shows that evidence of the prosecution witnesses relating to the the incident is not true or at any rate not wholly true. Further those injuries probabilise the plea taken by the appellants.” This Court clearly pointed out that where the prosecution fails to explain the injuries on the accused, two results follow: (1) that the evidence of the prosecution witnesses is untrue; and (2) that the injuries probabilise the plea taken by the appellants. The High Court in the present case has not correctly applied the principles laid down by this Court in the decision referred to above. In some of the recent cases, the same principle was laid down. In Puran Singh v. State of Punjab, Criminal Appeal No. 266 of 1971 decided on April 25, 1975 = (reported in AIR 1975 SC 1674) which was also a murder case, this Court, while following an earlier case, observed as follows: “In State of Gujarat v. Bai Fatima (Criminal Appeal No. 67 of 1971 decided on March 19, 1975) = (reported in AIR 1975 SC 1478) one of us (Untwalia, J.) speaking for the Court, observed as follows: "In a situation like this when the prosecution fails to explain the injuries on the person of an accused, depending on the facts of each case, any of the three results may follow: (1) That the accused had inflicted the injuries on the members of the prosecution party in exercise of the right of self-defence. (2) It makes the prosecution version of the occurrence doubtful and the charge against the accused cannot be held to have been proved beyond reasonable doubt. (3) It does not affect the prosecution case at all. The facts of the present case clearly fall within the four-corners of either of the first two principles laid down by this judgment. In the instant case, either the accused were fully justified in causing the death of the deceased and were protected by the right of private defence or that if the prosecution does not explain the injuries on the person of the deceased the entire https://hcservices.ecourts.gov.in/hcservices/ prosecution case is doubtful and the genesis of the occurrence is shrouded in deep mystery, which is sufficient to demolish the entire prosecution case.” It seems to us 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 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. 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. In the instant case, when it is held, as it must be, that the appellant Dasrath Singh received serious injuries which have not been explained by the prosecution, then it will be difficult for the court to rely on the evidence of PWs 1 to 4 and 6, more particularly, when some of these witnesses have lied by stating that they did not see any injuries on the person of the accused. Thus neither the Sessions Judge nor the High Court appears to have given due consideration to this important lacuna or infirmity appearing in the prosecution case. We must hasten to add that as held by this Court in State of Gujarat v. Bai Fatima, Criminal Appeal