Bail Slip The 2nd Appellant herein (viz) Rajendran, (Accused No.2) in SC.No.173/03 dated 16.12.2003 on the file of the Court of the Additional District & Sessions Judge (Fast Track Court No.II) Vridhachalam, was directed to be released on bail as per order of this Court dated 21.1.04 and made in Crl.MP.No.48/04 in CrlA.15/04 IN THE HIGH COURT OF JUDICATURE AT MADRAS Date : 4.9.2006 Coram THE HONOURABLE MR.JUSTICE R. BALASUBRAMANIAN AND THE HONOURABLE MR. JUSTICE V. DHANAPALAN CRIMINAL APPEAL No.15 OF 2004 1. Ravichandran 2. Rajendran 3. Sujatha 4. Gunasekaran 5. Senthil 6. Balamurugan ..Appellants/Accused 1 to 6 -Vs.- Inspector of Police Thittakudi Police Station ...Respondent/Complainant Appeal against the judgment dated 16.12.2003 made in S.C.No.173 of 2003 of on the file of Additional District & Sessions Judge (Fast Track Court No.III),Vridhachalam. For Appellants : Mr.A.Padmanabhan For Respondent : Mr. N.R.Elango, APP ------- https://hcservices.ecourts.gov.in/hcservices/ J U D G M E N T (Judgment of the Court was delivered by R. Balasubramanian, J) The appellants are the accused in S.C.No.173 of 2003 on the file of Additional Court of Sessions (Fast Track Court No.III), Vridhachalam. A.1 stands convicted under Section 302 I.P.C. for which he stands sentenced to undergo imprisonment for life together with a fine of Rs.3,000/- carrying a default sentence. A.2 stands convicted under Section 323 I.P.C. for causing simple injury on P.W.2, for which he stands sentenced to pay a fine of Rs.500/-. A.2 also stands convicted for the offence under Section 326 I.P.C. for causing grievous injury to P.W.2 for which he stands sentenced to undergo three years rigorous imprisonment together with a fine of Rs.1,000/- carrying a default sentence. A.3 stands convicted under Section 323 I.P.C. for causing a simple injury to P.W.3 for which he stands sentenced to pay a fine of Rs.300/-. A.4 stands convicted under Section 324 I.P.C., for which he stands sentenced to pay a fine of Rs.3,000/-. A.5 and A.6 also stand convicted under Section 324 I.P.C. for which each one of them stands sentenced to pay a fine of Rs.3,000/- each. Hence they are before this Court in this appeal. Heard Mr.A.Padmanabhan, learned counsel appearing for the appellants and Mr.N.R.Elango, learned Additional Public Prosecutor for the State. 2. The charges against the accused are under Section 148 I.P.C. (A.1,2,4 to 6); 147 I.P.C. (A.3); 302 I.P.C. (A.1); 302 read with 149 I.P.C. (A.2 to A.6); 323 I.P.C.(A.2); 307 I.P.C. (A.1); 323 I.P.C.(A.3) and 307 I.P.C.(A.4). The accused are acquitted of offences under sections 148, 147, 302 read with 149 and 307 I.P.C. but instead as already noted, the conviction is for the offences indicated earlier. The occurrence, according to the prosecution took place at 8.30 p.m. on 23.11.2002 by the accused forming themselves into members of an unlawful assembly attacked Vijayakumar fatally and the witnesses. To support their case, the prosecution examined P.Ws.1 to 12 besides marking Exs.P.1 to P.18 and M.Os.1 to 9. The defence did not let in either oral or documentary evidence. 3. P.W.1 is the elder brother of the deceased and he knows the accused. The prosecution party and the accused are residing in the same Village namely, Kizhseruvai. In the year 1991, rain water from the house of A.1 and one Madhavan were allowed to fall on the house of the prosecution party, resulting in a dispute. On that cause of action, a case is pending before the Assistant Sessions Court, Chidambaram. A.1, A.2 and the deceased had gone abroad. As a result of which, the sessions case could not proceed further. The deceased https://hcservices.ecourts.gov.in/hcservices/ after returning to India got the non-bailable warrant issued against him by the Court of Sessions,Chidambaram recalled. A.1 – who is the brother of A.2 returned to India from Singapore. There was a non- bailable warrant pending execution against A.1 and accordingly he was arrested and taken to Court. The deceased during the relevant time was affiliated to a leading political party and he was a panchayat union councillor . Sujatha, wife of A.2 was sarcastically commenting that the arrest of A.1 is only at the instance of the deceased. This was about 8.30 p.m. on 23.11.2002. The deceased's house is just opposite to A.2's house. P.W.1 was sitting outside the house. P.W.2 is P.W.1's mother. As P.W.1's younger brother by name Kalivanan had gone abroad, P.W.2 was staying in his house. She was also sitting outside. P.W.3 is the second wife of the deceased. She was also sitting outside her house. At that time Vijayakumar, since deceased came from Tittagudi in a Hero Honda motor cycle. On seeing him, A.3 commented that "as a member of the ruling party he is showing his arrogance and coming ". P.W.1 heard this. The deceased asked A.3 as to why she is saying like that. At that time, A.1 took an iron rod from A.3's house and came out. A.1 questioned the deceased as to why he is talking with A.3 and saying that with that he must be finished, attacked the deceased on his head. A.2 with a piece of wood measuring 3 feet in length attacked on the right hand of the deceased. The deceased could not lift his right hand. P.W.1, P.W.4 and P.W.2 ran towards the scene. A.2 fisted P.W.1 on his neck and P.W.1 fell down. P.W.2 was attacked by A.1 with the iron rod on her left hand. A.3 holding P.W.3 by her tuft assaulted her. P.W.3 fell down. A.4 beat P.W.4 on his head. A.5 stabbed on the thigh of the deceased with an iron rod. All the accused with the log of wood and iron rod repeatedly attacked Vijayakumar, since deceased on his chest, head and body. Vijayakumar was speech less. Injured Vijayakumar was taken to Tittagudi Police Station. The accused made good their escape. A medical memo was given in the police station for admitting Vijayakumar in the Government hospital at Tittagudi. A complaint was prepared. The duty doctor in the Tittagudi Government Hospital advised Vijayakumar to be taken to the Head Quarters Hospital. As they were proceeding towards Vridhachalam in a Car, Vijayakumar breathed his last. Then all of them returned to Tittagudi Police Station and took the dead body to the Government Hospital at Tittagudi. The dead body was kept in the mortuary. After 7.30 p.m. on 24.11.2002 the witnesses were examined. Ex.P.1 is the complaint given to him. 4. P.W.12 is the investigating officer. At 10.30 p.m. on 23.11.2002, P.W.1 appeared before him and gave a written complaint, which he registered in his police station crime No.326 of 2002 for offences under Sections 147, 148, 341, 294, 324 and 307 I.P.C. Ex.P.4 is the printed First Information Report. Along with the police medical memo 70 of 2002 Vijayakumar was sent by him to the Government Hospital at Tittagudi for treatment. A.1 appeared before https://hcservices.ecourts.gov.in/hcservices/ him at 10.30 p.m. and gave a complaint, which he registered in his police station crime No.327 of 2002 under Sections 147, 148, 294 and 324 I.P.C. He sent injured A.1 with a police medical memo to the hospital. P.W.12 received the information that Vijayakumar breathed his last on his way to the Government Head Quarters Hospital at Cuddalore and that the dead body was brought back to the Government Hospital at Tittagudi. He accordingly added Section 302 in the complaint already registered. Ex.P.5 is the altered First Information Report. Then he sent the altered Express Record through a police constable to the Court as well as to the higher officials. He reached the crime scene at 00.15 a.m. on 24.11.2002 in the presence of P.W.5 and another. He prepared Ex.P.6, the Observation Mahazar and Ex.P.7, the rough sketch. From the crime scene, he recovered M.Os.8 and 9 under Ex.P.2 attested by the same witnesses. He examined P.Ws.1,2,3,4 and others and recorded their statements. From 7.00 a.m. till 9.00 a.m. on 24.11.2002 he conducted inquest over the dead body in the presence of panchayatdars and witnesses. During inquest he examined P.Ws.1 to 4 and others and recorded their statements. Ex.P.8 is the inquest report. Then he sent a requisition to the hospital for conducting post-mortem. 5. P.W.10 is the police constable, who was present throughout post-mortem. The post-mortem was done between 12 noon and 2.00 p.m on 24.11.2002. After post-motem he removed M.Os.6 and 7 from the dead body and handed over the same to the investigating officer. The dead body was given by him to the relatives. P.W.11 is the duty doctor, who did post-mortem on the dead body of Vijayakumar. During post-mortem he found various symptoms as noted by him in Ex.P.14, the post-mortem report. Ex.P.15 is the requisition given by the Inspector of Police to conduct post-mortem. The symptoms noted by him are as hereunder:- " 1. Lacerated injury of 20 x 5 x bone depth over the Left side of head. 2. Contusion of 5 cm 3 cm over the Right fore arm. The Right side both nones found franctured. 3. Lacerated injury of 3 x 2 x bone depth over the middle third of right tibia. Right side tibia found fractured. 4. Lacerated injury of 3 x 2 x 1 cm over the right thigh. 5. Contusion of 6 cm x 5 cm x 3 cm on the left side axilla. 6. Contusion 15 x 10 x 2 cm over the opigastric region of abdomen. On opening the scalp the parietal temporal side of both side of skull bone found fractured. On opening the skull and meninges a huge heamatoma over right side of corebrum present. Hyoid bone intact. Other internal organs intact. Normal." https://hcservices.ecourts.gov.in/hcservices/ According to him death would have occurred 12-14 hours prior to autopsy, as a result of shock and haemorrhage due to head injury (brain) and fracture of right forearm and tibia right side. It is before P.W.11 on the previous night various injured appeared for treatment. At 10.40 p.m. on 23.11.2002 Vijayakumar was brought before him with a police medical memo by his wife for injuries shown to have been sustained by him at 8.30 p.m. on that night at the hands of eight persons by the use of a stick. P.W.11 found Vijayakumar unconscious and he was struggling for his breath. He referred him to the Government Head Quarters Hospital at Cuddalore since he had very serious wounds. At 11.30 p.m. on 23.11.2002 P.W.2 appeared before him for injuries shown to have been sustained by her at 8.30 p.m. on that night at the hands of a known person with the use of cart peg. On her he found various injuries as noted by him in Ex.P.16, the Accident Register. A lacerated injury of 5 cm x 2 cm x 1 cm on the centre of the head and a contusion 5 cm x 3 cm over the left forearm. Fracture of both bones was noticed. At 10.45 p.m. on 23.11.2002 P.W.4 appeared before him for injuries shown to have been sustained by him t 8.30 p.m. at the hands of a person by the use of an iron pipe. On him he found a lacerated injury of 6 cm x 3 cm x bone depth over the right side of fore head; a contusion of 5 cm x 3 cm x 1 cm over the left elbow and a contusion of 6 cm x 2cm x 1 cm below the left scapula. Ex.P.17 is the Accident Register. P.W.4 was treated as an out patient. 6. P.W.12 recovered the personal wearing apparel produced before him by P.W.10 the Police Constable under form 95/Ex.P.9. Photographs of the crime scene was taken by a photographer by name Kozhinji. Ex.P.10 series are the photographs and the negatives. P.W.12 examined witnesses in Crime No.327 of 2002 recorded by him and recorded their statements. Then he referred the complaint in Crime No.327 of 2002 (given by A.1) as a "mistake of fact". At 4.30 p.m. on 25.11.2002 near a petrol bunk at Elamangalam in Tittagudi- Ramanatham Main Road, he arrested A.1 and A.4 in the presence of P.W.5 and another.A.1 gave a voluntary confession statement at that time, the admissible portion of which is Ex.P.11. Pursuant to Ex.P.11, M.O.1, the iron rod and M.O.3, the wooden log came to be recovered at the instance of A.1 and A.4 under Ex.P.12. The arrested persons and the case properties were brought to the police station and the accused were sent for judicial remand. At 5.00 a.m. on 26.11.2002 P.W.12 arrested A.2,A.5 and A.6 in the presence of P.W.5 and another. A.2 gave a voluntary confession statement at that time, the admissible portion of which is Ex.P.3. Pursuant to Ex.P.3, at the instance of A.2, M.O.2, the iron rod and M.O.4, the wooden log came to be recovered under Ex.P.13 in the presence of the same witnesses. The arrested accused and the case properties were brought to the police station and the accused, were sent for judicial remand. At 1.00 p.m. on 2.12.2002 he arrested A.3 with the help of a lady Sub Inspector of Police and sent her for judicial remand. https://hcservices.ecourts.gov.in/hcservices/ 7. The evidence of P.Ws.2,3,4 and 6 regarding the occurrence proper is on the same lines as spoken to by P.W.1. P.W.5 witnessed the preparation of Ex.P.2, the Observation Mahazar; the arrest of A.2; his examination and recording of his confession statement, leading to the recovery as already spoken to by P.W.12. P.W.7 examined as an eye witness to the occurrence turned hostile. However before she came to be treated as hostile, she admitted that next to the house where Vijayakumar lives, is her house but however she is not living there. She would state that she lives ten houses away from Vijayakumar's house. P.W.8 and 9 are also examined as eye witnesses to the occurrence. However they did not implicate A.5 and A.6 in any manner in the occurrence. In all other aspects, their evidence is on the same lines as spoken to by P.Ws.1 to 4 and 6. 8. P.W.12 continued his investigation by examining witnesses and recording their statements. The case properties were sent to the Court with a requisition to subject the same for chemical examination. The personal wearing apparels removed from the dead body of Vijayakumar after post-mortem, were sent to the laboratory. Ex.P.8 is the Serologist's Report, which shows that those personal wearing apparels contain human blood. After completing the investigation and after complying with all the other legal formalities, P.W.12 filed the final report in Court against the accused on 6.1.2003 under Sections 147, 148, 323, 307 and 302 read with 149 I.P.C. When the accused were questioned under Section 313 of the Code of Criminal Procedure on the basis of the incriminating materials made available against each one of them, they denied each and every circumstance put up against them as false and contrary to facts. A.1 alone filed a separate written statement. It is a lengthy statement and therefore we extract hereunder as to what he stated in his statement. "P.Ws.1 to 4 and 6 are speaking falsehood; they have not made true disclosures about the crime; P.Ws.8 and 9 were not at the crime scene at all; P.W.12 the investigating officer is speaking false hood; neither A.1 nor A.2 gave any statement to him; at 8.30 p.m. on 23.11.2002, the deceased under the influence of alcohol came out of the house only wearing his inner wear and a banian; he was vulgarly abusing A.3 and the other women folk of the accused party; there has been a long standing enmity between the two families; a number of cases are pending; A.1 asked the deceased as to why he is talking like that; the deceased hit on A.1's head with an iron rod resulting in a bleeding injury; the deceased once again moved to attack A.1; A.1 picked up a cart peg available in the pial of his house and hit him on his https://hcservices.ecourts.gov.in/hcservices/ head once; the deceased again attempted to attack A.1 and at that time A.2 with a stick in his hand pushed aside the iron rod in the hand of Vijayakumar, since deceased; luckily A.1 survived; P.W.4 attacked A.2 indiscriminately with a log of wood; P.W.2 and P.W.3 holding A.3 by her tuft handled her forcibly; A.3 with a view to get out of the hold, pushed P.W.2 resulting in P.W.2 falling to the ground; nobody beat P.W.2; A.2 beat P.W.1; A.5 and A.6 were not on the crime scene at all. In the complaint given by P.W.1; at the first time the names of A.5 and A.6 were not there; A.4 did not attack any body; he has been falsely implicated; at 10.30 p.m. A.1 went to the investigating police station with a bleeding injury and gave a complaint; P.W.1 also gave a complaint; P.W.12 sent A.1 to the hospital for treatment; A.2 also was in the police station with injuries; however he was detained in the police station itself; the Doctor advised A.1 to go to the Government Head Quarters Hospital at Cuddalore; by that time P.W.12 received the information that Vijayakumar died; therefore P.W.12 did not allow A.1 to go to the Government Head Quarters Hospital at Cuddalore; A.1 and A.2 were detained in the police station itself; A.2 was not sent for treatment to the hospital; A.1 was sent for judicial remand two days later; A.2 continued to be in the police station; supporters of the accused staged dharna opposite to the police station two days later and it is only then A.2 was sent for treatment to the hospital and then for judicial remand; P.W.12 had not communicated the result of investigation to A.1 on the complaint given by him; A.1 had also not received any notice from the Court in regard thereto; A.1 and A.2 acted only in self defence; the accused party did not begin the quarrel; between the prosecution party and the accused there has been enmity for the last ten years and therefore suppressing the truth they have given false information; Saraswathy and Alamelu are eye witnesses to the crime and they have not been examined; if they had been examined, truth would have come out." As noted earlier, neither oral nor documentary evidence was brought before Court at their instance. 9. Mr.A.Padmanabhan, learned counsel appearing for the appellants would contend that the investigation in this case is a biased one in favour of the prosecution party. The investigating https://hcservices.ecourts.gov.in/hcservices/ Officer, though had sent A.1 for treatment with the medical memo, had not taken care to produce the Accident Register or the Wound Certificate for A.1 in Court. Likewise, the treatment given to A.2 also at the instance of the police officer had been withheld. On top of this, not only the complaint given by the first accused to him and registered in Crime No.327 of 2002 had been suppressed but also the final report on that complaint is also held back. Though the occurrence could have taken place, yet, it did not take place in the manner as spoken to by the prosecution. Injuries on A.1 and A.2 had not been explained at all. Though the failure to explain the injuries on the accused is not fatal in each and every case, yet, how far such failure would affect the prosecution case would depend upon the facts available in each case. Therefore learned counsel for the appellants would state that the prosecution is suppressing the very origin of the case and giving that benefit, the accused may be acquitted. Mr.N.R.Elango, learned Additional Public Prosecutor would admit that the witnesses did not explain the injuries found on A.1 and A.2. At the same time, the accused themselves by cross examining P.W.11 had got answers that he treated them for injuries. According to the learned Additional Public Prosecutor, the accused should have gone one step further by asking the Doctor to produce the Accident Register/Wound Certificates for A.1 and A.2. Since they have not done, they cannot blame the prosecution for not explaining the injuries stated to have been caused on A.1 and A.2. According to him, unless the accused discharges his burden, the prosecution cannot be faulted at all. For this purpose, learned Additional Public Prosecutor relies upon a judgment of the Supreme Court reported in 2003 S.C.C.(Criminal) Page 1697 (SUCHA SINGH v. STATE OF PUNJAB). As far as the investigation in the complaint shown to have been given by A.1 is concerned, learned Additional Public Prosecutor states that the said complaint stands registered in Crime No.327 of 2002 and P.W.12 had given evidence that he had referred the case as a "mistake of fact". According to him, this is more than sufficient compliance of the requirements of law. 10. Having regard to the arguments advanced by the learned counsel on eitehr side, we went through the records. The fact remains that Vijayakumar died due to homicidal violence. Ex.P.14 is the post-mortem certificate. P.W.11 is the doctor, who did post- mortem. Therefore we hold that the prosecution had definitely established that Vijayakumar died due to homicidal violence. P.W.11 had also examined P.W.2 and P.W.4. Ex.P.16 and P.17 are the Accident Registers. A.2 stands convicted under Section 326 I.P.C. for causing a grievous injury to P.W.2. Ex.P.16 shows that P.W.2 had suffered fracture of both bones. Ex.P.16 also shows that the patient was referred to the Government Head Quarters Hospital,Cuddalore for ortho opinion. P.W.11 admitted that X-rays of P.W.2 were taken only in the Government Head Quarters Hospital at Cuddalore and he did not see the X-rays at all. But however, he had seen the report https://hcservices.ecourts.gov.in/hcservices/ of the Radiologist. The Radiologist's report is not exhibited at all. He would also state that the injuries found on P.W.2 could be due to a fall also. Neither the orthopaedician, who treated P.W.2 nor the Radiologist, who had taken X-rays for P.W.2 have been examined. The X-rays are also not marked. Under these circumstances, we are at a loss to understand as to how P.W.11 in Ex.P.16 could state that P.W.2 had suffered fracture of both bones in the left forearm. Assuming the prosecution had succeeded in establishing the guilt of A.2 in causing hurt to P.W.2, his conviction cannot be under Section 326 I.P.C. We leave it as it is. To sum up, at this stage, we hold that the prosecution had definitely established that Vijayakumar died due to homicidal violence; P.W.4 received simple injuries and P.W.2 had also received injuries. P.Ws.2 and 4 had given evidence about the manner in which they had come to sustain the injuries. Their evidence is supported by the evidence of P.W.11. But however there is no medical evidence to show that P.W.2 had suffered any grievous injury. 11. Now let us examine the question as to whether the prosecution is guilty of suppressing the truth/ the origin of the case and if it is so, how far it would affect their case. There is no dispute that P.Ws.1 to 4 and 6 have given evidence in uniformity namely, as to how Vijayakumar and the witnesses have come to sustain the injuries. P.Ws.8 and 9 had also given evidence regarding the involvement of A.1 to A.4. There is no charge at all against A.5 and A.6 for having caused any injury on any of the witnesses. P.Ws.8 and 9 also do not speak about the involvement of A.5 and A.6 in causing any injury to any of the witnesses. Therefore the conviction of A.5 and A.6 under Section 324 I.P.C. is without a charge at all against them. On that short ground, the conviction of A.5 and A.6 under section 324 I.P.C. has to be necessarily set aside. In addition to the above we find from the evidence of P.Ws.8 and 9 that they did not implicate A.5 and A.6 in the crime. Therefore giving the benefit of their evidence and also absence of any charge against A.5 and A.6 under section 324 I.P.C, we have no hesitation at all in setting aside the judgment under challenge convicting A.5 and A.6 under Section 324 I.P.C.