IN THE HIGH COURT OF JUDICATURE AT MADRAS Date:- 30.08.2010 Coram The Honourable Mr. Justice M. CHOCKALINGAM and The Honourable Mr. Justice M. SATHYANARAYANAN Crl. A. No.91 of 2010 1. Balasubramanian 2. Chandrasekar 3. Govindaraj ... Appellants/Accused ..Vs.. State, Inspectof of Police, Gudimangalam Police Station, Coimbatore District. (Crime No.197/07) ... Respondent/Complainant Appeal filed under Sec.374(2) of Cr.PC against the judgment dated 17.6.2010 passed by the First Additional District and Sessions Judge, Coimbatore in S.C. No.236 of 2008. For Appellant : Mr. V. Gopinath, Sr. counsel for Mr. L. Mahendran For Respondent : Mr. V. Balasubramanian, Addl. Public Prosecutor JUDGMENT (Judgment was delivered by M. CHOCKALINGAM, J.) Challenge is made to the judgment dated 17.6.2009 passed by the learned First Additional District and Sessions Judge, Coimbatore in S.C. No.236 of 2008 whereby the appellants 1 to 3 along with other accused ranked as fourth accused stood charged, tried, found guilty and awarded punishment as follows:- https://hcservices.ecourts.gov.in/hcservices/ Sl. No. Rank of the accused Charge Finding Sentence 1. 1st Accused 302 I.P.C. 506(ii)I.P.C. 307 I.P.C. Guilty Not Guilty Not Guilty Life Imprisonment and to pay a fine of Rs.1000/- in default to undergo Rigorous Imprisonment for five months. .... .... 2. 2nd Accused 302 I.P.C. 324 I.P.C. 506(ii)I.P.C. 307 I.P.C. Guilty Guilty Not Guilty Not Guilty Life Imprisonment and to pay a fine of Rs.1000/- in default to undergo Rigorous Imprisonment for five months. Six months Rigorous Imprisonment and to pay a fine of Rs.500/- in default to undergo Rigorous Imprisonment for two months .... .... 3. 3rd Accused 302 I.P.C. 506(ii)I.P.C. 307 I.P.C. Guilty Not Guilty Not Guilty Life Imprisonment and to pay a fine of Rs.1000/- in default to undergo Rigorous Imprisonment for five months. .... .... https://hcservices.ecourts.gov.in/hcservices/ Sl. No. Rank of the accused Charge Finding Sentence 4. 4th Accused 302,307 and 506 (ii) I.P.C. Not Guilty Acquitted 2. The short facts necessary for the disposal of the case can be stated thus:- (i) Accused 1 and 3 are brothers. The second accused is the son of the third accused. The deceased Gnanasekaran is another brother of accused 1 and 3. There was a land dispute between the third accused and Gnanasekaran, in respect of which there was a criminal case pending on the file of the Sub Court, Udumalpet against the deceased Gnanasekaran, which ended in acquittal by judgment dated 16.7.2007. (ii) On the next day, i.e. on 17.7.2007 at about 7.30 a.m., all the witnesses P.Ws.1 to 3 along with the deceased Gnanasekaran went to their field and P.W.1 went to the milk Society to hand over the milk. At that time, accused 1 to 4 came in a car bearing registration No.TN-41-4454 and P.W.4 came there and asked tender coconuts from P.Ws.2 and 3. When both of them went for taking tender coconuts along with P.W.4, they heard a distressing cry and they ran. P.W.1 also returned from Society after supplying milk. (iii) All of them witnessed the occurrence that the second accused cut the deceased with aruval on his head, the third accused had beaten the deceased on his head repeatedly with iron rod, the first accused attacked him on his head with hammer and the fourth accused attacked him with wooden log. (iv) When P.W.1 intervened, he was attacked by second accused with aruval on hands, third accused had beaten him on his head and lips, first accused attacked him with hammer on his both eyes and the fourth accused attacked him with wooden log and P.W.1 was also severely injured. Thereafter, accused 1 to 4 fled away from the place of occurrence. (v) P.Ws.3 and 5 engaged a taxi of P.W.8 and took P.W.1 and severely injured Gnanasekaran to the Government Hospital, Udumalpet and on their advice, Gnanasekaran was taken to the Government Hospital, Coimbatore. On intimation, P.W.16 Sub Inspector of Police, Gudimangalam Police Station went to the Government Hospital, Udumalpet and recorded the statement of complaint Ex.P1 from P.W.1 and on the strength of Ex.P1 complaint, a case in Crime No.197 of 2007 was registered for the offences under Sections 307 and 506 (ii) of the Indian Penal Code. Express First Information Report Ex.P8 was despatched to the Court. https://hcservices.ecourts.gov.in/hcservices/ (vi) After receiving copy of First Information Report, P.W.17 Inspector of Police took up investigation and went to the place of occurrence and prepared Ex.P2 observation mahazar and Ex.P9 rough sketch and thereafter recovered M.O.2 bloodstained earth, M.O.3 sample earth and M.O.4 bloodstained stone under the cover of Ex.P3 mahazar in the presence of witnesses. P.W.1 was sent for treatment to the Government Hospital, Coimbatore where he had taken treatment and wound Certificate is marked as Ex.P6 and intimation was received that Gnanasekaran succumbed to injuries sustained by him. Thereafter, the case was altered to one under Sections 302, 307 and 506(ii) of the Indian Penal Code. Amended First Information Report Ex.P10 was sent to the Court. (vii) The Investigator further proceeded to the investigation and conducted inquest on the dead body in the presence of witnesses and the inquest report is marked as Ex.P11. Thereafter, the dead body was sent for post-mortem and P.W.11, who conducted post-mortem, issued post-mortem Certificate Ex.P5 where he has opined that the deceased would appear to have died of multiple Cranio cerebral injuries sustained by him. (viii) Pending investigation, P.W.17 arrested the third accused on 20.7.2007, pursuant to which, he gave confession statement voluntarily and the same was recorded in the presence of witnesses. The admissible portion of the same is marked as Ex.P12 Thereafter, on identification by the third accused, P.W.17 seized M.O.5 bloodstained iron rod, M.O.4 shirt under Ex.P7 mahazar. (ix) Thereafter, the Investigator came to know that the first and second accused surrendered before the Court and he filed a memo for getting the police custody and the same was ordered and accused 1 and 2 were taken to police custody on 7.8.2007. Thereafter, he recorded the confession statements given by them voluntarily in the presence of P.W.14 Sri Murugan. The admissible portion of the same are marked as Ex.P116 and P13 respectively. On their identification, he seized M.O.7 aruval, M.O.8 hammer, M.O.9 wooden stick. Thereafter, he seized M.O.10 Nokio cell phone from the house of the second accused under Ex.P15 mahazar. On identification by the first accused P.W.17 seized Maruthi 800 car bearing registration No.TN 41-Q-5425 under Ex.P17 mahazar. (x) Thereafter, he took the fourth accused to his custody on 21.11.2007 and recorded the confession statement given by him. Thereafter, all the material objects, which were seized from the accused and recovered from the dead body, were subjected to chemical analysis. Ex.P18 is the chemical analysis report and Ex.P19 is the Serological report. On completion of investigation, final report is filed. The case was committed to the Court of Sessions. Necessary charges were framed against the accused. https://hcservices.ecourts.gov.in/hcservices/ 3. In order to substantiate its case, the prosecution examined 17 witnesses viz. P.Ws.1 to 17 and relied on 19 documents viz. Ex.P1 to 19 and also relied on M.Os.1 to 10. On completion of examination of witnesses on the side of the prosecution, when the accused were questioned under Section 313 of the Criminal Procedure Code, they denied them as false. No witness was examined on the side of the accused. 4. The Trial Court, after hearing the arguments advanced by either side and scrutinising the materials available on record, found accused 1 and 3 guilty under Section 302 of the Indian Penal Code and found the second accused guilty under Sections 302 and 324 of the Indian Penal Code and awarded the punishment as referred to above. Hence this appeal is filed at the instance of the appellants. 5. Advancing arguments on behalf of the appellants, learned counsel would submit that the occurrence, according to the prosecution, had taken place at 7.30 a.m. on 17.7.2007. To prove the guilt of the accused, the prosecution relied on the evidence of P.Ws.1 to 4. P.Ws.1 to 3 are closely related to each other and they are interested witnesses and hence their evidence cannot be accepted. Apart from this, P.W.4, though independent witness, the same cannot be accepted. In the evidence of P.W.4, at the time of cross- examination, he made it clear that P.Ws.1 and 4 did not see the occurrence. According to him, he came to the spot after the occurrence was over. Thus, insofar as the evidence of P.Ws.2 and 3 are concerned, they have categorically stated that P.W.1 went for supply of milk to the Milk Society. P.W.4 came to the spot and asked for tender coconuts and hence, P.Ws.2 and 3 accompanied P.W.4, leaving the deceased Gnanasekaran and went inside the field for taking tender coconuts. At that time, they heard the distressing cry. They have categorically stated that they were standing 500 feet inside the field and hence P.Ws.2 and 3 could not have seen the occurrence. After the occurrence was over, P.W.4 along with P.Ws.2 and 3 rushed to the place of occurrence. Hence, from the evidence of P.W.4, it would be quite clear that P.Ws.2 and 3 could not have seen the occurrence at all. 6. Learned counsel added further that it is true that the prosecution has relied on the evidence of P.W.1 as not only eye witness but also the injured witness. But the evidence of P.W.1 should have been rejected by the Trial Court. According to the prosecution, immediately after the occurrence, P.W.1 and Gnanasekaran were taken to the Government Hospital, Udumalpet where they were given treatment and thereafter, they were taken to the Government Hospital, Coimbatore. It is pertinent to point out that insofar as these two persons viz. P.W.1 and the deceased Gnanasekaran are concerned, no medical person was examined or any accident register or wound Certificate was marked. What were placed before the Court is the evidence of P.W.11 Doctor and the wound Certificate Ex.P6 https://hcservices.ecourts.gov.in/hcservices/ recorded by him. It has come into existence at 5.30 p.m. on the date of occurrence i.e. on 17.7.2007. Prior to the above, no medical evidence was produced nor document was placed before the Court, which would throw suspicion on the prosecution case. Non production of those document must indicate that it is a fit case to draw adverse inference against the prosecution. 7. Learned counsel added further that P.W.8 is the taxi driver, who has actually took the deceased Gnanasekaran and P.W.1 to the Hospital. He has candidly deposed that when he just took them to the Government Hospital, Udumalpet, the Sub Inspector of Police was present there. Hence, it is quite clear that the evidence of P.W.1 that when he was in the hospital, he gave statement to P.W.16 the Sub Inspector of Police and the statement of P.W.1 was recorded in the Government Hospital, Udumalpet is nothing but false. Prior to that, there was an intimation which was received by the Sub Inspector of Police and only after receiving the same, P.W.16 Sub Inspector of Police could have come to the spot. All would clearly indicate that the fact that the first information was received at the police station, pursuant to which, the Sub Inspector of Police came to the spot, was suppressed. Ex.P1 is not the first information in the instant case and the first information has been suppressed. 8. Learned counsel added further that Ex.P6 is the Wound Certificate which has actually come into existence at 5.30 p.m. P.W.11 is the Doctor who was examined in that regard. P.W.12 candidly admitted that it was he who gave treatment at 5.30 p.m. and P.W.1 was conscious and the statement given by him is recorded in Ex.P6 wound Certificate. A perusal of Ex.P6 Wound Certificate would indicate that P.W.1 was attacked by two known persons, which is contrary to the prosecution case. All would indicate that even the evidence of P.W.1 is not available to the prosecution and the prosecution has miserably failed to bring home the guilt of the accused. On the contrary, the Trial Judge has taken erroneous view and hence, the appellants are entitled for acquittal in the hands of the Court. 9. This Court heard the learned Additional Public Prosecutor on the above contentions. 10. This Court paid its anxious considerations on the above contentions. It is not in controversy that one Gnanasekaran, husband of P.W.2, following the incident that had taken place on 17.7.2010 at 7.30 a.m., was taken to the Government Hospital, Udumalpet and thereafter to the Government Hospital, Coimbatore, where he was declared dead. The case, having registered under Section 307 of the Indian Penal code, on the death of Gnanasekaran, was converted to one under Section 302 of the Indian Penal Code. Following the inquest made on the dead body and preparation of inquest report Ex.P11, the body was subjected to autopsy and P.W.11 Doctor, who has https://hcservices.ecourts.gov.in/hcservices/ conducted post-mortem Certificate Ex.P5, has categorically opined as a witness before the Court and the contents of the post-mortem Certificate is also to the effect that the deceased would appear to have died of multiple Cranio cerebral injuries sustained by him. Hence, the fact that the deceased died out of homicidal violence was not subjected to controversy before the Trial Judge and the learned Trial Judge was right in recording so. 11. In order to substantiate the charges levelled against the appellants and also the other accused, the prosecution relied on four witnesses as eye witnesses. It is true that P.Ws.1 to 3 are closely related to each other and also the deceased. It is well settled principle of law that merely on the ground of relationship, their evidence cannot be rejected. Before acceptance, a careful scrutiny should be necessary. Law is well settled that in a given case like this, when one of the witnesses is the injured witness, the said evidence should not be discarded unless or until strong circumstance is noticed or reason is brought about. On this preposition, this Court can apply the decision of the Supreme Court reported in the case of BISHNA v. STATE OF W.B. ((2005) 12 SCC 657), wherein it is held as follows:- " 37. The testimony of an injured witness vis- a-vis improvement and inconsistencies in their evidence as regards the part played by each of the accused may not itself be a ground to disbelieve the witnesses when having regard to prove the injuries on them it would have been impossible to give a detailed ground of the incident." 12. In the instant case, P.W.1 is not only an eye witness but also an injured witness. P.W.1 has categorically stated that on the morning hours of 17.7.2007, he went to the field in a motor bike accompanied by the deceased Gnanasekaran and P.Ws.2 and 3 and thereafter, went to the Milk Society to supply milk, leaving Gnanasekaran and P.Ws.2 and 3 and after supplying milk, he came back to the place of occurrence. At that time, he witnessed the occurrence. P.W.1 has categorically stated that the first accused was armed with hammer, the second accused was armed with aruval and the third accused was armed with iron rod and they attacked the deceased. When P.W.1 intervened, he was also attacked by all the three persons. Despite the cross examination in full, the evidence of P.W.1 remains unshaken. 13. At this juncture, the comments made by the learned counsel for the appellant is that P.W.1 was originally taken to the Government Hospital, Udumalpet and thereafter, he was taken to the Government Hospital, Coimbatore and when he remained at Udumalpet Government Hospital, no accident register or wound Certificate was https://hcservices.ecourts.gov.in/hcservices/ produced or any medical person has been examined. This Court is of the considered opinion that the non production of this document cannot have any vital importance for the reason that P.W.1 has categorically stated that when he was actually at the Government Hospital, Udumalpet, he got himself discharged and got admitted in private hospital. 14. P.W.16 Sub Inspector of Police has categorically stated that on information from the Government Hospital, Udumalpet, he rushed to the Hospital and recorded the statement of P.W.1, which is marked as Ex.P1 and the statement was recorded at about 9.10 a.m. and the case came to be registered at about 10.30 a.m. and thus, it would be quite clear that after recording the statement, immediately the case has been registered and the same also reached the Court within a short span of time. In such circumstances, the Court is unable to see any reason that the evidence of P.W.1 should be looked into with suspicion since the clear narration of the incident made by P.W.1 an injured witness has got to be accepted and the same is rightly accepted by the learned Trial Judge, which inspires confidence of the Court. 15. Much comment was made on the evidence of P.Ws.2 and 3 that they could not have seen the occurrence. Both P.Ws.2 and 3 have categorically stated that they were inside the field along with P.W.4 for taking tender coconuts and when they heard distressing cry, they rushed to the spot and at that time, they saw the accused attacking the deceased at the place of occurrence. The evidence of P.W.4 should be rejected for the reason that he could not have seen the occurrence. 16. At this juncture, a comment that was made by the learned counsel for the appellant that Ex.P1 complaint is not the first information which has come into existence and the earlier information has been suppressed cannot be accepted. According to P.W.8, he went to the spot and took both the injured and the deceased where he saw P.W.16 the Sub Inspector of Police. He has never stated that any statement was recorded or the Sub Inspector of Police has enquired anybody. Hence, it is quite clear that the Sub Inspector of Police, even assuming to be present in the place of occurrence, in the absence of information which could be taken as first information under Section 154 of the Crime Procedure Code, the contention put forth by the learned counsel for the appellant cannot be countenanced. 17. Learned counsel for the appellant, pointing to Ex.P6 Wound Certificate, would submit that according to P.W.1, two known persons attacked him at the time of occurrence and the same is mentioned in Ex.P6 wound certificate. This contention cannot be accepted for the reason that P.W.1 was originally taken treatment at the Government Hospital, Udumalpet at 9 a.m. According to Doctor, he left the Hospital without even proper discharge. Added further, https://hcservices.ecourts.gov.in/hcservices/ P.W.11 Doctor examined P.W.1 only at 5.30 p.m. in the evening. It is also agreed by P.W.1 that he was attacked by two known persons which was actually found in Ex.P6 Wound Certificate. Hence, once the case has already been registered on the statement of P.W.1, an injured witness, as to how the occurrence had taken place and as to how many assailants have participated and the First Information Report also reached the Court very early, the Court is of the considered opinion that much importance need not be attached to Ex.P6 document. 18. It is also pertinent to point out that the ocular testimony of P.W.1 stood fully corroborated with post-mortem Certificate Ex.P5. Hence, the learned Trial Judge has perfectly marshalled the evidence and has properly arrived at the finding recorded in the judgment. Hence, the contentions put forth by the learned counsel for the appellant do not carry any merit whatsoever. Learned Trial Judge has acquitted the fourth accused on the grounds, which are sound. Under the circumstances, the learned Trial Judge has rightly found accused 1 and 3 guilty under Section 302 of the Indian Penal Code and found the second accused guilty under Sections 302 and 324 of the Indian Penal Code and awarded the punishment as referred to above. 19. In the result, the appeal stands dismissed. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar ssa. To 1. The Judicial Magistrate No.II, Udumalpet. 2. The Chief Judicial Magistrate Coimbatore. 3. The First Additional District and Sessions Judge, Coimbatore. 4. -do- Through The Principal Sessions Judge, Coimbatore. 5. The Superintendent, Central Prison, Coimbatore. https://hcservices.ecourts.gov.in/hcservices/ 6. The District Collector, Coimbatore. 7. The Director General of Police, Madras – 4. 8. The Public Prosecutor, High Court, Madras. + 1 cc to Mr. L. Mahendran, Advocate SR.65122 Crl. A. No.91 of 2010 KSK(CO) Eu 22.09.2010. https://hcservices.ecourts.gov.in/hcservices/