Bail Slip The Appellant/Accused viz.Devaboopathi @ Mani (A1) was directed to be released on bail in an by order of this Court dated 15.10.2001 made in Crl.M.P.No.6587/2001 in CA 814/2001 and The Appellant/Accused viz.Durairaj (A2), Palanisamy (A3) were directed to be released on bail in an by order of this Court dated 11.9.2001 made in Crl.M.P.No.6140/2001 in CA 814/2001. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 16.7.2009 CORAM THE HON'BLE MR.JUSTICE M.JEYAPAUL Criminal Appeal No.814 of 2001 1. Devaboopathi @ Mani 2. Durairaj 3. Palanisamy Appellants/Accused 1 to 3 vs. The State of Tamilnadu rep by The Sub Inspector of Police, Anamalai Police Station, Coimbatore. Respondent/Complainant Criminal Appeal filed under sections 374(2) Cr.P.C. to set aside the judgment dated 23.8.2001 delivered in S.C.No.57 of 2001 by the I Additional District Judge cum Chief Judicial Magistrate, Coimbatore. For appellant : Mr.Ashokkumar, Senior Counsel for Mr.K.Kalyanasundaram For respondent : Mr.N.Kumanan, Govt. Advocate (Crl. Side) https://hcservices.ecourts.gov.in/hcservices/ JUDGMENT All the three accused, who were convicted and sentenced by the Trial Court are before this court by way of appeal. The first accused was convicted for offence under section 304(ii) and section 324 (3 counts) of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for four years and one year for each count respectively with usual default sentence. The second and third accused were convicted for offences punishable under section 304(ii) read with section 109 of the Indian Penal Code and were sentenced to undergo two years rigorous imprisonment with usual default sentence. 2. On the side of the prosecution, 17 witnesses were examined and Exs.P1 to P30 were marked. On the side of the accused, one Thangaraj, Record Clerk of Government Hospital, Pollachi was examined as DW1 and Exs.D1 to D4 were marked. The materials objects were marked as M.O.1 to M.O.15. 3. The brief facts of the prosecution as reflected from the evidence let in by the prosecution reads as follows:- a) A1 and A2 are the sons of A3. PW1 and the deceased Nachimuthu are co-brothers having got married PW2 and PW3 respectively. P.Ws.4 and 5 are the brothers of the deceased. b) About six months prior to the occurrence, there was a quarrel between one Gopal and accused 1 to 3. PW1 intervened and pacified them and on account of which, the accused and his family members were not on talking terms with PW1 and his family members. c) In the month of March 1999, the deceased Nachimuthu and his family invited PW1 and his family members for Mahaliamman Temple festival. PW1's family was staying in the house of the deceased Nachimuthu on and from 2.3.1999 responding to the invitation extended by PW1 and his family. d) on 3.3.1999, there was a quarrel between A1 and A2 on the one side and PW1 and the deceased Nachimuthu on the other side. On 3.3.1999 at about 8.00 p.m., when PW1 and his co-brother deceased Nachimuthu were conversing with each other at the entrance of his house, A1 to A3 came over there and A1 started attacking PW1 with knife and as a result of which PW1 sustained injury in his thumb, index finger and on his back. PW2 and PW3, who were present in the scene of occurrence, witnessed the occurrence. e) The deceased Nachimuthu tried to prevent A1 from attacking PW1. Infuriated by such an intervention, A1 started attacking the deceased Nachimuthu by stabbing with knife M.O.1 while A2 and A3 caught hold of his hands to facilitate launching of attack by A1 on the deceased Nachimuthu. The inmates of the house started attacking the deceased with coconut stick and wooden reapers. A1, on his part, attacked PW4 and PW5, who also witnessed the occurrence. https://hcservices.ecourts.gov.in/hcservices/ f) The deceased Nachimuthu was taken to Government Hospital, Vettaikaranputhur where he was declared dead. Necessary intimation was despatched to Anamalai Police Station. PW1 was taken to Nair Hospital run by Dr.Muralidharan, PW7. PW4 and PW5, who also sustained injuries, were taken to Alwa Hospital run by Dr.Alwa, PW8. Ex.P2 is the wound certificate issued to PW5 and Ex.P3 is the wound certificate issued to PW4. g) The Sub Inspector of Police, PW13 attached to Anamalai Police Station, having received intimation from Government Hospital, Vettaikaranputhur, rushed to the hospital at about 22 hours on the same day and obtained statement, Ex.P1 from PW1. He registered a case at about 22.45 hours in Crime No.56 of 1999 under sections 302, 307, 342 and 324 of the Indian Penal Code and prepared printed FIR, Ex.P18. The first accused also gave a complaint and the same was registered in Crime No.57 of 1999 under section 324 of the Indian Penal Code. h) The Inspector of Police, Mr.Murugesan, PW17 took up the case for investigation. He conducted inquest at 00.30 hours on 4.4.1999 and prepared inquest report, Ex.P24. He examined PW3, PW4 and other witnesses over there. The dead body of Nachimuthu was despatched with the requisition, Ex.P4 through the Head Constable, PW16 for having post mortem examination. i) PW17, during the course of investigation, recovered/seized bloodstained shirts M.O.13 and M.O.14 from PW1 and PW4 under mahazars Exs.P25 and P26. The observation mahazar and rough sketch prepared by him were marked as Exs.P27 and P28 respectively. He also seized blood stained cement portion, M.O.8 and sample cement portion, M.O.9 in the presence of PW14. j)Dr.Sivanandan, PW9 conducted post mortem examination on the dead body of Nachimuthu and issued post mortem certificate, Ex.P5. PW9 has opined that the deceased appeared to have died due to injuries to vital organs and hemorrhage about 12 to 16 hours prior to post mortem examination. PW16, the Head Constable, who accompanied the dead body, seized the blood stained clothes, M.O.7 and M.O.10 to M.O.12 from the dead body of Nachimuthu and produced the same before the Inspector of Police, PW17. k) On 5.3.1999, at about 5.00 am, PW17 arrested A2 and A3 in the presence of PW10 and obtained confession statement. On the basis of the admissible portions, Exs.P8 and P9 in the confession statement given by the second and third accused respectively, M.O.15 and M.O.6 viz., lungi, and the shirt under mahazars Exs.P29 and 30 were seized. On 9.3.1999, when A1 was discharged from the hospital, PW17 arrested him and seized M.O.3 dhothi, M.O.4 shirt and M.O.5 plastic bag containing M.O.3 and M.O.4 under mahazar Ex.P11. l) The first accused also gave a confession statement and on the basis of admissible portion, Ex.P12 in his statement, M.O.1 knife was recovered from a thorny bush at Dr. Balaraman Thottam. PW17 despatched the material objects seized and recovered to the learned Judicial Magistrate I Pollachi. PW12 is the Head Clerk, who spoke https://hcservices.ecourts.gov.in/hcservices/ about the receipt of the material objects and despatch of them to the chemical examiner on the basis of the request, Ex.P14 given by PW17. The material objects were sent for chemical examination under covering letter, Ex.P15. The chemical analysis report and the serologist report, Exs.P16 and P17 were marked. PW17, having examined the witnesses in this case, laid final report as against A1 to A3 on 17.3.1999. 4. Learned Senior Counsel appearing for the appellants/accused would submit that the prosecution has chosen to suppress the criminal prosecution initiated by the first accused. The injuries sustained by him were also not brought to the notice of the court. Therefore, the court will have to entertain a suspicion which surrounds the whole case of the prosecution. The prosecution has come out with an artificial version as regards the alleged role of A2 and A3. PW6, the independent witness in this case has categorically stated that there was a quarrel between PW1 and the deceased Nachimuthu on the one side and A1 and A2 alone on the other side. Never had he spoken to the role of A3 in the occurrence as alleged by the prosecution. There was no reason for A2 and A3 to facilitate A1 to attack Nachimuthu against whom there was no enmity harboured by the accused. There was no weapon in the hands of A2 and A3. They had not sustained any injury in the alleged counter attack launched by the prosecution party which would go to show that they were not the participants in the occurrence. Therefore, he would submit that all the accused are entitled to acquittal as the case of the prosecution is highly doubtful. 5. Learned Government Advocate (Criminal Side) would vehemently submit that the evidence of PW1 to PW5, the occurrence witnesses in this case, would go to establish beyond any reasonable doubt that not only A1 but also A2 and A3 participated in the occurrence and committed the offences. It is his further submission that the counter attack launched by the prosecution parties as against A1 was spoken to by the prosecution witnesses even during the course of chief examination. As the injury sustained by A1 was negligible and the case was closed, there was no occasion for PW17 to come out with the closure report and the wound certificate of A1. Even otherwise, such a lapse on the part of the investigating agency would not go to shatter the case of the prosecution which had been laid with a stronger foundation. Therefore, he would submit that the Trial Court has rightly returned the verdict as against the accused and sentenced them accordingly. 6. P.Ws.1 to 5 have categorically spoken to the attack launched by A1 not only on PW1 but also on the deceased and PW4 and PW5. PW1, PW4 and PW5 are the injured witnesses in this case. Their categorical version before the court in the background of the medical testimony available on record that they did sustain injury in the https://hcservices.ecourts.gov.in/hcservices/ occurrence cannot be simply ignored by this court. Their evidence does not require any corroboration. But, in this case, it is found that P.Ws.2 and 3 who were also present in the very same house have spoken to the attack launched by A1 with knife M.O.1 and caused injuries not only to the deceased Nachimuthu but also to PW1, PW4 and PW5. The occurrence had taken place at 8.00 p.m. on 3.3.1999 in the house of the deceased Nachimuthu. The evidence would go to show that Nachimuthu invited the family members of PW1 for celebrating the temple festival. No wonder PW1 and PW2 were present in the house of the deceased and PW3. PW4 and PW5 are the brothers of the deceased who also resided in the very same village. It is quite natural for the brothers to come down to the house of their brother the moment they came to know that there was some untoward incident in the house of their brother. They are natural witnesses whose testimony cannot be simply brushed aside. There is no reason to reject their evidence. Therefore, the court finds that the Trial Court has rightly returned the verdict considering the ocular testimony of P.Ws.1 to 5 in the background of the medical testimony available on record that A1 launched attack with knife M.O.1 on PW1, PW4 and PW5 and caused injury and launched murderous attack on Nachimuthu indiscriminately and caused his death. 7. Coming to the role of A2 and A3, it is true that PW1 to PW5 have deposed that A2 and A3 caught hold of Nachimuthu facilitating A1 to attack him indiscriminately. The court has thoroughly analysed the evidence to find whether such an act can be attributed to A2 and A3 in this case. PW6, the independent witness has spoken to the effect that he spotted only A1 and A2 in the scene of occurrence about half an hour prior to the scene of occurrence. His evidence gives rise to a doubt whether A3 in fact participated in the occurrence alleged by the prosecution. The testimony of PW6 is strengthened by the other circumstances involved in this case. The fact remains that A1 alone was armed with weapon, M.O.1. It is the case of the prosecution that all the accused came to the house of Nachimuthu for the purpose of attacking PW1. The occurrence had take place in a rural village. As such, if A2 and A3 had decided to do away with the life of PW1, both would have been armed with weapons. There is no reason for A1 alone to be armed with weapon and A2 and A3 to be unarmed with any weapon. PW1 and PW5 launched the attack on the perpetrators of the crime as per the case of the prosecution. It is further spoken to by the witnesses that A2 and 3 caught hold of Nachimuthu to facilitate A1 to launch vigorous attack on the deceased. If at all A2 and A3 were present and actively facilitating A1, they would have also received injury in the counter attack launched by PW4 and PW5. P.W4 and PW5 would have shown their anger as against A2 and A3 also as they were in the process of facilitating A1 completely unarmed to attack Nachimuthu. 8. The deceased Nachimuthu sustained injury on the back of the https://hcservices.ecourts.gov.in/hcservices/ left side elbow. It is the case of the prosecution that Nachimuthu received any injury beforeever A2 and A3 caught hold of Nachimuthu. Beforeever A1 launched attack on Nachimuthu, A2 and A3, as per the case of the prosecution, had caught hold of the deceased Nachimuthu. There could have been no occasion for the deceased to receive an injury on the back of the left side elbow, if at all A2 and A3 had tightly caught hold of the deceased. PW3, who is none other than the wife of the deceased, would state in an unambiguous term that there was no enmity with the accused family. Therefore, A2 and A3 would not have caught hold of the deceased Nachimuthu, who just intervened when PW1 was attacked by the first accused. There is, of course, chance for A1 to act as against the intervenor but, there is no reason for A2 and A3 who had no enmity with Nachimuthu to violently caught hold of him to facilitate A1 to cause his death. Therefore, the court finds that the parrot like version of P.Ws.1 to 5 in the above matrix of discussion embarked upon by this court that A2 and A3 also participated in the occurrence and caught hold of the deceased Nachimuthu to facilitate A1 to cause death of Nachimuthu is found to be quite unbelievable. 9. It is true that the criminal case launched by A1 was closed as mistake of fact. The decision arrived by PW17 was not put to challenge before the forum concerned by A1. The first information report, Ex.D2 launched by the first accused and the copy of the accident register would go to show that A1 had sustained only simple injury. Though PW17 failed to produce those two documents along with the closure report before the court for perusal, it is found that the material ocular witnesses examined on the side of the prosecution have candidly deposed even during the chief examination that PW4 and PW5 chose to launch a counter attack with coconut stick and cause some injury on the person of A1. 10. This court in In Re: BOYA GAJJI PEDDA VENKATANNA ALIAS BODENNA AND OTHERS v. STATE (AIR 1954 MADRAS 15) chose to observe as follows:- "In a complaint and counter-complaint such as this obviously arising out of the same transaction when the prosecution proceeds on the basis of the complaint, we think it is the duty of the prosecution to exhibit the counter-complaint through the police officer who recorded it and also to prove medical certificates of persons wounded on the opposite side also and place before the court a definite case which they ask it to accept. We must deprecate the prosecution in such cases accepting, in toto one complaint and examining only witnesses who support it and give no explanation at all for injuries caused to the https://hcservices.ecourts.gov.in/hcservices/ other side. The truth in these cases is invariably not in strict conformity with either complaint and it is quite necessary that all the facts are placed before the court to enable it to arrive at the truth and a just decision." 11. That was a case where neither side chose to admit the injuries on the other side. In fact, there was no explanation on the side of the prosecution for the injuries caused to DW2 examined in that case. The defence in Ex.D10 marked therein has also not referred to anything about the injuries sustained by the prosecution witnesses. But, in the case on hand, both sides have come out with the true facts as to the injuries sustained by PW1, PW4 and PW5 and A1. Even during the course of chief examination, the prosecution witnesses have chosen to disclose the circumstances under which the injuries were caused on the person of A1. The defence also produced Exs.D2 and D3 to explain the circumstances under which Ex.A1 sustained injury. Therefore, nothing was suppressed as regards the injuries sustained by both the parties in this case. Of course, there is some lapse on the part of the investigating agency in not producing those documents from its file. But, when voluminous evidence from the mouth of the injured witnesses are available to establish the case of the prosecution that it was only A1 who caused the death of Nachimuthu by indiscriminately cutting him with knife, M.O.1, the court finds that it is unjust to throw away the entire case of the prosecution on the sole ground that the investigating official failed to project the first information report lodged by A1, wound certificate issued by the Doctor concerned and the closure report of the case of the first accused as mistake of fact. 12. This court in yet another case viz., KRISHNAMOORTHI v. STATE (1989 LW (Crl.) 415), referring to Order 558-A of the Madras Police Stating Orders which cast a duty upon the investigating officer to come out truthfully with regard to the case and counter case, chose to reject the case of the prosecution projected suppressing the counter case set up by the accused. The court has observed that it is not safe to fasten the criminal liability on the accused in such circumstances. 13. That was a case where the deceased and PW1 sustained injuries on the attack mounted on them by the villagers. The theory of the defence assumed seminal importance when the counter case projected by the defence was not properly brought to light by the Sub Inspector of Police concerned. 14. In the instant case, there is no such attack mounted by the villagers to give room for doubt as regards the injuries sustained by the rival parties. Further, there is no suppression made by the witnesses to the occurrence as regards the injuries sustained by the https://hcservices.ecourts.gov.in/hcservices/ first accused. The case of the prosecution that simple injury was caused in the counter attack made by P.Ws.4 and 5 on the first accused is found to be acceptable. Therefore, the court is not inclined to reject the entire case of the prosecution on the technical ground that the counter case launched by the first accused was not properly projected by the defence. 15. Except the evidence of PW6, who was actually not present at the exact time of occurrence, no material is there to show that an occasion arose for the first accused to defend himself exercising the right of private defence. 16. In view of the above facts and circumstances, the court finds that the prosecution has established beyond reasonable doubt that it was only the first accused who attacked Nachimuthu and caused his death and also attacked PW1, PW4 and PW5 with lethal weapons and caused injuries on them and thereby committed offences punishable under sections 304(ii) and section 324 (3 counts) of the Indian Penal Code. There is no warrant for interference with the verdict of conviction and sentence recorded as against the first accused by the Trial Court. As there is ample doubt in the case of the prosecution as regards the alleged abetment of A2 and A3 to commit the offences by A1, the entire case of the prosecution as against A2 and A3 stands rejected. 17. In the result, the judgment of conviction recorded by the Trial Court under sections 304(ii) and section 324 (3 counts) of the Indian Penal Code and sentence imposed on the first accused is sustained and the conviction recorded under section 304(ii) read with section 109 of the Indian Penal Code and the sentence imposed thereunder as against A2 and A3 stands set aside. As a consequence, A2 and A3 are acquitted and are set at liberty. Fine, if any, paid by them shall be returned. Bail bonds, if any, executed by them shall stand annulled. A1 shall surrender before the Trial Court within fifteen days to undergo the remaining period of sentence failing which, the Trial Court shall take steps to secure him to send him to jail to undergo the remaining period of sentence. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ssk. https://hcservices.ecourts.gov.in/hcservices/ To 1. The I Additional District Judge cum Chief Judicial Magistrate, Coimbatore. 2.-do- Through the Principal District Judge, Coimbatore. 3. The Sub Inspector of Police, Anamalai Police Station, Coimbatore. 4.The Judicial Magistrate No.1, Pollachi. 5.-do- Through Chief Judicial Magistrate, Coimbatore. 6.The Public Prosecutor, High Court,Madras. 7.The Section Officer, Crl.Section, High Court,Madras. +1cc to Mr.K.Kalyanasundaram, Advocate Sr 31915 PUR(CO) km/23.7. Crl.A.No.814 of 2001 https://hcservices.ecourts.gov.in/hcservices/