IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 27.01.2011 CORAM THE HON'BLE MR.JUSTICE A.ARUMUGHASWAMY Criminal Appeal Nos.719 of 2010 1. Rajasekaran 2. Janarthanam 3. Ravishankar .. Appellants ..vs.. State by Inspector of Police Mayiladuthurai Police Station Cr.No.1890 of 1994 .. Respondent Criminal Appeal against the Judgment dated 20.11.2002 made in S.C.No.160 of 1995 on the file of the learned Principal Assistant Sessions Judge, Mayiladuthurai. For appellants : Mr. Ilanchezhiyan for M/s. Sai Barath Ilan For respondent : Mr. Kumanan Government Advocate (Crl. Side) JUDGMENT The appeal arises out of the verdict of conviction in S.C.No.160 of 1995 on the file of the Principal Assistant Sessions Judge, Mayiladuthurai, dated 20.11.2002, convicting the appellants/accused 1 to 3 under section 332 (2 counts) IPC and 506 (ii) (2 counts) IPC and sentencing them to undergo rigorous imprisonment for one year and to pay a fine of Rs.1000/- each, in default to undergo simple imprisonment for three months for the offence under section 332 (2 counts) IPC and sentencing them to undergo rigorous imprisonment for two years and to pay a fine of Rs.1000/- each, in default to undergo simple imprisonment for three months for the offence under section 506 (ii) (2 counts) IPC. The sentence of imprisonment shall run concurrently. 2. The motive for the case has been narrated here under :- The accused 1 to 3 are the appellants. On 22.10.1994 PW.8, Kesavalu, gave complaint against his brother Janarthanam, https://hcservices.ecourts.gov.in/hcservices/ A2/appellant-2 herein. In that complaint, he alleged that while he was standing behind the school, his brother Janarthanam along with A1 and A3 prevented the complainant with wooden logs and they threatened him to be killed, in the event of refusing to divide the properties. For this overt act, he gave a complaint and the case has been registered under sections 341 and 506 (ii) IPC. That complaint was registered by Mayiladuthurai Police in Cr.No.1890 of 1994 and it has been taken cognizance by the court below in C.C.No.2525 of 1996. In that complaint, PW.8 complained against said Janarthanam, Rajasekaran and Ravishankar. 3. The case of the prosecution in the present case is that after receiving that complaint, three constables, viz., PW.1- Janarthanam, Head Constable, PW.2-Rajasekaran, Constable and PW.3- Ravishankar, went to arrest A1 and A2 at his residence. While they were proceeding to their house, they saw A1 to A3 standing near the temple in 'Sannadhi Vasal'. When they attempted to arrest them at about 11.30 a.m., the accused abusing against the police by "nghyP!;fhu';f bjhy;iy jh';f Koatpy;iy. btl;of; bfhy;Y';flh". Soon, A1 attacked PW.1, and A2 attacked PW.2. At last they managed to arrest A1 to A3. They took them to the police station. Thereafter A1 and A2 were sent to the hospital for treatment. In the same course of clash, the accused A1 to A3 also sustained injuries. For the injuries of PW.1, PW.3, and deceased PC Thiagarajan have been sent to the Government Hospital for their treatment. Subsequently, A1 and A2 also were sent to the same government Hospital. Doctor PW.6, gave treatment to all the above said five persons. He gave wound certificates Ex.P2 to Ex.P4. PW.1 gave complaint Ex.P1. On the complaint, PW.9 registered First Information Report Ex.P10 and on completion of investigation filed charge sheet under sections 147, 148, 323, 332, 307 and 506 (2) IPC against the accused. 4. To substantiate charges against the accused, in the trial Court, prosecution examined P.Ws.1 to 9 and marked Exs.P1 to P11 and marked M.Os.1 and 2. On behalf of the accused, one witness was examined and one document was marked as exhibit. 5. PW.1 and PW.2 are injured witnesses. PW.3 is an eye witness. PW.4, an auto driver who is also an eye witness. PW.3 and 4 speak about attack on PW.1 and 2 by the accused. PW.5 is Observation Mahazar Witness. PW.6 is Doctor, who examined all the injured five persons, which includes two accused and PW.1 to PW.3. PW.7 is Observation Mahazar Witness. PW.8 has been examined to speak about the previous case. PW.9 the then Investigating Officer, who investigate the case and filed charge sheet under sections 147, 148, 323, 332, 307 and 506 (2) IPC against the accused. 6. After due trial in the police case, the trial court acquitted A4 and A5 and convicted and sentenced A1 to A3 as stated above. Against which the present appeal has been filed. https://hcservices.ecourts.gov.in/hcservices/ 7. From the evidence, it is clear that on the complaint given by the complainant, who is the brother of A2, three constables, viz., PW.1-Janarthanam, Head Constable, PW.2-Rajasekaran, Constable and PW.3- Ravishankar, went to arrest A1 and A2 at their residence. While they were proceeding to arrest, A1 to A3 were standing near the temple in 'Sannadhi Vasal'. When they attempted to arrest them at about 11.30 a.m., the accused raising some slogan against the police that "nghyP!;fhu';f bjhy;iy jh';f Koatpy;iy. btl;of; bfhy;Y';flh" . After shouting this, A1 attacked PW.1, and PW.2 was attacked by A2. Then they came over there and arrested A1 to A3 and taken them to the police station and A1 and A2 were sent to the hospital for treatment. On reading the complaint, Ex.P1, it is seen that only Section 344 IPC alone is the ingredient found place in the earlier complaint. For this purpose, the three police officials would not have rushed to the place of the accused to arrest them. In short, the complaint does not require immediate arrest of the accused. 8. In this appeal, the learned counsel appearing for the accused contended that the prosecution has not come forward with true version of the accused in as much as the prosecution failed to prove the injuries. The learned counsel for the accused submits that P.Ws.1,2 and the deceased are interested witnesses. Their evidence requires close scrutiny. Further submits the injuries sustained by P.Ws1, 2 and the deceased are minor injuries while comparing to the multiple injuries sustained by the accused. Thus the accused totally contradict of the appeal not distinctively and liable to be set aside. 9. Per contra, the counsel would submit that non-explanation of the injuries on the accused has not affected the ocular evidence of P.Ws. 1,2 and the deceased. He would further add P.W.1,2 and the deceased are injured witness. P.W.4 is the natural witness. No one has been suggested the prosecution witness simply because the injury has not been explained, though conviction of the accused cannot be stated to be unmerited. 10. I have considered the rival submissions. 11. It is not in every case where the injustice to the accused has not been explained any of the prosecution that the guilty should be acquitted. Similarly it is not the law that there is no duty cast upon the prosecution to explain the injuries on the accused. 12. If at all the facts and circumstances of each case while doing the said exercise, the court has to have a over all view. The entire facts and circumstances culled out from the evidence let in on either side . In this case as we have already noticed A1 has as many as 14 injuries and A2 has 11 injuries. Out of the injuries https://hcservices.ecourts.gov.in/hcservices/ some of the injuries are even on vital parts of the body . It is not as though these injuries could not have been noted by P.Ws 1,2 and 4. 13. Going by the number of injuries on the vital parts of the body where they have been found out I am of the view that in the State case, the prosecution is bound to have explained the injuries sustained by the accused. Since P.Ws 1,2 and 4 have not stated anything about the injuries sustained by the accused it goes without saying that the prosecution witnesses are suppressing the material facts and they have not come forward with the true version of the occurrence. 14. It is of course true that no previous motive has been suggested to the prosecution witnesses. But on that score alone it is not safe to absolutely rely on the evidence of P.Ws 1, 2, 4 and the deceased to sustain the case. 15. P.W. 9 is the investigating officer who has also not explained as to why he referred the case registered on the complaint of A1. Further as stated in PSO 588 a complaint in the counter case, FIR, the wound certificate other documents should have been exhibited by the prosecution in evidence. This only will satisfy the fair trial to be assured to the accused as required under Article 21 of the Constitution. Hence, the prosecution has suppressed one version of the case and has chosen to come forward with coloured version against the accused. 16. In view of the foregoing reasons discussed above I hold that the prosecution has failed to come forward with the true version of the accused and therefore though P.Ws.1,2, and the deceased are injured eye witness I hold it is unsafe to sustain the conviction relying on their evidence. Thus, in my considered opinion the conviction imposed on the accused are liable to be set aside. 17. In the result, the appeal is allowed and the conviction and sentence imposed by the trial Court on the appellants/accused is set aside and they are acquitted. The bail bond etc., shall stand discharged. Fine amount, if any, paid, shall be refunded. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar mra. https://hcservices.ecourts.gov.in/hcservices/ To 1.The Principal Assistant Sessions Judge, Mayiladuthurai. 2.Do Thro The Principal Sessions Judge, Nagapattinam 3.The Inspector of Police, Mayiladuthurai Police Station. 4.The Public Prosecutor, High Court, Madras. Crl.Appeal No.719 of 2010 jrg(co) pmk.26.3.2011 https://hcservices.ecourts.gov.in/hcservices/