BAIL SLIP CRL.A.NO.198/2003 The Appellants/Accused viz., 1.Kannan @ Neelamegam, 2. Sekar, 3. Ganapathy, were directed to be released on bail in and by order of this court dated 4.2.03 made in Crl.M.P.No.1103/2003. IN THE HIGH COURT OF JUDICATUE AT MADRAS DATED: 28.1.2010 CORAM: THE HONOURABLE MS.JUSTICE R.MALA Crl.A.No.198 of 2003 1. Kannan @ Neelamegam 2. Sekar 3. Ganapathy .. Appellants/Accused Vs. State by The Inspector of Police, Mangalamedu Police Station, Cr.No.221/2001. .. Respondent/ Complainant Criminal Appeal against the judgment, dated 7.1.2003 in S.C.No.67 of 2002 on the file of the Principal District and Sessions Court, Perambalur. For appellants : Mr.A.G.Rajan For respondent : Mr.I.Paul Noble Devakumar, Govt. Advocate (Crl. Side) JUDGMENT The Criminal Appeal arises out of the judgment of conviction and sentence imposed on the appellants-A.1 to A.3 in S.C.No.67 of 2002, dated 7.1.2003 on the file of the Principal District and Sessions Court, Perambalur. The first appellant/A.1 was convicted for the offence under Section 324 IPC and sentenced to undergo two years' rigorous imprisonment and the second and third appellants/A.2 and A.3 were convicted for the offence under Section 324 read with 34 IPC and each sentenced to undergo two years' rigorous imprisonment. https://hcservices.ecourts.gov.in/hcservices/ 2. The case of the prosecution is as follows: (a) On 18.11.2001 at about 7.30 a.m., since there was heavy rain, P.W.1 Rajendran and his father P.W.2 requested the accused to remove the drainage channel bund and at that point of time, the accused them in filthy language. A.1 assaulted P.W.1 on his head with wooden handle of the spade. (b) P.W.1 gave Ex.P-1 complaint. P.W.3 Ravi took P.W.1 to Perambalur Government Hospital, where P.W.7 Dr.Rajasekaran treated him and gave Ex.P-5 accident register, in which the following injuries were indicated: "Laceration 5 x 1/2 x bone deep Rt.Frontal area unconscious, pulse 80 mt CVS S1, S2 heard RS NVBS" (c) P.W.1 was subsequently treated at Sea Horse hospital, where Ex.P-6 wound certificate was issued, in which the following injuries were indicated: "Sutured wound in scalp 3 cm (sutured in Trichy G.H). CT Brain: (opinion by Dr.Arumuga Mani) Middle compound depressed fracture--frontal." (d) P.W.8 Balaguru, Sub-Inspector of Police, received Ex.P-1 complaint and registered a case in Cr.No.221 of 2001 for the offences under Sections 294(b) and 307 IPC and prepared Ex.P-7 F.I.R. (e) P.W.9 Inspector of Police took up the matter for investigation and went to the place of occurrence. He examined the witnesses and prepared Ex.P-2 observation mahazar in the presence of witnesses. He also prepared Ex.P-8 rough sketch. (f) On 19.11.2001 at V.Kalathur Bus Stand, P.W.9 Inspector of Police arrested the accused. At that time, A.1 gave a confession and the admitted portion of the same is marked as Ex.P-3. In pursuance of the same, A.1 handed over M.O.1 spade, which was seized under Ex.P-4 seizure mahazar. (g) After completing the investigation, P.W.9 filed charge sheet against the appellants-A.1 to A.3 for the offences under Sections 294 (b), 326 and 307 read with 34 IPC. 3. The trial Court framed necessary charges against the accused. The accused pleaded not guilty. Before the trial Court, during the course of trial, P.Ws.1 to 9 were examined, Exs.P-1 to P-8 were marked and M.O.1 was produced. When the appellants-accused were questioned under Section 313 Cr.P.C., they denied in toto. 4. The trial Court, after analysing the oral and documentary evidence, convicted and sentenced the appellants/A.1 to A.3 as indicated above. The appellants were acquitted of the charges under Sections 294(b), 326 and 307 read with 34 IPC. https://hcservices.ecourts.gov.in/hcservices/ 5. Challenging the said conviction and sentence passed by the trial Court, learned counsel for the appellants/A.1 to A.3 would raise three points: (i) The earliest complaint given by P.W.1, which was corroborated by the evidence of P.Ws.1 to 4, was suppressed. (ii) There is contradiction between the medical and ocular evidence. (iii) The other Doctors who treated P.W.1 was not examined before Court. Hence, he prayed for acquittal of the appellants/A.1 to A.3. 6. Per contra, learned Government Advocate (Criminal Side) submitted that there is only one complaint, which was recorded by P.W.8 Sub-Inspector of Police and he has deposed that after information, he went to Sea Horse Hospital and recorded Ex.P-1 complaint and in pursuance of the same, he registered a case and prepared Ex.P-7 F.I.R. So, there is no suppression of the first complaint. Learned Government Advocate relied upon the decision of the Supreme Court reported in 2002 SCC (Cri) 1337 (Pothakamuri Srinivasulu Vs. State of A.P.) and the decision of the Calcutta High Court reported in 2000 Cri.L.J. 1241 (Ranjit Das Vs. State of W.B.). Learned Government Advocate further submitted that there is no contradiction between ocular and medical evidence. Even though charge has been levelled against the accused for the offence under Section 326 IPC, the Doctor who gave treatment has not been examined before the trial Court and hence, the appellants were found guilty of the offence under Section 324 IPC and so, the learned Government Advocate prayed for dismissal of the Criminal Appeal and confirmation of the conviction and sentence imposed by the trial Court. 7. The first limb of argument advanced by learned counsel for the appellants-A.1 to A.3 is that the earliest complaint given by P.W.1 has been suppressed by the prosecution, which is fatal to the case of the prosecution. Learned counsel for the appellants relied upon the evidence of P.Ws.1 to 4. 8. It is well settled principle of law that the evidence of single injured eye-witness is admissible. P.W.1 is the injured witness. P.W.1 in his evidence has stated in his chief examination itself that he went to Police Station and gave a complaint before Police. The signature contained in Ex.P-1 complaint is his signature. P.W.1, in his evidence, in chief examination, has stated as follows: @///// g[fhh; ehd; jhd; fhty; epiyaj;jpy; bfhLj;njd;/ g[fhhpy; cs;s ifbaGj;J vd;DilaJ jhd;/ g[fhh; ehd; brhy;y fhty; epiyaj;jpy; vGjp goj;J fhz;gpj;J ehd; ifbaGj;J nghl;nld;/ me;j g[fhh; m/j/rh/M/1 MFk;/ ////@ 9. P.W.2, the father of P.W.1, in his chief examination, has stated as follows: https://hcservices.ecourts.gov.in/hcservices/ @////// m.rh/1?f;F epidt[ te;jJ/ gpwF tp/fsj;J}h; fhty; epiyk; brd;W g[fhh; bfhLj;jhh;/ nghyPrpy; m/rh/1 vGjp ifbaGj;J th';fp bfhz;lhh;fs;/ ehd; ele;j rk;gtj;ij nghyPrpy; brhd;ndd; ////@ 10. P.W.3 Ravi, who is also an eye-witness, has stated as follows in his chief examination: @//// gpwF fhty; epiyak; brd;whh;fs;/ g[fhh; bfhLj;jhh;fs;/ ifbaGj;J nghl;lhh;/ ehd; KG rk;gtj;jij nehpy; ghh;j;njd;/ ////@ 11. P.W.4 Sekar, who is also an eye-witness, has sated in his chief examination as follows: @///// gpwF m/rh/1?I fhty; epiyak; Tl;or; brd;whh;fs;/ mth; ngha; thf;FK:yk; brhd;dhh;/ m/rh/1?,lk; nghyPrpy; goj;J fhz;gpj;J ifbaGj;J th';fp bfhz;lhh;fs;/ rk;gtk; gw;wp vd;id nghyPrhh; tprhhpj;jhh;fs;/////@ 12. So, P.Ws.1 to 4 in their chief examination itself, have deposed before Court that P.W.1 went to Police Station and gave Ex.P- 1 complaint. 13. Per contra, learned Government Advocate culled out some portion of the evidence of P.W.8 Sub-Inspector of Police, who is the person who received the complaint from P.W.1. P.W.8 Sub-Inspector of Police in his evidence, in chief examination, has stated as follows: @///// fle;j 18/11/2001?y; tp/fsj;J}h; fhty; epiyaj;jpy; Jiz Ma;thsuhf gzpapy; , Ue;j nghJ tp/fsj;J}iu nrh;e;j gukrptk; cilahh; kfd; uhn$e;jpud; vd;gth; bfhLj;j g[fhh; thf;FK:yj;ij gjpt[ bra;J fhty; epiyak; te;J 18/11/2001. ,ut[ 22/00 kzpf;f tp/fsj;J}h; fhty; epiya F/vz;/221-2001?y; ,/j/r/ gphpt[fs; 294(gp). kw;Wk; 307 gphptpd; fPH; Jhpj Kjy; jfty; mwpf;if jahh; bra;njd;/ me;j Jhpj Kjy; jfty; mwpf;if m/j/rh/M/7 MFk;/ ////@ 14. While considering the cross examination of P.W.8, P.W.8 has stated that he went to Trichy Government Hospital at 2 p.m. where P.W.1 was not there and immediately he rushed to Sea Horse Hospital at 5 p.m., where P.W.1 was in the Emergency Ward and P.W.8 recorded the complaint in half an hour. P.W.8 has further sated that he has not obtained any permission from the Doctor. 15. At this juncture, it is appropriate to consider Ex.P-1 complaint, in which, there is no endorsement that P.W.8 received the complaint in the hospital. While perusing Ex.P-7 F.I.R., it is stated therein that after P.W.8 received information, he went to Perambalur Government Hospital and he came to know that P.W.1 was transferred to Trichy Government Hospital and immediately, he rushed to Trichy Government Hospital, but subsequently he came to know that P.W.1 was taking treatment in Sea Horse Hospital and then he met P.W.1 there and recorded his statement. But P.W.8 has not stated the same in his chief examination. To circumvent the delay in registering the case, the same endorsement has been made in Ex.P-7 F.I.R. https://hcservices.ecourts.gov.in/hcservices/ 16. Except the official witness P.W.8, the eye-witnesses and other independent witnesses categorically stated that P.W.1 went to Police Station and gave complaint, and then only, they went to hospital. 17. In the abovesaid circumstances, it is appropriate to consider the decisions relied upon by the learned Government Advocate in 2002 SCC (Cri) 1337 (cited supra), wherein, it is stated that merely because P.W.1 therein has stated that she gave a complaint, since she is a rustic village woman, her statement will not be taken as a whole. In the said decision reported in 2002 SCC (Cri) 1337 (cited supra), it is held as follows: "9. Next it was submitted by the learned counsel for the appellant that according to PW 1 she had first gone to the police station where the victim had made a report of the incident and then they had proceeded to the hospital. An adverse inference ought to be drawn against the prosecution for withholding the FIR lodged by the victim herself. Such argument was advanced before the trial Court and the High Court also. It has been pointed out by the trial court that the witness is a rustic village woman and such a statement appears to have been made by her in a state of confusion. If it was so as is being suggested then the police officers who have appeared as witnesses, especially the one who has proved the FIR, should have been asked whether there was any report of the incident, than the one originating in the statement of PW 1, made at the police station and that too by the injured herself. No question was asked nor any suggestion made to the witnesses on the lines taken in the argument of the learned counsel." 18. Learned Government Advocate also relied on the decision of the Calcutta High Court reported in 2000 Cri.L.J. 1241 (cited supra), wherein, it is held as follows: "In the case of a delayed FIR or even where the original FIR, if any, is not coming before the Court that by itself may not in all circumstances be a reason to summarily throw away the prosecution case itself." 19. The abovesaid decisions are not applicable to the facts of the present case, because, P.W.1 in the present case is an injured eye-witness, who was the complainant, and he deposed before Court in chief examination itself that he went to the Police Station and gave a complaint. 20. Considering the evidence of P.Ws.1 to 4, the earliest complaint which was given by P.W.1 before he went to hospital, was suppressed by the prosecution. As per the evidence of P.W.8 Sub- Inspector of Police, he went to Sea Horse Hospital at Trichy and https://hcservices.ecourts.gov.in/hcservices/ recorded the complaint and that alone has been registered as FIR as per Ex.P-7. So, I am forced to accept the argument advanced by learned counsel for the appellants that the earliest complaint given by P.W.1 was suppressed. 21. The next limb of argument advanced by learned counsel for the appellants-accused is that there is a contradiction between the ocular evidence and medical evidence. After the complaint, P.W.1 went to Perambalur Government Hospital, where P.W.7 treated him and gave Ex.P-5 accident register. In Ex.P-5 accident register, it is stated that, "alleged to have been assaulted by three known pesons with kz;btl;o at 8.00 a.m. on 18.11.2001 at V.Kalathur." P.W.1 also sustained injury. But when P.W.1 was treated at Sea Horse Hospital, Ex.P-6 wound certificate was issued, in which, it is stated that, "as told by patient, alleged to have been assaulted with Iron Piece (kk;K:l;o) by a person by name Neelamagam". In his oral evidence, P.W.1 in his chief examination has stated that when he was chatting with A- 2, A-1 has assaulted him with wooden handle of the spade on his head. In such circumstances, A.1 Kannan @ Neelamegam alone caused injury to P.W.1. But as rightly pointed out by learned counsel for the appellants-accused, there is no common intention for commission of offence, because, P.Ws.1 and 2 went to the place of occurrence, where the accused house has been situated and they requested A.1 to A.3 (A.3 is the father and A.1 and A.2 are sons) not to block the drainage, as due to heavy rain, the street was immersed in water. At that time, A.1 assaulted P.W.1 with wooden handle of the spade and he sustained injury. In such circumstances, there is no iota of evidence before Court to show that there was any common intention. 22. Even though P.W.l has sustained grievous injury, since the treatment given by the other Doctors have not been examined before Court and x-ray has not been marked before Court, the appellants were convicted for the offence under Section 324 IPC. As already stated, the earliest complaint given by P.W.1 has not been placed before Court and that has been suppressed by the prosecution. Since the first information goes, the subsequent complaint Ex.P-1 is only the statement under Section 161 Cr.P.C. The first document which set the law in motion, has not been placed before Court. Hence, the entire case of the prosecution fails. 23. Therefore, I am of the opinion that the trial Court has not considered the above aspects on the basis of the oral evidence of P.Ws.1 to 4 for suppression of the earliest complaint given by P.W.1 at the Police Station before he went to hospital. Hence, "benefit of doubt" is to be given in favour of the appellants/A.1 to A.3 and they are entitled to be acquitted of the charges. 24. In fine, (a) the Criminal Appeal is allowed. https://hcservices.ecourts.gov.in/hcservices/ (b) The conviction and sentence imposed on the appellants/A.1 to A.3 are set aside. (C) The appellants/A.1 to A.3 are acquitted of the charges. (d) The bail bond, if any executed by the appellants/A.1 to A.3 shall stand cancelled. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar cs To 1. The Principal District and Sessions Judge, Perambalur. 2. The Inspector of Police, Mangalamedu Police Station. 3. The Public Prosecutor, High Court, Madras. + 1 cc to Mr.A.G.RAJAN, Advocate, Sr 4693 Crl.A.No.198 of 2003 VSV (CO) RH (15.2.10) https://hcservices.ecourts.gov.in/hcservices/