Bail Slip Crl.A.No.1127 of 2004: The Appellant/ Accused Viz., Ramalingam was directed to be released on bail as per the order of this court dated 23.3.2005 and made in Crl.M.P.No.2436/2005 in Crl.A.No.237/05. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 27.06.2011 C O R A M THE HONOURABLE MR.JUSTICE S. NAGAMUTHU Criminal Appeal No.1127 of 2004 Ramalingam ... Appellant/ Accused Vs The State of Tamilnadu rep. by the Inspector of Police, Villupuram Taluk Police Station, Cr.No.43/2001 Villupuram District. ... Respondent / Complainant Criminal Appeal is filed under Section 374 of Cr.P.C. against the judgment of the learned Principal Sessions Judge, Villupuram in S.C.No.146/2001 dated 29.7.2004. For Appellant : Mr.M.Devaraj For respondent : Mr.A.N.Thambidurai, Additional Public Prosecutor J U D G M E N T The appellant is the sole accused in S.C.No.146/2001 on the file of the learned Principal Sessions Judge, Villupuram. He stood charged for offence under Section 302 of IPC. However, the trial court convicted him only under Section 304 Part II of IPC and sentenced him to undergo rigourous imprisonment for 4 years. Challenging the said conviction and sentence, the appellant/accused is before this Court with this appeal. 2. The case of the prosecution in brief is as follows: P.W.1 and the accused are brothers. P.W.2 is their mother and https://hcservices.ecourts.gov.in/hcservices/ the deceased was their father. There was some dispute among P.Ws.1 and 2 and the deceased in respect of sharing of the joint family property. On 14.1.2001 at about 9.30 a.m., the deceased was sitting in front of his house. The accused came to the spot and developed quarrel with the deceased, questioning him in respect of the correctness of the partition of the properties done by him. In the said quarrel, it is stated that the accused took a stone lying elsewhere near the scene of occurrence and attacked the deceased on his head. P.W.1 and P.W.3 quickly intervened. The accused fled away from the scene of occurrence. Immediately, he was taken to the Government Hospital at Villupuram. 3. P.W.5 examined him at 11.50 a.m. He noticed a lacerated injury measuring 4 x ½ x ½ cms. on the middle of the head of the deceased. There was profuse bleeding from the injury. The attenders told the Doctor that they would take him to Chennai for better treatment. Even before arrangements could be made for the same, the deceased succumbed to the injuries. Ex.P.2 is the Accident Register issued by P.W.5. According to him, the said injury on the deceased could have been caused by a stone like M.O.1. On intimation from the hospital, P.W.1, the then Sub- Inspector of Police attached to Villupuram Taluk Police Station, went to the hospital and recorded the statement of P.W.1 at 1.45 p.m. On returning to the police station, he registered a case in Crime No.43/2001 under Section 302 of IPC. Ex.P.16 is the First Information Report. He forwarded the First Information Report and the complaint to court and then proceeded to the place of occurrence and prepared an Observation Mahazar and a Rough Sketch showing the place of occurrence in the presence of two witnesses. He recovered the blood stained stone M.O.1 used by the accused to attack the deceased from the place of occurrence. Then, he conducted inquest on the body of the deceased between 2.00 p.m. to 5.00 p.m. on the same day. During the same, he examined P.Ws.1 to 4 who are the eye-witnesses to the occurrence and few more witnesses. Then, he forwarded the body for postmortem. 4. P.W.6 Doctor Venkateswaran conducted autopsy on the body of the deceased on 15.1.2001 at 10.00 a.m. He found a sutured wound vertically on the left parietal region close to midline measuring 10 cms. length. On removing the sutures, he found a wound measuring 8 cm. X 1 cm. X bone deep. There was clotted blood noticed in the subcutaneous tissue of left termporal region of scalp. There was also a transverse fracture measuring 10 cm. X 1 cm. extending from right parietal bone to left parietal bone. The temporal bone on the left hand side was also found fractured. He opined that the deceased died due to shock and head injury. https://hcservices.ecourts.gov.in/hcservices/ 5. Continuing the investigation, P.W.12 recovered the blood stained clothe from the body of the deceased and forwarded the same along with the stone for chemical examination through court. The report revealed that there was blood stains on the clothe but there was no blood found on the stone. Then, he examined the Doctors, collected the medical records and after completing the investigation, laid charge sheet against the accused. 6. Based on the above materials, the trial court framed charge under Section 302 of IPC against the accused. The accused denied the same. So, he was put on trial. 7. During the course of trial, on the side of the prosecution, as many as 12 witnesses were examined and 18 documents were marked besides 4 Material Objects. P.Ws.1 to 4 are the eye- witnesses to the occurrence. They have vividly spoken to about the attack made on the deceased with stone by the accused. P.Ws.5 and 6 Doctors have spoken to about the injuries on the deceased. P.W.8 is the photographer who took photographs on the dead body of the deceased on the request made by the Inspector of Police. P.W.10 is the Head Clerk of the Magistrate Court. He has spoken to about the receipt of the chemical analysis report. The others are police officials. 8. When the incriminating materials were put to the accused under Section 313 of Cr.P.C., he denied the same. His defence was that he was attacked in the very same occurrence by the prosecution party in which he sustained number of serious injuries. He also went to the hospital immediately where a complaint was obtained from him by the police. Thereafter, a case was registered, but the same was not investigated into properly. According to him, the prosecution party were the aggressors and he is innocent. In so far as the injury sustained by the deceased is concerned, after attacking the accused, while running from the scene of occurrence, the deceased fell down and sustained injury. Having considered the above, the trial court rejected the defence of the accused and found him responsible for the injury sustained by the deceased on his head. The trial court ultimately found him guilty under Section 304 Part II of IPC and convicted him accordingly. That is how, the appellant/accused is before this Court with this appeal. 9. I have heard Mr.M.Devaraj, learned Counsel for the appellant and Mr.A.N.Thambidurai, learned Additional Public Prosecutor and also perused the records carefully. 10. The foremost contention of the learned Counsel for the appellant is that the prosecution has not come forward with clean hands inasmuch as the injuries sustained by the accused have not https://hcservices.ecourts.gov.in/hcservices/ been explained away and the counter case registered on the complaint of the accused has not been investigated into properly and the materials collected through the so called investigation done on the counter case have not been placed before the Court. He would further submit that the deceased and his party were the aggressors and the accused is an innocent person and therefore, he is entitled for acquittal. 11. But the learned Additional Public Prosecutor would stoutly oppose this appeal. According to him, of course, it is true that the accused also sustained injuries in the same occurrence and on his complaint regarding the same, a case was registered in Crime No.44/2001 against P.Ws.1 to 3 and the deceased. However, on completing the investigation, the case was referred to as 'mistake of fact' and as a matter of fact, a notice was also served on the accused in this regard. Thus, according to the learned Additional Public Prosecutor, the prosecution has not suppressed any material. He would further submit that the injuries on the accused are simple in nature and therefore, non-explanation of the injuries on the accused cannot be a ground to acquit the accused. 12. I have considered the above submissions very carefully. 13. From the evidence of P.W.5, it could be seen that the accused had sustained the following injuries in the very same occurrence : 1. A lacerated wound measuring 3x2x1/2 cms. on the occipital region of the head; blood was profusely bleeding from the said injury; 2. A lacerated injury measuring 4x1x1/2 cms. on the left parietal region just above the left ear; blood was found bleeding from the said injury also; 3. The left earlobe was found lacerated and an injury measuring 3 x ½ cms. was found; there was bleeding also; and 4. Blood was found bleeding through the left ear. He was admitted in the hospital as inpatient. Ex.D.1 is the Accident Register pertaining to him. According to P.W.5 Doctor Backiyamari, these injuries would have been caused by stones. 14. But strangely, none of the eye-witnesses, namely, P.Ws.1 to 4 have stated anything about these injuries sustained by the accused. There has been no explanation offered by the so called eye-witnesses in respect of these injuries. It is not as though these injuries are very minor in nature which could not have been noticed by the eye-witnesses. The description of the injuries in the Accident Register would go a long way to show that these https://hcservices.ecourts.gov.in/hcservices/ injuries, though simple, were all lacerated wounds through which there was profuse bleeding. Therefore, P.Ws.1 to 4 would have certainly noticed these injuries and that be so, it is their bounden duty to explain the injuries to the court so as to be fair to the court. This, they have not done. They have not come forward with clean hands. In my considered opinion, they have completely suppressed the injuries sustained by the accused and the manner in which he sustained the injuries. This creates enormous doubt in the credibility in the evidences of P.Ws.1 to 4. 15. Now, coming to the evidence of P.W.12, the Investigating Officer, he would admit that in respect of the injuries sustained by the accused, a case in Crime No.44/2001 was registered against P.Ws.1 to 3 and the deceased. But, he has not produced the records, such as, the complaint, the First Information Report, the Wound Certificate of the accused and the other records collected during investigation in Crime No.44/2001 along with the present case. In chief examination, P.W.12 had completely suppressed the registration of the case in Crime No.44/2001. It was only during cross-examination, the above facts were brought on record by the defence. Similarly, the accident register of the accused was also not produced along with the final report by the Investigating Officer. P.W.5 Doctor was also not called upon to speak about the injuries sustained by the accused in the chief examination. It was only during the cross-examination, the defence has brought on record the accident register of the accused and has also called upon the doctor to speak about the injuries, nature of injuries and the manner in which the injuries could have been sustained. This shows the basic attitude of the prosecution inasmuch as the prosecution has not cared to come forward with the true version of the occurrence. The prosecution has wantonly suppressed the counter case and all the other materials as I have already stated. 16. Apart from that, during cross-examination, P.W.12 has simply stated that he referred the case in crime No.44/2001 as 'mistake of fact'. He has not given any reason as to why he referred the same as 'mistake of fact'. He has not even produced the notice served on the accused/appellant. The materials collected during the course of investigation of the counter case have been produced before this Court. It is for this Court to adjudicate upon as to which version, namely, whether the version projected by the prosecution or that of the accused is true. But, in this case, the prosecution has miserably failed to place all the materials before the court and so this Court is not in a position to adjudicate upon as to who are the aggressors in this case. 17. In view of all the foregoing reasons, I have no hesitation https://hcservices.ecourts.gov.in/hcservices/ to hold that the prosecution has not come forward with clean hands and the same has not come forward with the true version of the occurrence. Every attempt has been made to suppress the counter case and the material collected during the investigation of the same. Therefore, in my considered opinion, the conviction of the accused cannot be sustained. 18. In the result, the appeal is allowed; the conviction and sentence imposed on the appellant by the trial court are set aside and he is acquitted. The bail bond, if any, executed shall stand discharged. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. tsi To 1. The Principal Sessions Judge, Vellore 2. The Inspector of Police Villupuram Taluk Police Station, Villupuram District 3. The Judicial Magistrate No.1, Villupuram 4. Do thro the Chief Judicial Magistrate Villupuram 5. The Superintendent Central Prison, Cuddalore 6. The Public Prosecutor High Court, Madras 1 cc to Mr.M. Devaraj, Advocate, Sr. 37097 Crl.A.No.1127 of 2004 NG (CO) kk 27/7 https://hcservices.ecourts.gov.in/hcservices/