BAIL SLIP The Appellant in (i) Crl.A.No.1018 of 2004, (Accused 8 & 10 in S.C.No.179 of 1999 on the file of the I Additional Sessions Judge, Salem) (ii) Crl.A.No.1080 of 2004 (Accused 2 to 7 and 9 in S.C.No.179 of 1999 on the file of the I Additional Sessions Judge, Salem) were released on bail as per order dated 31.8.2004 in CRL MP No.8995 of 2004 & dated 7.9.2004 in Crl MP No.9389 of 2004 (A1 in Crl.M.P.No.9389/2004, dated 5.10.2004). IN THE HIGH COURT OF JUDICATURE AT MADRAS Date: 14.12.2011 Coram THE HONOURABLE MS. JUSTICE K.B.K.VASUKI CRIMINAL APPEAL Nos.1018 and 1080 of 2004 1. M.G.Ramachandran 2. Mohan ... Appellants in Crl.A.1018/2004/ Accused 8 & 10 1. K. Palanisamy 2. Venkatachalam 3. Ayyandurai 4. Palanisamy 5. Malliyammal 6. Kamalam 7. Santhi 8. Muthupaiyan ... Appellants in Crl.A.1080/2004/ Accused 1 to 7 & 9 -Vs.- State represented by Inspector of Police Salem Steel Plant Police Station Crl No.826/97 ... Respondent in both the appeals/ Complainants Appeals against the judgment dated 29.07.2004 made in S.C.No.179 of 1999 on the file of the I Additional Sessions Judge, Salem. For Appellants in both appeals :M/s.K.V.Sridharan For Respondent in both appeals :Mr.C.Iyyapparaj Govt. Advocate (Crl.Side) https://hcservices.ecourts.gov.in/hcservices/ C O M M O N J U D G M E N T Both the appeals are filed by A1 to A10 (Crl.A.No.1018 of 2004 by A8 and A10 and Crl.A.No.1080 of 2004 by A1 to A7 and A9) against their conviction and sentence for the following offences under Sections A1 - 148 and 304(ii) IPC A2 - 148 and 324 (2 counts) IPC A3 - 148, 324 and 326 IPC A4, A8 to A10 - 148 and 324 IPC A5 to A7 - 147 and 323 IPC. 2. The case of the prosecution is that the complaining party and the accused party do belong to the same village and A1 Palanisamy borrowed Rs.4,000/- from Nallappan, since deceased and A1 failed to repay the amount and when Nalliappan, since deceased, demanded repayment, there arose a wordy altercation between the principal and the borrower, resulting in police complaints against each other. Both the police complaints were enquired by the police resulting in an undertaking given by the borrower to repay the amount within 20 days. While so, on 13.10.1997, deceased Nallappan and his son by name Arumugam, had been to the house of Palanisamy and demanded payment and Palanisamy not only refused to do so, but indulged in wordy quarrel with Nallappan and his son, in the course of which, all the accused herein, who are his family members armed with sticks assembled there and started assaulting Nallappan and Arumugam and on hearing their noise, other injured rushed to the scene of occurrence and they were also, in the course of their attempt to prevent further quarrel between the two, injured by the accused party, and the complaining party unable to withstand the attack, picked up the sticks lying in the scene of occurrence and assaulted the attacking party, thereby caused injuries to the attacking party. Immediately thereafter, the accused party rushed to police station and lodged the complaint against Nallappan and others and the same was registered as Crime No.825 of 1997 and the other party, who are the complaining party herein, reached the police station at 11.00 a.m and lodged a complaint against Palanisamy and his family members and the same was received by PW.15 Sub-Inspector of Police and was registered as Crime No.826 of 1996 for offences under Sections 147, 323 and 324 and both First Information Reports were forwarded to the concerned Judicial Magistrate Courts and commenced joint investigation upon both First Information Reports. Immediately thereafter, PW.15 Sub-Inspector of Police after having seized blood stained dresses from the injured under Form-95, sent the injured to Mohan Kumaramangalam Government Hospital, Salem, where the injured party were seen and examined by two doctors for the injuries sustained by them and the nature and number of injuries were independently recorded in the accident registers. The Sub-Inspector of Police also had been to the scene of https://hcservices.ecourts.gov.in/hcservices/ occurrence and prepared observation mahazar, rough sketch and obtained statements from the witnesses and seized seven sticks from the scene of occurrence left by the accused and met the injured-cum- accused in the Salem Government Hospital and obtained statements from them. During the pendency of investigation Nallappan, who was one of the injured in the complaining party and none-else than the father of PW.1, was operated for the injuries, but he died during post operation care. Thereafter the investigation was continued by PW.16 Inspector of Police, who in the course of his further investigation had been to the scene of occurrence and enquired the neighbours. PW.18, Inspector of Police had been to the Government Hospital and held inquest on the dead body of Nallappan in the presence of witnesses and prepared Inquest Report and caused the dead body to be sent for postmortem. PW.18 also arrested the accused at 2.15 p.m on 24.10.1997 at Kaliaperumal Kovil, Karadu Adivara Mandapam, Salem and on their being arrested, the accused gave their voluntary confession statements and they were remanded to judicial custody and statements were obtained from other witnesses. In the meanwhile, Inspector of Police / Investigating Officer also received another complaint from Palaniammal W/o. Marimuthu, one of the accused herein, which was registered as Petition No.187/1997. The Investigating Officer also forwarded material objects, seized in the course of his joint investigation in both the cases, to the concerned Judicial Magistrate and obtained statement from the postmortem Doctor and statement from the injured Palaniammal and collected the wound certificates relating to all the injuries and filed the final report in Cr.No.825 of 1997 and referred the same as mistake of fact and filed the charge sheet in Cr.No.826 of 1997 against the accused for the offences as above referred to. 3. The charge sheet filed against the accused was taken up on file in PRC.No.5 of 1998 on the file of the learned Judicial Magistrate No.I, Salem, who committed the same to the District Sessions Court, where it was taken up on file as S.C.No.179 of 1999. 4. The trial Court framed the charges against the accused for the offences under Sections 148, 149, 302, 302 r/w.149, 323, 324 and 326 IPC and the accused denied the charges and faced the trial. 5. The prosecution, in order to prove the guilt of the accused, examined the son of defacto complainant and other injured, mahazar witnesses, doctors who treated the injured and the accused party, postmortem doctor, mahazar and seizure witnesses, postmortem constable, Sub-Inspector of police, who registered the case and held part of investigation, and the Investigating Officer, who completed the investigation and filed charge sheet against the accused and also filed referred charge sheet in the connected First Information Report arising out of the complaint given by the accused party as PW.1 to PW.18 and produced the wound certificates of the accused and the prosecution witnesses-cum-injured, the First Information Report in https://hcservices.ecourts.gov.in/hcservices/ Cr.Nos.825 and 826 of 1997, rough sketch, observation mahazar, seizure mahazar, complaint given by Palanisamy, X-rays of the injured, inquest report of the deceased Nallappan, final police report filed in Cr.No.825 of 1997, death intimation of Nallappan, Inquest Report, postmortem certificate, chemical report, blood group report as Exs.P1 to P47, besides blood stained dresses and wooden sticks numbering 7 as M.O.1 to M.O.14. The accused, in support of their defence regarding the manner of occurrence, examined the Inspector of Police by name Rajan as DW.1 and produced his report sent to superior officials as Ex.D1. The trial Court on the basis of the available evidence believed the prosecution case as if the accused party are the first aggressors and the complaining party -cum - injured assaulted the other party only by way of self defence and hence found the accused guilty and convicted and sentenced them. Aggrieved against the same, the accused A1 to A10 preferred the present two appeals before this Court. 6. Heard the rival submissions made on both sides. 7. The facts which remain undisputed are that A1 Palanisami herein borrowed Rs.4,000/- from the deceased defacto complainant by name Nallappan and there was some misunderstanding and quarrel between two groups, due to failure of A1 in repaying the amount and there were earlier police complaints, which were enquired and closed on the basis of the undertaking given by A1 to repay the amount within reasonable time and he failed to comply with the undertaking and the defacto complainant along with his son PW.1 Arumugam at 7.00 a.m on 13.10.1997 had been to the house of A1, where A1 had been during the relevant point of time residing with his family members and the defacto complainant demanded the amount and A1 did not comply with the demand and there arose wordy quarrel and physical assault between each other by using wooden sticks and other dangerous weapons in the course of which, PW.2 to PW.7 and the accused A1 to A7 and A9 were also injured as evident from medical evidence resulting in two complaints and two First Information Reports in Crime No.825 of 1997 filed by A1 Palanisamy against Nallappan and other prosecution witnesses and Crime No.826 of 1997 registered on the basis of the complaint given by the deceased Nallappan against Palanisamy and his family members and both were jointly investigated by Sub-Inspector of Police, Mallur Police Station and during the pendency of investigation by Sub-Inspector of Police, Nallappan died of injuries sustained by him after operation and the investigation was completed by the Inspector of Police and he filed referred charged sheet in Crime No.825 of 1997 and filed the charge sheet against the accused in Crime No.826 of 1997. The facts above stated, which are supported by the materials collected by the Investigating Officers and the medical evidence would prove the factum of occurrence and that of the injuries sustained by both parties. What is seriously denied by the accused herein is the manner of occurrence. https://hcservices.ecourts.gov.in/hcservices/ 8. According to the accused party, the deceased Nallappan and his son along with few others had been to their house armed with wooden sticks and other weapons and they picked up quarrel and started assaulting them and it was only retaliated by the accused party as such, they are not the first aggressors. But the specific case of the prosecution is that the accused party are the first aggressors and the other party indulged in the act of assault of the accused party only by way of self defence and the injuries caused upon the accused party are thus properly explained by the complaining party. Such case of the prosecution based mainly on the basis of the oral evidence of prosecution side witnesses, is in my considered view totally unreliable, for the following reasons:- (i) Here is the case wherein there are the complaint and counter-complaint resulting in case and counter-case. However, the final report filed by PW.18 - Investigating Officer to the effect as above referred to is not supported by any materials and not even spoken by any of the prosecution witnesses. Seven witnesses are examined on the side of the prosecution to establish the prosecution case regarding the manner of occurrence. Out of seven witnesses, PW.1 is not injured, but PW.2 to PW.7 are injured. All the seven witnesses were admittedly present in the scene of occurrence, which is admittedly in front of the house of A1. Though all the witnesses, both in their chief and cross examination, deposed only about the manner in which and persons by whom the deceased Nallappan and PW.2 to PW.7 were assaulted and injured, they did not whisper anything about the assault of the accused by them by way of self defence. As a matter of fact, all the witnesses have categorically denied they did not give any such statement to the Investigating Officer to the effect that they unable to bear the pain of injuries caused by the accused party and picked up the sticks lying in the scene of occurrence and retaliated the act of assault in the course of which, the accused party sustained injuries. The prosecution witnesses went to the extent of denying any injuries on the part of the accused. If that is so, the prosecution case that the accused party are the first aggressors and the complaining party did not commence the act of assault and they reacted only by way of self defence and they properly explained the cause of injuries on the accused is only an invented one and remains uncorroborated by any one of the prosecution witnesses. (ii) The Investigating Officer has also not produced any other material to prove such case before the trial Court. Though in the case of this nature ie., complaint and counter complaint, the Investigating Officer is required to conduct joint or simultaneous investigation and to place before the court concerned, all the materials collected in the course of investigation to enable the Court to ascertain as to who is the real aggressor and about the genesis and origin of the occurrence, the Investigating Officer failed to comply with such procedure. Though some of the documents https://hcservices.ecourts.gov.in/hcservices/ relating to the investigation held upon Crime No.825 of 1997 such as complaint, First Information Report, Rough Sketch, Mahazar, wound certificates of the accused were produced before the court concerned, the other documents, which influenced the Investigating Officer to arrive at a conclusion that the accused party are the real aggressors, are not made available before the court concerned. One such case is also not revealed from the evidence of the prosecution witnesses or from the manner of investigation held by the Investigating Officer and as spoken by PW.15 and PW.18. 9. In that event, the only logical conclusion that could be arrived at by this Court is that no proper investigation is conducted by the Investigating Officer upon the First Information Report in Crime No.825 of 1997 and the prosecution case pointing at the accused as the real aggressors is based on no material and not supported by any evidence and the investigation and the evidence adduced before this court are totally biased and one sided revealing the manner of the act of assault by the accused and does not establish the circumstances, under which the accused party sustained injuries. As such the failure of the prosecution to explain the injuries sustained by the accused would lead to suppression of true version regarding genesis and the manner of occurrence, and the present case is squarely covered by the observation of the Hon'ble Apex Court and our High Court in the following judgments reported in (a) 2002 Supreme Court Cases (Cri.) 1659 (Subramani and others ..vs.. State of Tamil Nadu); (b) 2008 (2) Supreme Court Cases (Cri.) 727 (Babu Ram and others ..vs.. State of Punjab); and (c) 2009 (3) Crimes 232 (Mad.) (Sulian alias Chinnathambi and another ..vs.. State of Tamil Nadu). 10. The Hon'ble Supreme Court has in the Judgment referred to above under identical circumstances and identical grounds, disbelieved the prosecution version regarding the manner of the occurrence. For better appreciation of legal principles laid down in this regard, paragraph No.18 of the judgment of the Hon'ble Supreme Court in 2008 (2) Supreme Court Cases (Cri.) 727 is reproduced herein:- "18. It is a well settled law 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 references:- https://hcservices.ecourts.gov.in/hcservices/ "1. that the prosecution has suppressed the genesis and the original 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." (See Lakshmi Singh .. vs.. State of Bihar, SCC p.401, para 12). " 11. The Division Bench of our High Court in paragraph 10 of the judgment reported in 2009 (3) Crimes 232 (Mad.) (Sulian alias Chinnathambi and another ..vs.. State of Tamil Nadu), applied the same law. As found in the above case of the Division Bench of our High Court, here also all the eye witnesses examined on the prosecution side are closely related to each other and the accused are also injured, some of the accused sustained simple injuries and other accused sustained both simple and grievous injuries and considering the place at which the injuries sustained, our High Court is of the view that the injuries are not minor or superficial and irrespective of the nature of injuries, by reason of non-explanation of the injuries sustained by the accused and failure of the prosecution to place all the records pertaining to the counter case, the Court is compelled to draw an inference that the prosecution has not presented the true version and the origin of the occurrence is not established and the eye witnesses have also deliberately suppressed the part of the transaction in which the accused are injured and it is very unsafe to convict the accused placing reliance on the evidence of such eye witnesses. As rightly argued by the learned counsel for appellants in both the cases, the examination of only interested witnesses and non-examination of independent witnesses, when admittedly available in the present case, assumes greater importance and prejudice the credibility of the evidence of the prosecution witnesses. 12. The other aspect which fortifies such view is the delay in sending the First Information Reports to the concerned Judicial Magistrate Court. Admittedly, the occurrence took place on 13.10.1997 at 7.00 a.m. and Ex.P30 and Ex.P25 complaints were https://hcservices.ecourts.gov.in/hcservices/ received at 10.30 a.m and 11.00 a.m. Though Ex.P31 and P.26 First Information Reports in Crime Nos.825 and 826 of 1997 were reported to be registered thereafter, they reached the concerned Judicial Magistrate only on 17.10.1997. There is absolutely no explanation either from PW.15 or PW.18 Investigating Officers for such undue delay in sending the First Information Reports to the concerned Judicial Magistrate Court. Time and again, the Hon'ble Apex Court and our High Court and other High Courts have emphasized the requirement of law that the First Information Report should reach the Magistrate concerned without any delay and any unexplained delay that too unreasonable delay in sending the First Information Report to the concerned Judicial Magistrate Court is viewed very seriously, in the judgments reported in (a) 1980 (4) Supreme Court Cases 425 (Marudanal Augusti vs.. State of Kerala); (b) 1996 Supreme Court Cases (Cri.) 1161 (Chhotu and another ..vs.. State of Haryana); (c) 2001 (3) Supreme Court Cases 147 (State of Rajasthan ..vs.. Teja Singh and others); By applying the views of the Apex Court, this Court is of the considered view that the unexplained delay on the part of Investigating Officers in sending the First Information Reports would not rule out the possibility of fabrication of the First Information Reports and the same does not inspire the confidence of this Court as well the genuineness of the prosecution case. 13. However, the trial Court, without duly appreciating and considering the defence raised on the side of the accused and also the failure of the prosecution witnesses to put forth the entire case and the failure of the Investigating Officers to adduce sufficient evidence to substantiate the case charge sheeted against the accused and by over looking the act of commissions and omissions of the Investigating Officers simply believed the prosecution witnesses as spoken by prosecution side interested witnesses and found the accused guilty of the offences as referred to. As rightly argued by the learned counsel for the appellants in both the cases, the prosecution has not established the actual manner of occurrence. Further what is evident from the materials available herein is that material part of the case is totally suppressed by the prosecution side witnesses as such no order of conviction can be safely based upon the evidence available herein and the judgment of conviction and sentence of the trial Court, by extending the benefit of doubt to the accused is hence, liable to be interfered with and set aside. 14. In the result, both the appeals are allowed by setting aside the judgment of conviction and sentence dated 29.07.2004 made in S.C.No.179 of 1999 on the file of the I Additional Sessions Court, Salem and A1 to A10 are acquitted from the charges and the bail bond https://hcservices.ecourts.gov.in/hcservices/ executed by the accused, if any, shall stand cancelled and the fine amount paid, if any, shall be repaid to the accused. Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar mra To 1.The I Additional Sessions Judge, Salem. 2.-do- Through The Principal Sessions Judge, Salem 3.The Judicial Magistrate No.I, Salem 4.-do- Through The Chief Judicial Magistrate, Salem 5.The Superintendent, Central Jail, Coimbatore 6.The Public Prosecutor, High Court, Madras 7. The Inspector of Police,m Salem Steel Plant Police Station, Salem District 1 cc To M/s.K.V.Sridharan, Advocate, SR.76361 1 cc To M/s.S/Rameshkumar, Advocate, SR.76459 Crl.A.Nos.1018 and 1080 of 2004 TEJ(CO) RH (21.2.12) https://hcservices.ecourts.gov.in/hcservices/