Bail Slip The Appellants/ Accused 1 and 2 viz 1. Kalyanam @ Kalyanaraman 2. Chandrasekaran, were directed to be released on bail in and by order of this Court dated 19.4.2007 in Crl.M.P.NO.1 /07 in Crl.A.392/07. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 23..03..2010 CORAM THE HONOURABLE MR. JUSTICE S.NAGAMUTHU Crl. Appeal No.392 of 2007 1)Kalyanam @ Kalyanaraman 2)Chandrasekaran ... Appellants/A1 & A2 Vs. State Rep.by The Inspector of Police, Annamalai Nagar Police Station, Cuddalore District. (Crime No.200 of 2005 of Killai Police Station) ... Respondent/Complainant Memorandum of Grounds of Criminal Appeal under Section 374 (2) of the Criminal Procedure Code against the judgement dated 17.04.2007 passed by the learned Principal Sessions Judge, Cuddalore Sessions Division, Cuddalore in S.C.No.123 of 2006. For Appellant : Mr.K.V.Sridharan For Respondent : Mr.R.Muniyapparaj, Government Advocate (Criminal Side) JUDGEMENT Appellants are A1 and A2. They were facing trial in S.C.No.123 of 2006 on the file of the learned Principal Sessions Judge, Cuddalore. By judgement dated 17.04.2007, the learned Sessions Judge convicted A1 for offences under Section 324 of IPC (Two Counts) and under Section 304(ii) of IPC and A2 for offence under Section 324 of IPC alone. The leaned Judge sentenced A1 to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,000/- in default to undergo rigorous https://hcservices.ecourts.gov.in/hcservices/ imprisonment for three months each for offence under Section 324 of IPC (Two counts) and to undergo rigorous imprisonment for five years and to pay a fine of Rs.5,000/- in default to undergo rigorous imprisonment for one year for offence under Section 304 (ii) of IPC; and sentenced A2 to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,000/- in default to undergo rigorous imprisonment for three months for offence under Section 324 of IPC. Challenging the conviction and sentence both A1 and A2 have come forward with this appeal. Originally, there were four accused facing prosecution. A3 & A4 were acquitted by the said judgement and the same has become final. 2. The case of the prosecution in brief is as follows: P.W.2 is the daughter of the deceased – Dharmalingam. P.W.1 is the grand daughter of the deceased and the daughter of P.W.2. P.W.9 is yet another daughter of the deceased. P.W.13 is the husband of P.W.2. They were residing at South Street, Nakravanthankudi Village, Cuddalore District. A1 is the brother of P.W.13. A2 and A3 are the sons and A4 is the wife of A1. They were also residing in the same village. Between these two families there was a dispute in respect of ownership of a property measuring 7 ½ cents, which is situated near the house of A1. A1 started constructing a house on the same. P.Ws 1 and 2 and the deceased attempted to prevent him from further constructing the house. There was a quarrel over the same. A1 came with an offer that he would give money in respect of the land to the family of the deceased at the time of marriage of P.W.1. P.Ws.1 and 2 and the deceased did not agree for the same. On 05.09.2005, P.Ws.1 and 2 and the deceased had gone to the Office of the Tahsildar to get some documents in respect of the said property. At about 6.00 p.m. they returned to the village. At that time, A4, who was standing near their house armed with broomstick, on seeing P.Ws.1 and 2 and the deceased started scolding them in filthy language. A1 was found armed with a knife. A2 and A3 were armed with cricket bats. These three accused also scolded the deceased and P.Ws.1 and 2. P.W.1 and the others questioned the same. At that time, A4 told them that it was only the deceased who was doing all mischief regarding the property. When the quarrel was going on, A1 suddenly cut the deceased on his head with knife. The deceased warded off the same with his hands. He, therefore, sustained injuries both on his head as well as hands. P.W.2 attempted to rescue the deceased. Immediately, A1 cut P.W.2 also on her head with knife. At that juncture, P.W.1 intervened. She was also not spared. A1 cut P.W.1 on her head with knife. A2 attacked P.W.2 with cricket bat on her hands and head. By the time, the deceased had fallen. Slowly, he tried to get up, but, A3 attacked him with cricket bat repeatedly on his head. The occurrence was witnessed by one Vaithiyanathan and Ramamani of the same street . They rushed to the spot, prevented the accused from mounting further attack. The deceased fainted. Thereafter, all the four accused escaped from the scene of occurrence with weapons. Then , P.Ws.1 and 2 and the deceased https://hcservices.ecourts.gov.in/hcservices/ went to the hospital and got admitted. 3. On 05.09.2005, at about 07.50 p.m. P.W.21 Dr.Lakshmi admitted the deceased at Government Hospital, Chidambaram. She found as many as five lacerated injuries on the deceased as hereunder: 1. A laceration on the left arm of 2 x 1 c.m. with bleeding 2. A laceration over right parietal region 6 x 2 c.m. with bleeding 3. A laceration on right middle finger 2 x 1 c.m. with bleeding 4. A laceration on right ring finger 3 x 2 c.m. with bleeding 5. A laceration on left parietal region 4 x 2 c.m. Ex.P.2 is the Accident Register. P.W.1 was also admitted by the same Doctor as in patient. She found a laceration measuring 6 x 3 c.m. on the middle of frontal region with bleeding. Ex.P.13 is the Accident Register. P.W.2 was also admitted at 8.00 p.m. by the same Doctor. She noticed two injuries on P.W.2 namely, (1) a laceration measuring 8 x 3 c.m. over the right parietal region with bleeding and (2) a contusion over the right arm measuring 2 x 3 c.m. All the three injured told the Doctor that they were attacked by four known persons. 4. While P.Ws.1 and 2 and the deceased were in the hospital, P.W.28, on intimation, proceeded to the hospital. At about 3.30 p.m. he recorded the statement of P.W.1 under Ex.P.1. Then on returning to the police station, at 3.30 p.m., he registered a case in Cr.No.200 of 2005 under Section 294, 324, 323 and 506 (ii) of IPC. Ex.P.13 is the FIR. Then, he proceeded to the place of occurrence at 5.30 p.m. and prepared Observation Mahazar-Ex.P.19 and Rough Sketch-Ex.P.20 in the presence of witnesses. He examined P.Ws.3 to 8 and recorded their statements. He also examined P.Ws.1 and 2, who were in the hospital undergoing treatment and recorded their statements. When he went to the hospital to examine the deceased, he was unconscious and therefore, no statement could be recorded from him. 5. Since the condition of the deceased was deteriorating, on 06.09.2005, he was shifted to Raja Muthiah Medical College Hospital, Annamalai Nagar. P.W.22 Doctor Ramasubramaniam, who was working as Chief Medical Officer in the said Hospital admitted him at 3.45 p.m. Doctors namely, P.Ws.22, 23 and 24 treated him at the hospital. https://hcservices.ecourts.gov.in/hcservices/ 6. Coming back to the investigation, P.W.28 arrested A1 and A2 at 06.00 a.m. on 12.09.2005 and returned to the police station with them. Then, he forwarded the accused to the jurisdictional Magistrate for judicial remand. 7. On 20.09.2005, the deceased who was taking treatment at Raja Muthiah Medical College Hospital, Annamalai Nagar died. P.W.24 Doctor, who treated the deceased gave intimation regarding the death of the deceased. On receipt of such information, P.W.28 altered the offences adding the offence under Section 302 of IPC. Ex.P.21 is the alteration report. Thereafter, he handed over the investigation to P.W.29, the Inspector of Police. 8. Taking up the case for investigation, on 20.09.2005 P.W.29 held inquest on the body of the deceased between 12.00 noon and 3.30 p.m. Ex.P.22 is the Inquest Report. During inquest, he examined many witnesses including P.Ws.1 and 2. Thereafter, he forwarded the body of the deceased for post- mortem through P.W.27. 9. P.W.25 was the then Assistant Surgeon at Government Hospital, Chidambaram. He conducted autopsy on the body of the deceased and found the following injuries: 1. A almost healed sutured wound over right parietal region of 6 c.m. and the sutures was not removed. 2. A healed scare about 4 c.m. over the left parietal region. 3. A healed scar about 2 c.m. over the left arm 4. A partially healed wound about 2 c.m. over the right middle finger 5. A partially healed wound about 2 c.m. in right ring finger 6. Bed sore over sacral region. He also found intra cerebral haemorrhage over both left and right parietal region. According to him, the deceased would have died at about 5.50 hours on 20.09.2005. He opined that that the deceased would have died of head injury with intra cerebral haemorrhage with cardio respiratory arrest. Ex.P,.17 is the post-mortem certificate. 10. On completing the investigation, P.W.29, the Inspector of Police laid the final report against the appellants and two others. 11. Having considered the above materials, the trial Court https://hcservices.ecourts.gov.in/hcservices/ framed charges Us/. 294(a) r/w 34 of IPC; U/s.302 r/w 34 of IPC; U/s.324 ( Two counts) r/w 34 of IPC; U/s.324 r/w 34 of IPC and U/s.506(ii) of IPC against the appellants and two others. Since the accused denied the charges, they were put on trial. As many as 29 witnesses were examined on the side of the prosecution and 26 documents were marked. Besides, 3 material objects were produced. When the incriminating materials were put to the accused, they denied the same. But, they did not choose to examine any witness on their side. Having considered all the above materials, the trial Court acquitted A3 and A4, however, convicted A1 and A2 as stated in the 1st paragraph of this judgement. It is against the same, the Appellants/A1 & A2 are before this Court with this appeal. 12. Insofar as the evidence available on record is concerned, P.Ws.1 and 2 are injured eye witnesses, who have spoken to about the alleged attack made on them by these accused as well as on the deceased. P.W.9 is yet another daughter of the deceased, who has spoken to only about the dispute regarding the land. She is not an eye-witness. P.W.13 is the husband of P.W.2 and he is also not an eye-witness. He has also spoken to about the motive and the other facts. P.W.10 is a witnesses to the observation mahazar and rough sketch. P.W.15 is a relative, who is also not an eye-witness. The other witnesses namely, P.Ws.3 to 8, 11, 12, 14, 16 to 19 have turned hostile and they have not supported the case of the prosecution in any manner. P.W.21 Doctor has spoken to about the admission of the deceased at Government Hospital, Chidambaram as in patient and shifting of the said patient. P.Ws.22, 23 and 24 have spoken to about the treatment given at Rajamuthiah Medical College Hospital, Annamalai Nagar for the deceased. P.W.25 has spoken to about the post-mortem conducted by him and the opinion regarding the cause of death. P.W.28 has spoken to about the registration of the FIR and the preliminary investigation done by him prior to the death of the deceased. P.W.29 has spoken to about the investigation done by him, the arrest of the accused and laying of the charge sheet. 13. In this appeal, the learned counsel for the appellants would submit that there is enormous delay in preferring the complaint to the police and further there is enormous delay in forwarding the FIR to the Court. The delay both in preferring the complaint as well as forwarding the FIR to the Court have not been explained away. This, according to the learned counsel, creates enormous doubt in the case of the prosecution. He would further submit that P.Ws.1, 2 and 13 have categorically stated that even on 06.09.2005, P.Ws.1 and 2 had gone to the police station, where a complaint was drafted by P.W.1 and the same was given to the police. The learned counsel would, therefore, submit that the said complaint being the earliest one has been suppressed. In this background, the delay assumes much importance inasmuch as there are more than one accused. And https://hcservices.ecourts.gov.in/hcservices/ when two accused have been acquitted by the trial court partly disbelieving the evidences of P.Ws.1 and 2, the trial court ought not to have convicted the appellants alone believing the evidences of P.Ws.1 and 2 though they are injured eye witnesses, it is contended by the learned counsel. 14. The learned counsel would further submit that the medical evidence also does not corroborate. According to him, though the death was due to cerebral haemorrhage, P.W.25 Doctor, who conducted autopsy on the body of the deceased, has not opined as to whether the cerebral haemorrhage was in any manner connected to the injuries sustained by the deceased. The learned counsel would point out that though the occurrence was on 05.09.2005, the deceased died only on 20.09.2005. At the time of his death, he was aged 75 years. He would, therefore, submit that the cerebral haemorrhage would have been due to some other natural causes. The learned counsel would rely on certain admissions made by the Doctor - P.W.25. The learned counsel would also point out certain material contradictions in respect of the overt acts between the evidences of P.W.1 and P.W.2 and say that these contradictions are material, which would go to the very root of the case of the prosecution. Therefore, according to him, the trial Court was not right in convicting the Appellants/A1 and A2 alone. 15. The learned Government Advocate (Criminal Side) would, however, stoutly oppose this appeal. He would submit that the delay itself cannot be a ground to doubt the case of the prosecution in all circumstances. In this case, there was some delay in preferring the complaint. Inasmuch as the deceased was in serious condition at the hospital and undergoing treatment and that P.Ws.1 and 2 were also in the hospital undergoing treatment, no importance could be given for the delay in this case. He would further submit that the evidences of P.Ws.1 and 2 are very cogent and convincing and nothing has been elicited during cross examination to discard their evidences. He would add that the medical evidences as spoken to by P.Ws.21 to 25 would clearly corroborate the evidences of P.Ws.1 and 2. He would further add that the medical evidence spoken to by P.W.25 would clearly establish that the death was due to cerebral haemorrhage and that such cerebral haemorrhage was only due to the injuries sustained at the hands of the accused party. Therefore, he would pray for dismissal of the appeal. 16. I have considered the rival submissions and also perused the records carefully. 17. It is too well settled in a catena of decisions of the Hon'ble Supreme Court that there should not be any delay in preferring complaint to the police and also in forwarding the same to the court. It is also well settled that a mere delay itself cannot be a ground to disbelieve the entire case of the https://hcservices.ecourts.gov.in/hcservices/ prosecution. It is only in such of those cases where the delay is enormous and the same remains unexplained and that there are also circumstances to suspect the genuineness of the contents of the FIR, the Court can doubt the case of the prosecution and then discard the case of the prosecution. As rightly pointed out by the learned counsel for the appellants, in a number of cases, the Courts have discarded the evidences of eye-witnesses though they are injured witnesses, when there is a doubt regarding the very origin of the FIR. 18. Applying the said settled principles to the facts of the case, let me, now, analyse the delay as pointed out by the learned counsel for the appellants. The occurrence was at 6.00 p.m. on 05.09.2005 as it is stated by P.W.1. Immediately after the occurrence, they had gone to the Government Hospital at Chidambaram. P.Ws.1 and 2 told the Doctor that they were attacked by four known persons. It is the evidence of P.Ws.1 and 2 that on the next day i.e. on 06.09.2005 at about 8.00 a.m. both of them went to the police station, where a complaint was drafted by P.W.1 and the same was handed over to the police. During cross examination, both P.Ws.1 and 2 have categorically admitted that such a complaint was, in fact, given to the police. P.W.13 is the husband of P.W.2. During cross examination, he has admitted that on 06.09.2005 when he went to the hospital, he enquired P.Ws.1 and 2 as to whether complaint had already been given, he was told by P.W.1 that complaint had already been given in the morning at 8.00 a.m. itself. He would explain that because of that reason, he did not chose to go to the police to give any complaint. Therefore, there is a positive evidence from P.Ws.1, 2 and 13 that at the police station on 06.09.2005 at 8.00 a.m. itself a written complaint narrating the entire events was preferred. These witnesses have not been treated as hostile. But, the learned Government Advocate (Criminal Side) is not in a position to explain to the court as to what happened to the said earliest information. This creates an initial doubt in the case of the prosecution. But, according to P.W.28, a complaint was preferred by P.W.1 only at 3.30 p.m. on 07.09.2005 and thereafter the case was immediately registered. Why there was so much of delay for about 2 days in giving the first information has not been explained away. The said FIR has reached the court only on 12.09.2005 at 11.30 a.m. Both the police station as well as the court are situated in the same town. Thus, the delay in preferring the complaint and the delay in forwarding the same to the Court, in the background of the fact that P.Ws.1, 2 and 13 have stated that the earliest complaint was given at the police station on 06.09.2005 at 8.00 a.m., would go to clearly establish that the earliest information available with the police as deposed to by P.Ws.1, 2 and 13 has been suppressed. Ex.P.1 has come into existence only after deliberation. Therefore, no weightage could be given to Ex.P.1. If once, the FIR is doubted, then, the very foundation of the case of the https://hcservices.ecourts.gov.in/hcservices/ prosecution becomes shaky. When there are more than one accused and when the FIR is doubtful, then, the entire case of the prosecution needs to be doubted and unless such doubt is cleared off by the prosecution, the benefit arising out of such doubt should go in favour of the accused. In this case, as I have already stated, since the FIR, which is the foundation for the entire case, is highly doubtful, no reliance can be made on the case of the prosecution. 19. Now coming to the medical evidence, insofar as the injuries found on the deceased are concerned as spoken to by P.W.21, there were five lacerated injuries found. According to P.W.21, all these five injuries could have been caused by a weapon like, M.O.1 Knife. But, the evidence of P.W.1 is that A3 also attacked the deceased repeatedly with cricket bat on his head. It is common knowledge that cricket bat is a heavy object. If repeated attacks would have really been made by A4 , certainly, the same would have resulted in injuries. Absolutely, I do not find any injury correspondingly on the head of the deceased. Similarly, on P.W.1 there was only one lacerated wound. P.W.1 has stated that he was cut with knife. But, the injury is a lacerated wound. It has not been explained by the Doctor that this injury would have been caused by cutting with weapon like M.O.1 Knife. Though, the evidence of P.W.21 does not contradict the evidence of P.W.1 in this regard, some more clarifications could have been asked from P.W.21 regarding the possibility of the injury having been caused by cutting with a knife. Though, it is stated by the witness that P.W.2 was attacked with cricket bat repeatedly by A2, P.W.21-Doctor has found only one contusion on the right arm. When a woman is attacked repeatedly with a cricket bat, one would expect more than one injury. But, no such injuries were found on P.W.2. This also creates doubt in the veracity of the evidence of P.Ws.1 and 2. The other injury is a lacerated injury, which is said to have been caused by A1. 20. Now coming to the evidence adduced by P.W.25 Doctor, who has conducted autopsy on the body of the deceased, he opined that the death was due to cerebral haemorrhage with cardio respiratory arrest. During cross examination, he has stated that there were no corresponding external injuries in the membranes. He did not also notice any cerebral injuries. But, how the cerebral haemorrhage has occurred has not been clearly explained. Absolutely, there is no evidence that the cerebral haemorrhage noticed by him, which was the cause for the death, was in any manner connected to the injuries said to have been caused by this accused. The Doctor has opined that in old age even due to natural causes one may suffer from cerebral haemorrhage, which may be fatal. In this case, the deceased was 75 years old and therefore, cerebral haemorrhage would have happened due to such old age. Such possibility has also not been ruled out. Thus, the medical evidence also does not fully https://hcservices.ecourts.gov.in/hcservices/ support the case of the prosecution. 21. Though the concept Falsus in uno falsus in omnibus, is not in general followed by the Indian Courts, in a case where the truth and falsity are inseparably mixed with each other, that is to say, to put it otherwise, where the grains and the chaff cannot be separated, the court is left with no option except to disbelieve the evidence of a witness in toto and to give the benefit of doubt in favour of the accused. In this case, the evidences of P.Ws.1 and 2 have been disbelieved insofar as A3 and A4 are concerned. Therefore, P.Ws.1 and 2 are not fully believable. Instead, even according to the trial Court, they are only partly believable. As per the law laid down by the Hon'ble Supreme Court [vide Lakhwinder Singh and others v. State of Punjab, 2003 CRI. L.J. 3058], in a case where the witnesses are partly believable and partly unbelievable, in the absence of corroboration, as a rule of prudence, it is not safe to base conviction on the uncorroborated testimonies of such witnesses. In this case, P.Ws.1 and 2 have rendered themselves unbelievable in part insofar as A3 and A4 are concerned as held by the trial court. There is no other corroboration from any other source. The medical evidence also does not support the case propounded by P.Ws.1 and 2. Above all, as I have already stated, the very foundation of the prosecution case namely, the FIR is highly doubtful. For all these reasons, though P.Ws.1 & 2 are injured eye-witnesses, this Court is constrained to acquit A1 and A2 as it would not be safe to convict them solely on the basis of the evidences of P.Ws.1 and 2 alone. The impugned judgement would go to show that the trial Court has failed to consider all the above aspects. Therefore, the judgement of the trial court needs interference at the hands of this court. 22. In the result, the appeal is allowed; the conviction and sentence imposed on the Appellants/A1 & A2 by judgement dated 17.04.2007 in S.C.No.123 of 2006 on the file of the learned Principal Sessions Judge, Cuddalore Sessions Division, Cuddalore is set aside; and the Appellants/A1 & A2 are acquitted. Fine, if any, paid by the appellants shall be refunded to them. The bail bonds executed by the appellants shall stand cancelled. Sd/- Asst.Registrar.