IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 20.3.2009 CORAM THE HONOURABLE MR. JUSTICE C.NAGAPPAN AND THE HONOURABLE MR. JUSTICE T.SUDANTHIRAM Crl.A.No. 870 of 2007 1. Eswaran 2. Selamban .. Appellants/Accused 1 & 2 Vs. State Rep. by the Inspector of Police, Uthukuli Police Station Crime No.113 of 2006 Erode district. .. Respondent/Complainant Prayer : Appeal against the Judgment, dated 19.4.2007, passed in S.C.No. 195 of 2006 on the file of the Additional District and Sessions Judge, (Fast Track Court No.I) Erode. For Appellants :: Mr. A.K.Kumarasamy For Respondent :: Mr. P.Kumaresan, Additional Public Prosecutor J U D G M E N T (Judgment of the Court was rendered by T.SUDANTHIRAM, J.) The appellants, who are A.1 and A.2 in Sessions Case No. 195 of 2006 on the file of the Additional District and Sessions Judge [Fast Track Court No.I], Erode, stand convicted for the offences under Sections 449, 302 r/w 34 and 506(ii) IPC and sentenced to undergo ten years Rigorous Imprisonment for the offence under Section 449 IPC; life imprisonment for the offence under Section 302 r/w 34 https://hcservices.ecourts.gov.in/hcservices/ IPC; and two years Rigorous Imprisonment for the offence under Section 506(ii) IPC and the sentences were ordered to run concurrently. Aggrieved by the said conviction and sentence, the accused have preferred the present appeal. 2. The case of the prosecution is that deceased Murugan is the brother of P.W.1 Kali. A.1 Easwaran and one Mani are the sons of A.2 Selamban. Mani used to talk with the wife of deceased Murugan. As such there was frequent quarrel between deceased Murugan and Mani. On the date of occurrence, i.e. on 28.5.2006, at about 7.00 p.m., when deceased Murugan was in the house of P.W.1 Kali, A.1 Easwaran and A.2 Selamban came there and dragged deceased Murugan and took him near Perumal temple. A.1 Easwaran attacked deceased Murugan with wooden cot leg on his hands and A.2 Selamban attacked deceased Murugan using the wooden cot leg on his head. Thereafter, A.1 Easwaran and A.2 Selamban ran away from the scene of occurrence. This occurrence was witnessed by P.W.2 Ponnusamy, who is the brother-in-law of P.W.1 Kali, and also by P.W.3 Semalaigounder. P.W.1 Kali and P.W.2 Ponnusamy covered the wounded place of injured Murugan using cloth. On the next day morning, i.e. 29.5.2006, deceased Murugan was taken to Tiruppur Government Hospital. P.W.6 Dr. Senthil had seen deceased Murugan and also noted the following injuries (1) Cut injury scalp left occipital region, size 5 x 1 cms.; (2) Cut injury scalp left parietal region 4 x 1 cms.; (3) Fracture right humerus with multiple abrasion 1 x 1 cm.; and (4) compound fracture left humerus with multiple laceration injury, size 5 x 4 cms and 6 x 4 cms. Ex.P4 is Accident Register Extract. As injuries were serious, he advised to take injured Murugan to Coimbatore Medical College Hospital. Injured Murugan was also taken to Coimbatore Medical College Hospital on 29.5.2006 at 2.53 p.m. In the meantime, P.W.10 Sub-Inspector of Police of Uthukkuli Police Station, on receiving the intimation from the Out-Post Police Station of Tiruppur Government Hospital, went to Tiruppur Government Hospital and as he came to know that the patient had already been sent to Coimbatore Medical College, Hospital, he reached there on 29.5.2006 at 8.30 p.m. As Murugan was unconscious and not in a position to speak, he could not get any statement from him. On 30.5.2006, at 5.30 a.m., he recorded the statement from P.W.1 Kali and came back to the Police Station and registered a case at 8.00 a.m. in Crime No.313/06 under Sections 452, 324, 506(2) IPC. Ex.P14 is the First Information Report. Later, he went to the scene of occurrence and prepared Ex.P2 Observation mahazar, drew Ex.P15 Rough Sketch and recovered M.O.3 https://hcservices.ecourts.gov.in/hcservices/ wooden cot leg under Ex.P3 and on the same day, at 12.15 p.m., he arrested both the accused near Sadayampathi bus stop and sent them for remand at about 2.00 p.m. and at about 4.00 p.m., he recovered M.Os.1 and 2 shirt and dhoti respectively, of the deceased from one P.W.2 Ponnusamy, under Form 95, which is Ex.P16. Injured Mohan, who was in the hospital, died on 13.6.2006 at 1.00 a.m. and Ex.P12 is the Death Intimation. P.W.9 Sub-Inspector of Police, on receiving the death intimation, altered the offence to one under Section 302 IPC and prepared Ex.P13 Express First Information Report. P.W.11 Inspector Raju, on receiving copy of the Express Report, went to Coimbatore Medical College Hospital and conducted inquest and examined P.Ws.1 to 3 and others. Ex.P17 is the Inquest Report. At about 4.00 p.m., he sent the requisition through Head Constable for conducting post-mortem on the body of the deceased. P.W.7 Dr.Menaka Sekar, on receiving Ex.P5 Requisition, conducted Autopsy at 4.05 p.m. and found the following - "Injuries: (1) Deformity present over right lower arm, on dissection there is fracture of humerus at the junction of upper 2/3 and lower 1/3 surrounded by dirty thick brown coloured fluid of about 200 ml, with a butterfly segment. There was no evidence of fracture healing. (2) 10 x 8 cm open wound present over the front of the left lower arm, exposing the muscles and upper end of the lower fragment of the fractured humerus, which is jutting out the fracture level being upper 3/4 and lower 1/4 : the fracture ends and the wound show evidence of infection. (3) Bedsore measuring 6 cm x 4 cm, each present over the occipital and sacral regions. (4) Both the lungs are adherent to chest wall. (5) There is 10 cm healed sutured wound present over the left parietal region. (6) There is a 2 cm x 2 cm healed wound over the back of right parietal region. (7) The gall bladder is enlarged and contains 150 ml. Of thick bile with sludge. (8) Sub arachnoid haemorrhage seen over the surfaces of both the parietal regions of the cerebral hemispheres. Other findings: Pleural and peritoneal cavities: Empty. https://hcservices.ecourts.gov.in/hcservices/ Lungs cut section congested. Heart: Right side chambers contains fluid blood. Left side chambers empty, coronaries patent. Hyoid bone intact. Stomach contains 70 ml. brown coloured fluid, no specific smell, mucosa congested. Small intestine: contains 30 ml. of bile stained fluid, no specific smell, mucosa a congested Liver, spleen and kidneys: cut section congested. Urinary bladder empty. Skull intact. Brain congested." He gave opinion that the deceased would appear to have died of MULTIPLE INJURIES & THEIR COMPLICATIONS. He issued Ex.P6 Post- mortem Certificate. As P.W.11 Inspector Raju was transferred, P.W.12 Inspector Ramasamy continued the investigation and examined the witnesses. Ex.P9 is the Chemical Analyst's Report and Exs.P9 and P10 are the Serologist's Reports and on completion of the investigation, P.W.11 filed the final Report on 25.7.2006. 3. To prove the case, the prosecution examined P.Ws.1 to 12; marked Exs.P.1 to P.17 and produced M.Os.1. to 3. 4. The accused were examined under Section 313 CrPC and they denied their complicity. No witness was examined and no document was marked on the side of the defence. 5. The trial Court found the accused guilty of the offences under Sections 449, 302 r/w. 34 and 506 (2) IPC and sentenced them as stated as above. 6. Mr.A.K.Kumarasamy, learned counsel for the appellants/accused Nos.1 and 2, submits that the eye-witnesses, namely, P.Ws. 1 to 3, could not have been present at the scene of occurrence and their conduct is very unnatural and though the occurrence is said to have taken place on 28.5.2006 at 7 pm, the victim-Murugan was taken to hospital only on the next day morning. The learned counsel further submits that if P.W.1-Kali, who is the brother of the deceased- Murugan, had informed to P.W.6-Dr.Senthil that three known persons attacked deceased Murugan with unknown weapons, but the present prosecution case is that only two persons attacked deceased Murugan and there is no explanation from the prosecution with regard to this vital contradictory factor. The learned counsel further points out that there was enormous delay of 36 hours in preferring https://hcservices.ecourts.gov.in/hcservices/ the complaint. He further submits that even though the place of occurrence is said to be near the Perumal temple and it is alleged by the prosecution that the victim-Murugan was taken from the house of P.W.1-Kali, admittedly the deceased-Murugan was living with his mother in a separate house and the house of the deceased was shown in Ex.P15-Rough Sketch, but the house of P.W.1 was not shown and it is somewhere else and therefore the version of the prosecution case that Murugan was forcibly taken from the house of P.W.1, is suffering from infirmity. 7. Per contra, the learned Additional Public Prosecutor Mr.Kumaresan submits that the delay in preferring the complaint has been properly explained by the prosecution. He also submits that though the occurrence had taken place at 7 pm on 28.5.2006, as no vehicle was available, the victim-Murugan could not be taken to the hospital immediately and only on the next day morning, he was taken to Tirupur Government Hospital and on intimation from the Tirupur Government Hospital Outpost Police Station, Sub Inspector of Police, Uttukuli Police Station went to Tirupur Government Hospital and as he received information that the victim-Murugan was taken to Coimbatore Medical College Hospital from there, he had gone to Coimbatore Medical College Hospital, and received the complaint from P.W.1-Kali. The learned Additional Public Prosecutor further submits that P.W.3- Semalai Gounder, who is an eye-witness in the case, is an independent witness and there was no reason for him to depose falsely against the accused. 8. This Court considered the submissions made by both sides and perused all the records, with deep consideration. 9. P.Ws.1 to 3 are eye-witnesses to the occurrence and among them, P.Ws.1 and 2 are related to the deceased. Though the occurrence is said to have taken place on 28.5.2006 at 7 pm and the victim-Murugan had sustained serious injuries on both the hands, no attempt was made by anyone immediately to take Murugan to the hospital. Though it is stated that no bus facility was available, no attempt was made by the witnesses to take the victim-Murugan by any private vehicle, during the cross-examination, P.W.1-Kali had stated that the victim-Murugan after sustaining injuries, was lying at the scene of occurrence itself throughout the night. P.W.2-Ponnusamy had stated in the cross-examination that the victim Murugan was taken to the house of P.W.1-Kali and throughout the night, Murugan was made to lie in front of the house of P.W.1. P.W.3-Semalai Gounder, in the chief-examination, has stated that the victim-Murugan was kept at the scene of occurrence throughout the night. The evidence of P.Ws.1 to 3 on this aspect creates a doubt with regard to their presence at the time of occurrence. If P.Ws.1 to 3 had been present at the time of occurrence, immediately they would have taken some steps to take the victim-Murugan to the hospital, who sustained serious injuries on his hands. Even https://hcservices.ecourts.gov.in/hcservices/ according to P.W.1-Kali, TVS-50 vehicle was available in the village and that they are also owning two-wheeler. The answers given by P.Ws.1 to 3 for not taking the victim-Murugan to the hospital immediately are not convincing and that injured Murugan was lying at the scene of occurrence throughout the night leads to a possible conclusion that the victim-Murugan was seen by them only on the next day early morning. 10. P.W.6-Dr.Senthil of Tirupur Government Hospital was informed by P.W.1-Kali that the victim-Murugan was attacked by three known persons with unknown weapons. These particulars are also mentioned in Ex.P4-Accident Register extract that the victim was attacked by three known persons by unknown weapons near Salapalayam. The present case of the prosecution, as per the evidence of P.Ws.1 to 3 is that only two persons viz., accused Nos.1 and 2, have taken part in the occurrence and they attacked the victim-Murugan with M.O.3- Wooden Cot log. The prosecution is not in a position to explain as to why P.W.1-Kali had given such information to P.W.6-Dr.Senthil, which is the earliest narration available about the occurrence. Apart from that, though it is the case of the prosecution that only M.O.3-Wooden Cot log was used as a weapon in this case for causing the injuries sustained by the deceased-Murugan, according to P.W.6- Dr.Senthil, the injury on the head, mentioned as injury Nos.1 and 2 could have been caused by sharp-edged weapon. P.W.6- Dr.Senthil had further mentioned in his evidence that the total four injuries could have been caused by two different weapons. Though the victim-Murugan was treated for a period of 17 days as in-patient in Coimbatore Medical College Hospital, the prosecution has not examined the Doctor who gave treatment to Murugan and not produced the medical records from the said hospital. The prosecution has not elicited any opinion from P.W.7-Dr.Menaka Sekar as to whether the injuries on the head of the deceased could have been caused by M.O.3- Wooden cot log. In the abovesaid circumstances, it is not possible to hold that M.O.3-Wooden cot log alone could have been used to cause all the injuries sustained by the deceased-Murugan, as spoken to by the eye-witnesses viz., P.Ws.1 to 3. 11. The Police Station is only at a distance of 5 kilometers from the place of occurrence. None of the persons who had witnessed the occurrence had gone to the Police Station after the occurrence and only after getting intimation from the Tirupur Government Hospital Outpost Police Station, the Sub Inspector of Police, Uttukuli Police Station had gone to Tirupur Government Hospital. Though P.W.10-Sub Inspector Rajaravithangam had gone to Tirupur Government Hospital on being informed that victim-Murugan was taken to Coimbatore Medical College Hospital, he went there and having reached the hospital at 8.30 pm on 29.5.2006, he had received the complaint from P.W.1-Kali, the brother of deceased, only on the next day morning at 5.30 am. Though the deceased was in unconscious stage, P.W.10-Sub Inspector Rajaravithangam could have obtained the https://hcservices.ecourts.gov.in/hcservices/ complaint from P.W.1-Kali even at 8.30 pm on 29.5.2006 when he reached the hospital. The victim-Murugan was admitted in the Coimbatore Medical College Hospital at 2.53 pm on 29.5.2006 and according to P.W.1-Kali, the Police had come to the hospital within two hours from the time of admission of the deceased in the hospital. These aspects throw considerable doubt with regard to the manner in which the First Information Report was prepared. As already seen, there was a delay of 36 hours in preparing the First Information Report and in the said circumstances, the First Information Report itself is doubtful. 12. Even though P.W.3 is claimed to be an independent eye- witness by the prosecution, it is not possible for this Court to accept his evidence in view of other reasons given above in this case. He is only a chance witness. P.Ws.1 and 2 are coolie workers in his field. Further it is not always possible to say why a witness deposes falsely against the accused. 13. For the abovesaid reasons, we hold that the prosecution has not established its case beyond all reasonable doubt against the accused Nos.1 and 2. 14. In the result, the appeal is allowed, setting aside the conviction and sentence imposed on the appellants/accused Nos.1 and 2 and they are acquitted of all the charges. The appellants/accused Nos.1 and 2 are directed to be released forthwith, unless they are required in connection with any other case. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar Pb/vks To 1.The Addl. District and Sessions Judge (Fast Track Court No.I), Erode. 2. -do- the Principal District Judge, Erode. 3. The Inspector of Police, Uthukuli Police Station, Erode District. 4.The Superintendent of Central Prison, Coimbatore. https://hcservices.ecourts.gov.in/hcservices/ 5.The Public Prosecutor, High Court, Madras. 6.The District Munsif cum Judicial Magistrate, Perundurai 7.-Do- thro the Chief Judicial Magistrate, Erode. 8.The District Collector, Erode District, Erode. 9.The Director General of Police, Mylapore, Chennai-4. 1 CC To Mr.A.K.Kumarasamy, Advocate, SR NO.8676 CRL. APPEAL NO.870 OF 2007 kg(co) pmk/26.3.2009. https://hcservices.ecourts.gov.in/hcservices/