B A I L S L I P The Appellants/Petitioners A1 to A5 were directed to be released on bail in and by the order of this Court dated 20.2.2003 in Crl.MP.No.230/03. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 26.11.2009 CORAM: THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN Crl.A.No.56/2003 1.Tamilarasan 2.Chelladurai 3.Karuthan @ Subramaniyan 4.Subramani 5.Keliyan Appellants/A3 to A5 Vs The State by Inspector of Police Pennadam Police Station Pennadam, Cuddalore District Respondent/Complainant Prayer:- This Criminal Appeal is filed against the judgement dated 10.12.2002 passed in SC.No.86/2001 by the learned Additional District and Sessions Judge (FTC-III) Virudhachalam, convicting and sentencing the appellants 1 to 4/A1 to A4 for the offence under Sections 324 of IPC (4 counts) and 148 read with Section 149 of IPC to undergo 2 years Rigorous Imprisonment and to pay a fine of Rs.500/- for each offence and convicting the 5th Appellant/A5 under Sections 148, 324 of IPC read with Section 149 of IPC to undergo 6 months Rigorous Imprisonment and to pay a fine of Rs.500/- for each Offence. For Appellant : Mr.T.Sivagnanasambandan For Respondent : Mr.Hasan Mohammed Jinnah, APP ORDER This Criminal Appeal is filed against the judgement dated 10 .12.2002 passed in SC.No.86/2001 by the learned Additional District and Sessions Judge (FTC-III) Virudhachalam, convicting and sentencing the appellants 1 to 4/A1 to A4 for the offence under Sections 324 of IPC (4 counts) and 148 read with Section 149 of IPC to undergo 2 years Rigorous Imprisonment and to pay a fine of Rs.500/- for each offence and convicting the 5th Appellant/A5 under Section 148, 324 of IPC read with Sections 149 of IPC to https://hcservices.ecourts.gov.in/hcservices/ undergo 6 months Rigorous Imprisonment and to pay a fine of Rs.500/- for each Offence. 2. The case of the Prosecution is as follows:- a. PW.1 Amudha along with her husband is residing at T.Agaram and her native is Narasingamangalam and presently PW.1 is residing at her parents house at Narasingamangalam. PW.1 came to know that on 19.10.1998, there was a wordy quarrel and dispute between one Indiragandhi, the daughter of the 5th Appellant/A5 Kaliyan and one Kadirvel. Due to the said wordy quarrel, on 20.10.1998 and 21.10.1998, the 1st Appellant, son of Ramasamy and the 2nd Appellant, son of 5th Appellant Kaliyan, the 4th Appellant and the 5th Appellant and the 3rd appellant with deadly weapons like sickles, arruval and iron rods had threatened to murder them in the presence of the Villagers. On 22.10.1998, at 10.00 a.m., A1 and A2 with Veecharuval, A3 with Aruval, A4 with Veecharuval and A5 with an iron rod assembled in an unlawful manner and chased PW.2 Subramanian and cut PW.2 at his stomach in front of the house of PW.1 and A2 cut on his hand and A5 attacked with the iron rod on his left forearm. When A3 attempted to attack PW.3 Sakthivel, PW.3 ran away from the place of occurrence. The injured persons went to the Thittakudi Government Hospital and from there, they were sent to Cuddalore Government Hospital for further treatment. PW.6 and PW.7 are the Doctors, who gave treatment to the injured at the said Hospitals. Ex.P8 is the wound certificate in respect of PW.1 and Ex.P9 is the wound certificate in respect of Sakthivel PW.3. Ex.P10 is the copy of the accident register. PW.1 by walk came to the Police Station and gave the complaint to the Pennadam Police Station under Ex.P1 at 12.00 hours on the same day. b. On receipt of the said complaint, on 22.10.1998 one Shanmugasundaram, the Inspector of Police, registered a case in Cr.No.321/1998 for the offences under Sections 147, 148, 341, 324 and 307 of IPC against the accused and prepared FIR Ex.P11 and went to the place of occurrence and examined the witnesses and recorded their statements and prepared observation mahazar Ex.P2 and a rough sketch Ex.P12 and seized blood stained sand in the presence of the witnesses and arrested the accused at 9.00 p.m. on the same day at Erappavur Bus Stand and on their confession, seized material objects MO.1 to Mo.5, viz. Aruval, iron rod, and blood stained sand under a mahazar and also examined the Doctors PW.6 and Pw.7 and recorded their statements. After completing investigation, since the said Shanmugasundaram died subsequently, PW.8 Inspector of Police attached to the Pennadam Police Station filed a final report on 20.2.2000 to the concerned court for the offences under Sections 307, 149, 324 and 148 of IPC against the appellants. 3. The case was taken on file in SC.No.86/2001 on the file of the learned Additional District and Sessions Judge, (FTC- III) Virudhachalam and necessary charges were framed. In order to substantiate the charges levelled against the accused, the prosecution examined as many as 8 witnesses (PW.1 to PW.8}and https://hcservices.ecourts.gov.in/hcservices/ also relied on Exs.P1 to P12 and 5 Material Objects. On the side of the defence, A1 had examined himself as Dw.1 and marked Exs.D1 to D4. Ex.D1 is the counter complaint given by the 1st Appellant/A2. 4. On completion of the evidence on the side of the prosecution, the accused were questioned under Section 313 Cr.PC as to the incriminating circumstances found in the evidence of prosecution witnesses and the accused denied the same as totally false. 5. The court below, after hearing the arguments advanced on either side and looking into the materials available, found the accused/appellants guilty and awarded punishments as referred to above, which is challenged in this Criminal Appeal. 6. This court heard the submissions of the learned counsel on either side and also perused the material records placed. 7. The main contention of the learned counsel for the Appellants is that the very investigation is improper and partisan in nature and failed to investigate the counter case filed by the Appellants arising out of the same incident, wherein the Appellants had sustained serious head injuries. 8. The appellants and the Prosecution witnesses PW.1 to 3 and PW.5 belong to the same village namely Narasingamangalam. There was previous enmity between them in regard to wordy quarrel that ensured between one Kadirvelu, brother of PW.1 and one Indiragandhi, sister of A1, two or three days prior to the occurrence. According to the case of the Prosecution, in view of the said previous enmity, thinking that PW.2 to PW.5 are supporting Kadirvelu, the Appellants attacked the said witnesses with sickles and iron rods causing injuries on the said witnesses. PW.1 to PW.5 have deposed to the effect that the 1st Appellant attacked PW.2 with a sickle on his left rib, A2 attacked him with a sickle on his left and right hand, A1 again cut PW.2 on his head and A4 attacked PW.3 with a sickle which fell on his right hand and severed his right thumb. A5 cut on the forearm of PW.1, when she intervened to prevent the attack and A1 cut PW.3 on his right hand and all the injured witnesses went to Thittakudi Government Hospital and from there, they went to Cuddalore Hospital. 9. Though there are minor contradictions with regard to the attribution of overtact to each of the accused, but their evidence is consistent in the version regarding the attack made by the Appellants on the witnesses Pws.1 to 5. But, none of those witnesses have stated any thing about the injuries sustained by the Appellants. 10. The said occurrence is said to have occurred on 22.10.1998 at 11.00 a.m. The testimony of PW.1 to PW.3 and PW.5 disclosed as though the Appellants came to their place and https://hcservices.ecourts.gov.in/hcservices/ attacked them after chasing them. Though the occurrence was said to have been witnessed by the public, but no independent witness had been examined. It is true that PW.1 to PW.3 and PW.5 spoke about the incident. But, how far their evidence can be believed by the court is a question under consideration. PW.1 who lodged the complaint Ex.P1 has stated that the other injured witnesses went to the hospital and she went straight away to the Pennadam Police Station and gave the complaint and only thereafter she went to the Hospital. She has further stated that when she was proceeding by walk to the Police Station, the Inspector of Police came in a Jeep and gave a lift to her. Before that, he seized the weapons from the place of occurrence. The complaint was given at 12.00 hours on 22.10.1998. Though it transpires from her testimony before the court and Ex.P1 complaint that she had witnessed the whole incident, but PW.2 and 3 had stated that she came to the spot only after the attack made by the Appellants and when she intervened, she was assaulted by an iron rod by A5. Hence, the presence of PW.1 at the time when PW.2 and 3 were attacked is not corroborated by the evidence of PW.2 and PW.3 11. The version of PW.1 is to the effect that when she went to the Police Station, the Appellants were already there in the Police Station and they also gave a complaint to the police. According to the defence version, the entire occurrence took place not as projected by the Prosecution and only the Prosecution parties more particularly PW.2, PW.5 and one Rajangam, Kadirvel, Kandasamy, Periasamy, Kaliamurthy and Kannayiram with few other persons intercepted the Appellants who alighted from the bus and attacked the Appellants with knives and iron rods and in the course of the said attack, the 1st Appellant, 5th Appellant and others sustained serious injuries. 12. The 1st Appellant had examined himself as DW.1 and narrated the manner in which the incident had taken place. He has stated that PW.1 and few others came to the Police Station only at 4.00 p.m. whereas the Appellants lodged the complaint even before Ex.P1 was lodged by PW.1. But, according to DW.1, the Inspector of Police registered the case as though it was lodged at 22.00 hours on 22.10.1998. 13. PW.1's evidence that she saw the Appellant when she went to the Police Station probabilises the case of the Appellants that they had given the complaint at the earliest point of time, but for obvious reasons, the case had been registered as though it was given at the later point of time. PW.6, Dr.Pachiappan's evidence significantly discloses that the 5th Appellant Kaliyan had sustained grievous injuries on his head as extracted below:- "1. A cut injury at left parietal region of size 7 cm. 2. Three linear incised wounds of size 3 cm; 7 cm; 2 cm; 2 cm over the right parietal region. https://hcservices.ecourts.gov.in/hcservices/ 3. A contusion over the right forearm (n.c) 4. A contusion over the left arm." To the Doctor PW.6, it has been averred that A5 sustained the above said injuries at 11.00 a.m. on 22.10.1998 at Narasingamangalam Bus Stand, when he was mishandled by two known persons with koduval. 14. The defence version is that the entire occurrence took place when the Appellants alighted from the bus in the Village and were attacked by the Prosecution party. Though there were injuries on A5, but the eye witnesses PW.1, PW.2, PW.3 and PW.5 have not explained as to how those injuries were caused on him. They have merely denied knowledge as to whether the Appellants sustained injuries. The doctor's evidence discloses that during the very same incident, A5 Kaliyan had received those grievous injuries. According to the eye witnesses, they had carried no weapons in their hands. If that be so, how A5 had sustained cut and incised injuries on his head and contusion over other parts of the body is not explained. 15. The investigating officer is unable to explain as to how the 5th Appellant sustained those injuries. He having found at least one of the accused having sustained injuries in the course of the same incident in which the Prosecution witnesses PW.2 and 3 sustained injuries, the Inspector of Police should have at least made an effort at investigating the cause and the circumstances resulting in injuries on the person of the accused Kaliyan. Not only the investigating officer did not do so, but also he did not even make an attempt to record the statement of A5 Kaliyan. If only this would have been done, the defence version of the incident would have been before the investigating officer and the investigation would not have been one sided. That too, in spite of the complaint lodged by the 1st Appellant, no attempt had been made by the investigating officer at least to verify by conducting investigation as to whether the version made by the Appellants was true. 16. In the case of Dev Raj Vs. State of HP [AIR-1994-SC- 523], the Honourable Supreme Court has held that where the accused received injuries during the same occurrence in which the Prosecution party were injured and when the defence version was that they acted in self defence, that cannot be lightly ignored particularly in the absence of any explanation of their injuries by the Prosecution. 17. The Division Bench of this court in the case of Sundaram and 2 others Vs. State by Inspector of Police, Uthamapalayam [1998-2-LW-760], when the evidence disclosed that both sides not coming with true version and when there was failure of Prosecution to explain the injuries sustained by the accused persons, it was difficult to separate the truth from falsehood, https://hcservices.ecourts.gov.in/hcservices/ since the truth and falsehood are so inextricably mixed up, then the accused are entitled for the benefit of doubt. 18. In the present case, a serious lacuna which could be noticed is that the investigating officer did not state about the counter complaint Ex.D2 given by the 1st Appellant on the same day i.e. 22.10.1998. A perusal of Ex.D2 would show that the counter complaint had been received from A1 against the Prosecution party and the said complaint had been registered under Sections 147, 148 and 323 of IPC, but no further investigation is made on the said complaint. 19. It is settled law that when there is a counter complaint given by the accused for the injuries sustained by them in the course of same transaction at the hands of the Prosecution party, the investigating officer has to investigate both the complaints and then only file a final report only after completion of investigation in both the cases. But, this has not been done in this case. No reasons had been given. Therefore, it is clear from this that the investigating officer has not only failed to conduct the investigation in the counter complaint, but also suppressed the fact that he received the counter complaint from A1. These things would make it clear that the Prosecution party including the investigating officer have not come to the court with clean hands and have failed to place all the materials collected by the investigating agency. 20. In those circumstances, I am of the considered view that the Appellants are entitled to be given the benefit of doubt and hence, the conviction and sentence imposed on them are liable to be set aside. 21. In the result, this Criminal Appeal is allowed. The conviction and sentence imposed on the appellants by the court below in SC.No.86/2001 are set aside and the Appellants are acquitted of the charges levelled against them. It is seen from the records that the Appellants had been enlarged on bail by this court. The bail bond if any executed by the appellants shall stand terminated and the fine amount if any paid is ordered to be refunded to them. Srcm Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar https://hcservices.ecourts.gov.in/hcservices/ To: 1.The Additional District and Sessions Judge (FTC-III) Virudhachalam 2.Do Through the Principal Sessions Judge, Cuddalore. 3.The Judicial Magistrate, Virudhachalam. 4.Do Through the Chief Judicial Magistrate, Cuddalore. 5.The Superintendent, Central Prison, Cuddalore. 6.The Inspector of Police Pennadam Police Station Pennadam, Cuddalore. 7.The Public Prosecutor, High Court, Madras Order in Crl.A.No.56/2003 BV(CO) SR/4.12.2009 https://hcservices.ecourts.gov.in/hcservices/