IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 16.10.2008 CORAM: THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE M.VENUGOPAL CRIMINAL APPEAL NO.285 of 2006 State: Rep. by The Inspector of Police Mailam Police Station Villupuram District. ..Appellant/Complainant (Crime No.464/2002) -vs- Sakkaravarthy ..Respondent/Accused CRIMINAL APPEAL filed under Sec.374 Cr.PC. against the Judgment dated 8.7.2004 in S.C.No.197 of 2003 on the file of the learned Additional District and sessions Judge, Fast Track Court No.II, Tindivanam, Villupuram District. For Appellant : Mr.P.Kumaresan, APP For Respondent : Mr.P.Sanjai Gandhi J U D G M E N T (Judgment of the Court was delivered by M.VENUGOPAL,J) Appellant/complainant challenges the Judgment of the Additional District and Sessions Judge, Fast Track Court No.II, Tindivanam, Villupuram District made in S.C.No.197/2003 dated 8.7.2004, whereby the respondent/accused stood charged for the offences punishable under section 323 IPC for voluntarily causing hurt, under section 324 IPC for voluntarily causing hurt by dangerous weapons or means and under section 302 IPC for having committed murder. 2.On trial, the respondent/accused was found not guilty of the charges under section 323, 324 and 302 of IPC and resultantly, he was acquitted for the charges levelled against him. 3.The short factual matrix of the prosecution are as under: (a)P.W.1- Kasthuri/wife of the deceased in this case is the complainant. She has been assaulted with an iron pipe, for which she has received treatment from P.W.6-Doctor. P.W.7 has brought P.W.1 to the Government Hospital, Tindivanam for treatment and has also brought the dead body of Selvaraj to the Hospital for conducting Post-mortem. P.W.8 is the Maghazar Witness, who has been present at the time of https://hcservices.ecourts.gov.in/hcservices/ preparation of observation and seizure mahazar of M.O.1-Iron Pipe and also Ex.P4-admissible portion of the confession statement of the respondent/accused. P.W.9-Doctor has conducted the Post Mortem on the dead body of Selvaraj. (b)According to P.W.2-Kalvarayan, the respondent/accused has indulged in violence for the demand of money and that two years ago at about 6.15 p.m. his brother along with his wife/P.W.1, has gone to the residence of respondent/accused and demanded repayment of loan amount, for which the respondent/accused has beat his brother on his head and right side of his face. At about 8.30 p.m. when his brother’s wife defended, the respondent/accused attacked her on her head, hand and leg with iron pipe. (c)P.W.3-Malliga has deposed to the effect that one and a half years before, near the house of one Kuppan, at about 6.00 p.m., there was a quarrel between Selvaraj and the respondent/accused in regard to the money transaction and when the Selvaraj asked the respondent/accused about the amount, the respondent/accused informed Selvaraj that no money was given to him and the respondent/accused has beat Selvaraj with Stick on the head, right leg, etc. and when the wife of Selvaraj intervened, the respondent/accused also beat her on her leg and she fell down and that he took Kasthuri in an Auto to the hospital and that Selvaraj died on the spot. (d)P.W.4-Ramalingam has deposed that two years before in regard to the money transaction, at about 7.30 p.m., an oral quarrel has ensued between the respondent/accused and Selvaraj and that the respondent / accused has beat the Selvaraj with iron pipe on the head and the leg and the said Selvaraj after sustaining injury, fell down and when they took him to the hospital, on the way near Bazzar Joint Road, he died. (e)P.W.5-Krishnamurthy has deposed that an oral quarrel between Selvaraj and the respondent/accused in regard to the money transaction which took place near the house of Kuppan 1 1/2 years before at about 7.30 p.m. and that the respondent/accused beat Selvaraj with iron pipe on the head, right side of temporal region and after sustaining injury, Selvaraj died on the spot. (f)P.W.6-Doctor has issued Accident Register-Ex.P2 to the injured Kasthuri-P.W.1 who has come to the Hospital on 7.9.2002 at about 2.00 a.m. in the early morning and that she informed that on 6.9.2002 at about 7.30 p.m., she was attacked with iron rod at Thenkalavai Quarters and that she has sustained two simple injuries as detailed below: “1.Lacerated wound in the right side head on partial regional 5x1x1/2 cms. 2.Abrasion right side face 2 x 1 cm.” (g)P.W.7-Mahadevan has stated that he heard that respondent/accused has beat Selvaraj, as a result of which the said Selvaraj died and that P.W.1 has lodged a complaint in the Police Station, etc. (h)P.W.9 - Ramamurthy, Head Constable of Brammadesam Police station has stated that he handed over the letter and the dead body of Selvaraj https://hcservices.ecourts.gov.in/hcservices/ to conduct of Post Mortem to the Tindivanam Government Hospital and on completion of the Post Mortem, he handed over the dead body of Selvaraj to the concerned persons and that he was examined on 18.11.2002 by the Inspector of Police. (i)P.W.10-Head Constable of Mylam Police Station has deposed that as per the requisition letter of the learned Judicial Magistrate, he handed over the parts of the deceased body to the Chemical Analysts for the purpose of chemical examination and he handed over the lungs of the deceased on 13.9.2002 at Chengalpet Government Medical College and submitted his report before the learned Judicial Magistrate and that he has been examined by the Inspector of Police on 18.12.2002. (j)P.W.-11-Seenuvasan, Sub-Inspector of Police has deposed that on 7.9.2002 at about 2.30 a.m. early morning, when he was in charge of the Mylam Police Station, he received a complaint from P.W.1-Kasthuri, wife of the deceased Selvaraj, Thenkalavai and registered a case in Crime No.464 of 2002 for the offences punishable under section 324, 323 and 302 IPC and the printed F.I.R. is Ex.P10. He sent the complaint and the original F.I.R. to the learned Judicial Magistrate No.II and submitted the F.I.R. with a copy marked to the Sub-Inspector of Police Vikkarandi Police station for his perusal. (k)P.W.12-Dr.Manivannan has examined the dead body of Selvaraj on 7.9.2002 on the basis of the request made by the Mylam Inspector of Police. The Post Mortem Certificate is Ex.P12, the Viscera Report is Ex.P13, Hyoid Bone Report is Ex.P14 and the final opinion is Ex.P15. (l)P.W.13-Balasubmramaniam, Inspector of Police who has received the recorded F.I.R. at about 3.00 p.m. on 7.9.2002 on the basis of the complaint in Mylam Police Station Crime No.464 of 2002 under sections 323, 324 and 302 of IPC, went to the scene of occurrence at about 3.15 p.m., seized the dead body of the deceased from the scene of occurrence and sent the same to the Mortuary of the Hospital, prepared Observation Mahazar in the presence of witnesses P.W.9-Village Administrative Officer and his Assistant-P.W.10, prepared rough sketch-Ex.P16, took blood stained earth and sample earth for the purpose of sending the same to chemical examination through the learned Judicial Magistrate No.2 Tindivanam, recorded the statements of witnesses and conducted an inquest over the dead body of the deceased. Later, he was transferred from that Police Station. (m)P.W.14-Kothandaraman, Inspector of Police has conducted further investigation in this case. After perusing the records and documents of the case, after recording the statement of Dr.Manivannan on 15.11.2002, after receipt of Post Mortem Certificate, Forensic Laboratory Report, after examining the Head Constables-P.Ws.9 and 10, recorded their statements, obtained the Wound Certificate on 19.11.2002 from P.W.6-Dr.Dayanithi, who gave treatment to P.W.1/wife of the deceased Selvaraj, recorded his statement and after obtaining the draft charge sheet from the learned Government Advocate, laid a charge sheet under Section 323, 324 and 302 IPC. https://hcservices.ecourts.gov.in/hcservices/ 4. The case was committed to the Court of Sessions and necessary charges were framed to prove the charges. On the side of prosecution, witnesses P.Ws 1 to 14 were examined, Exs.P1 to P7 were marked and M.O. 1-Iron Rod was produced. No defence witness was examined. 5. On completion of the evidence on the side of the prosecution, the respondent/accused was questioned under section 313 of Cr.P.C. in regard to the incriminating circumstances found in the evidence of prosecution witnesses, which he denied them as false. 6. The trial Court on the basis of arguments advanced by the respective parties and on consideration of oral and documentary evidence, has come to the conclusion that the charges against the respondent/accused under sections 323, 324 and 302 IPC have not been proved beyond reasonable doubt by the prosecution and resultantly acquitted the respondent/accused. Being aggrieved against the said acquittal, the present Appeal has been preferred at the instance of the appellant/complainant. 7. According to the learned counsel for the appellant/complainant, the trial Court has erred in rejecting the evidence of P.W.2 Doctor who conducted autopsy over the body of Selvaraj and issued Post Mortem Certificate and the final opinion and that the trial Court has committed an error in acquitting the respondent/accused on the basis that the evidence of P.W.1 has not been supported by medical evidence. The learned counsel further doubted the weapon which has been used in the commission of the offences and further submitted that the trial Court has failed to consider the evidence of P.W.1 which has been supported by the evidence of P.W.12-Doctor who conducted Post Mortem over the dead body of the deceased Selvaraj and in any event, prays for allowing the appeal in the interest of justice. 8.It is the case of the prosecution/appellant/complainant that on 6.9.2002, there was a quarrel between the deceased Selvaraj and the respondent/accused in regard to the money transaction. On the same day at about 7.30 p.m., the deceased Selvaraj and his wife P.W.1-Kasthuri asked the respondent/accused the loan amount near the residence of one Kuppan and the respondent/accused has assaulted the deceased Selvaraj with iron pipe on his head stating that 'if he is alive, he will not allow him to live peacefully’. The said Selvaraj has died at about 8.00 p.m. on the same day. 9. In the instant case, notwithstanding the fact that Ex.P1- complaint has been given by P.W.1-Kasthuri, wife of the deceased Selvaraj, she has deposed in her evidence that the complaint has been written by an unknown person of her village; that she has not written Ex.P1 complaint; that she does not know to read and write. Further it is the evidence of P.W.1 that the respondent/accused has broken the head of her husband, but no blood came out and that the respondent/accused ran away with iron pipe with which he beat her husband. More over, the evidence of P.W.1 in her cross examination is to the effect that she lost her tooth at the place of scene of occurrence. https://hcservices.ecourts.gov.in/hcservices/ 10. The evidence of P.W.8 Village Administrative Officer is to the effect that he was informed by his Assistant Ekambaram during the 9th month of 2002 at about 9.00 p.m. in the night over the phone that one person died of assault and after hearing the same, he went to ThenKalavai Village and saw the deceased Selvaraj at the scene of occurrence and he asked the Village people to inform the matter to the Police Station and the Police came at about 11.30 p.m. and after visiting the place and conducting an enquiry on the dead body, they took away the dead body and on the next day at about 6.30 a.m. in the morning, the Police prepared the Plan in which he signed and the admissible portion of the confession given by the respondent/accused is Ex.P4, in and by which, the respondent/accused has stated that he has kept the iron rod pipe in his house and the mahazar for seizure of iron pipe is Ex.P5 in which he affixed his signature. 11.It is not out of place to make a mention that the evidence of P.W.6-Doctor is to the effect that the Police at the time of obtaining the Wound Certificate has shown the wooden log and iron pipe and that P.W.1 Kasthuri has not lost any tooth. In Ex.P2- copy of Accident Register in respect of P.W.1-Kasthuri, Dr.Dayanithi-P.W.6 has deposed that P.W.1 informed him that she alleged to have been assaulted by one known person with iron pipe on 7.30 p.m. on 6.9.2002 in Thenkalavai Quarters and the lacerated wound and abrasion injuries are simple in nature. 12.It is apt to point out that in respect of Ex.P10 Printed F.I.R., the complainant-P.W.1 Kasthuri has inter alia stated that her husband who was in fainted stage while being taken to Tindivanam Government Hospital, died on the way near South Bazar Road at about 8.00 p.m. and therefore they brought back the dead body of the deceased to their house. 13.P.W.3-Malliga in her cross examination has specifically stated that initially she saw the deceased Selvaraj in a fainted state and she came along with P.W.1-Kasthuri to Tindivanam Government Hospital, where the Doctor has enquired P.W.1-Kasthuri and at that time P.W.1-Kasthuri has informed the Doctor that she was assaulted with stick (thadi). Therefore, there is contradiction in regard to the weapon with which P.W.1-Kasthuri has been assaulted by the respondent/accused. 14.In the case on hand, the blood stained cloths of deceased Selvaraj have not been cited as material objects. The blood stained mud at the scene of occurrence though taken as sample for chemical analysis, as spoken by P.W.8 Village Administrative Officer, the same has not been cited as material object by the prosecution but not sent for chemical analysis through the concerned Court. 15.Indeed, though the appellant/complainant produced Ex.M.O.1 Iron Pipe alleged to have been used by respondent/accused at the time of occurrence, the same has not been identified by P.W.1-Kasthuri and there is also an element of doubt in regard to the nature of weapon used namely whether it is an iron pipe or stick (Thadi), since P.W.3 has categorically stated that P.W.1-Kasthuri has informed the Doctor-P.W.6 https://hcservices.ecourts.gov.in/hcservices/ that she has been assaulted with stick (thadi). Even the blood stained clothes of the deceased or P.W.1-Kasthuri have not been sent for chemical analysis by the appellant/complainant in the present case. Even one Dhanasekaran has not been examined by the prosecution before the trial Court who is said to have given money to the respondent/accused to be paid to the deceased and even one Thangaraj to whom the loan said to have been paid by the deceased has not been examined by the prosecution. 16.Suffice it to state that in view of the discrepancies/ contradictions in evidence among the witnesses in regard to the weapon used i.e. either stick or iron pipe on the deceased Selvaraj and since M.O.1 Iron pipe has not been pinpointed by P.W.1-Kasthuri in her evidence before the trial Court and over all assessment of facts and circumstances of the case, this Court comes to the inevitable conclusion that the appellant/prosecution has miserably failed to prove the charges against the respondent/accused under sections 323, 324 and 302 IPC and resultantly the respondent/accused is not found guilty of the charges mentioned supra. 17.For the reasons assigned in this Appeal, the Judgment of acquittal recorded by the Additional District and Sessions Judge, Fast Track Court No.II, Tindivanam, Villupuram District made in S.C.No.197/2003 dated 8.7.2004 is affirmed by this Court. Resultantly, the above Criminal Appeal fails and the same is dismissed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar rpa To 1. The Additional District and sessions Judge, Fast Track Court No.II, Tindivanam, Villupuram. 2. -do- thro' The Principal Sessions Judge, Villupuram. 3. The Judicial Magistrate No.II, Tindivanam. 4. -do- through The Chief Judicial Magistrate, Villupuram. 5. The Superintendent, Central Prison, Cuddalore. https://hcservices.ecourts.gov.in/hcservices/ 6. The Inspector of Police,Mailam Police Station Villupuram District. 7. The Public Prosecutor, Madras. 8. The Director General of Police, Chennai - 4. 9. The District Collector, Villupuram District. 1 cc To Mr.P.Sanjay Gandhi, Advocate, SR.57711. CRL.APPEAL No.285 OF 2006 VM(CO) RVL 24.10.2008 https://hcservices.ecourts.gov.in/hcservices/