IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 17.12.2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE S.RAJESWARAN CRIMINAL APPEAL NO.77 OF 2008 1.Panneer @ Thachinamurthy 2.Arul 3.Raju @ Chakravarthy .. Appellants/Accused 1 to 3 Vs. The State rep. by Inspector of Police, Vanur Police Station, Vizhupuram District .. Respondent/Complainant (Cr.No.128/2006) This criminal appeal has been preferred under Section 374(2) Cr.P.C. against the judgment of the learned Additional District and Sessions Judge, Fast Track Court No.II, Tindivanam made in S.C.No.68 of 2007, dated 4.1.2008. For Appellants : Mr.V.Gopinath, SC for Mr.L.Mahendran For Respondent : Mr.P.Kumaresan, APP JUDGMENT (The judgment of the court was delivered by M.CHOCKALINGAM, J.) Challenge is made to the judgment of the Additional District and Sessions Division, Fast Track Court No.II, Tindivanam made in S.C.No.68 of 2007, whereby the appellants three in number stood charged under Sections 341 and 302 IPC and A-2 was also charged under Sections 323 and 325 IPC and A-3 was also charged under Section 323 (2 counts) IPC and tried. On trial A-1 was found guilty under Sections 341 and 302 IPC, A-2 was found guilty under Sections 341, 302, 323 and 325 IPC and A-3 was found guilty under Sections 341, 302 and 323 (2 counts) IPC. A-1 to A-3 were sentenced to pay a fine of Rs.500/- each in default to undergo one week S.I. each under Section 341 IPC. A-1 to A-3 were further sentenced to undergo life imprisonment each and to pay a fine of Rs.2000/- each, in default to undergo 6 months R.I. under Section 302 IPC. A-2 was directed to undergo 6 months R.I. and to pay a fine of Rs.1000/-, in default to undergo 3 months R.I. under Section 325 IPC. Further, A-2 for https://hcservices.ecourts.gov.in/hcservices/ the offence under Section 323 IPC and A-3 for the offence under Section 323 (2 counts) IPC were sentenced to pay a fine of Rs.500/- for each count, in default to undergo 2 months R.I. for each count. The sentences were ordered to run concurrently. 2.The short facts necessary for the disposal of this appeal can be stated as follows: a)The deceased Vijayan is the son of one Ranganatha Gounder, who had three brothers, namely Perumal, Parasuraman and Arumugam. P.W.5 is the son of the said Arumugam. All the three accused are the sons of Parasuraman. P.W.1 is the brother of the deceased. P.W.2 is the mother of P.W.1. P.W.3 is the wife of Perumal. On 20.03.2006, the cattle of Parasuraman, examined as D.W.7, were grazing in the land of Arumugam and the members of Parasuraman family beat Arumugam on 20.3.2006. Again P.W.5 was beat by the members of Parasuraman family on 23.10.2006 at 4.30 p.m. When it came to the knowledge of P.W.1, he along with P.W.4 proceeded to the place to enquire about the same. Further, when it came to the knowledge of P.Ws.2 and 3, they also came near the place of occurrence at 5.30 p.m. At that time, the deceased Vijayan was coming in his motor cycle near the place of occurrence. He was restrained by A-1 to A-3, who were armed with wooden logs and they attacked the deceased indiscriminately. When P.Ws.2 and 3 intervened, A-1 to A-3 beat them and caused injuries to them. A-2 and A-3 went away from the place of occurrence and A-1 also took away the motor bike of the deceased. b)P.Ws.2 and 3 went to the Government General Hospital, Pondicherry, while P.Ws.1 and 4 took the severely injured Vijayan to the Government General Hospital, Pondicherry, where the Doctor, who examined the said Vijayan, declared him dead. P.Ws.2 and 3 were admitted as inpatient. P.W.1 came to Vanur Police Station and gave a written complaint Ex.P.1 to P.W.17, the Sub Inspector of Police, who registered the case in Crime No.238 of 2006 under Sections 341, 323, 324 and 302 IPC. Ex.P.13, the F.I.R. was despatched to the Judicial Magistrate concerned. c)P.W.18, the Inspector of Police, on receipt of the copy of the F.I.R., took up the investigation, proceeded to the spot and made an inspection in the presence of the witnesses. He prepared Ex.P.2, the observation mahazar and Ex.P.15, the rough sketch. He also conducted inquest on the dead body of the deceased in the presence of the witnesses and panchayatdars and prepared Ex.P.14, the inquest report. Then, the dead body was sent for the purpose of post-mortem. d)P.W.13, the Doctor attached to the Government Hospital, Puducherry, on receipt of the requisition, has conducted autopsy on the dead body of the deceased and has issued Ex.P.8, the post-mortem certificate, wherein he has opined that the deceased would appear to have died of shock and haemorrhage due to the injuries sustained. P.Ws.2 and 3 were examined by P.W.12, the Doctor. Ex.P.6 is the accident register in respect of P.W.3 and Ex.P.7 is the accident register in respect of P.W.2. P.W.5 was examined by P.W.11, the Doctor, who has issued Ex.P.5, the accident register. e)Pending investigation, P.W.18 arrested A-2 and A-3 on 25.10.2006 and they have come forward to give confessional statements, which were recorded in the presence of the witnesses. The admissible portion of confessional statement of A-2 was marked as Ex.P.3. Pursuant to the same, A-2 produced M.O.1 (series) wooden logs, which were recovered https://hcservices.ecourts.gov.in/hcservices/ under a cover of mahazar. A-1 was also arrested on 01.11.2006 and was remanded to judicial custody. All the material objects were subjected to chemical analysis by the Forensic Science Department, which resulted in Ex.P.11, the Serologist's report. On completion of the investigation, the Investigating Officer has filed the final report. 3.The case was committed to the Court of Sessions and necessary charges were framed. In order to substantiate the charges levelled against the accused, the prosecution examined 19 witnesses and also relied on 17 exhibits and 4 M.Os. On completion of the evidence on the side of the prosecution, the accused were questioned under Section 313 Cr.P.C. as to the incriminating circumstances found in the evidence of prosecution witnesses, which they flatly denied as false. On the side of the defence, 7 witnesses were examined and 9 documents were marked. On completion of the evidence on both sides, the trial court heard the arguments advanced and took the view that the prosecution has proved the case beyond reasonable doubt and has found them guilty and awarded punishments as referred to above. Hence this appeal has arisen at the instance of the appellants. 4.Advancing arguments on behalf of the appellants, the learned Senior Counsel has made the following submissions: a)The occurrence has taken place on 23.10.2006 at 5.00 p.m. P.Ws.1 to 4 were examined as eyewitnesses, out of whom, P.Ws.2 and 3 were shown as injured witnesses. According to the prosecution, an hour earlier to the occurrence, P.W.5 was injured in an incident. It is highly doubtful whether Ex.P.1 has come into existence as put forth by the prosecution. Apart from that, there was an undue delay in giving the complaint. The occurrence has taken place at 5.00 p.m. and the police station is situated just 3 Kms. from the place of occurrence, but the case was registered at about 10.00 p.m. All the witnesses have admitted that the police station is situated on the way to the hospital. b)According to P.W.1, not only the police station is situated on the way, but the JIPMER hospital is also situated. A suggestion was put that the father of the accused was actually taken treatment in the JIPMER hospital and therefore, they did not go to that hospital. The prosecution has shown P.Ws.2 and 3 as injured witnesses and they have thoroughly suppressed the genesis of the occurrence. According to P.W.17, the Sub Inspector of Police, Ex.P.1, report was given at 10.00 p.m., but number of contradictory statements were there. c)According to P.W.3, within half an hour from the time of occurrence at about 5.30 p.m., the police people came to the hospital. According to P.W.2, on the way, they went to the police station and informed about the occurrence and the police asked them to go to the hospital. According to P.W.6, at about 6.00 p.m. or 7.00 p.m. on 23.10.2006, the police people came to the village. Apart from that, P.W.4 has stated that on the way to the hospital, they went to the police station, got down and narrated the incident and the police advised them to go to the hospital and hence they left. All would go to show that the matter was brought to the notice of the police and the information was given at about 6.00 or 7.00 p.m. Hence the claim of the prosecution that Ex.P.1 was given at 10.00 p.m. and pursuant to the same, the case has been registered cannot be believed. It is pertinent https://hcservices.ecourts.gov.in/hcservices/ to point out that it is a case where all embellishments and improvements have been done, suppressing the real state of affairs. Thus, it is highly doubtful whether Ex.P.1 has come into existence as put forth by the prosecution and it is also a case where the original information has been suppressed. d)The learned Senior Counsel would further add that in the instant case, the genesis of the occurrence has not been brought to the notice of the court. It is admitted by the Investigator that A-2 and A-3 were arrested on 25.10.2006. From their statements, it would be quite clear that the deceased Vijayan came in the motorbike and dashed against A-1, who also sustained injuries. Even after the statement of A-2 and A-3, no case was registered, but they were sent for judicial remand. Equally, when A-1 was arrested on 01.11.2006, it was also brought to the notice of the police, which fact is admitted by the Investigator, but he was sent for judicial remand. It is admitted by the Investigator that he was not taken to judicial custody, but was admitted at the Government Hospital, Cuddalore, where he was given treatment from 01.11.2006 to 18.11.2006. In order to substantiate that he sustained injuries and he was given treatment from 24.10.2006 to 18.11.2006, the defence has examined D.Ws.1,2,3 and 5. D.W.1 was the private Doctor. According to him, on 24.10.2006, he gave treatment to A-1 for the fracture sustained on his right leg. D.W.2 was the Doctor attached to Cuddalore Jail. D.W.5 was the Doctor, who gave treatment to A-1 at Cuddalore Government Hospital from 01.11.2006. This would clearly indicate that he was all along under treatment and further, he got fracture on his right leg. The medical opinion was also canvassed through the Doctors, who gave treatment and wound certificate was also marked. But, the Investigator has categorically stated that no one witnesses on the side of the prosecution gave any statement as to the injuries sustained by A-1. It is a case where the respondent police has failed not only in registering the case, but also in securing the documents or records pertaining to the injuries sustained to A-1. Further, all the materials were suppressed before the court. Thus, the trial court was not in a position to take a correct decision, since the genesis of the occurrence was suppressed. Under these circumstances, the prosecution has miserably failed. e)It is true, there are four eyewitnesses and P.Ws.2 and 3 were shown as injured witnesses. Merely because they sustained injuries, the conviction cannot be sustained. The prosecution has failed to bring home the guilt of the accused by placing all true facts and all necessary evidence before the court. Thus, all the above facts would indicate that the prosecution was lack in evidence and it did not place all the materials before the court. The trial court has taken an erroneous view and found the accused guilty and hence the judgment of the trial court has got to be set aside and the appellants herein are entitled for acquittal in the hands of this court. 5.The court heard the learned Additional Public Prosecutor on the above contentions and has paid its anxious consideration on the submissions made. 6.It is not in controversy that one Vijayan was done to death in an incident that took place at 5.00 p.m. on 23.10.2006. Following the inquest made by the Investigating Officer and the preparation of the https://hcservices.ecourts.gov.in/hcservices/ inquest report, the dead body was subjected to post-mortem by P.W.13, the Doctor, who has categorically opined that the deceased would appear to have died of the injuries sustained and he has also issued Ex.P.8, the post-mortem certificate, to that effect. The fact that the deceased died out of homicidal violence was not disputed by the appellants before the trial court. Hence without any impediment, it can be recorded so. 7.In the instant case, in order to substantiate the charges, the prosecution examined four witnesses as eyewitnesses, who are P.Ws.1 to 4, out of whom, P.Ws.2 and 3 were shown as injured witnesses. The court is mindful of caution made by the settled principles of law that in a given case like this where the eyewitnesses happened to be the injured witnesses, the court should not discard their testimony unless and until strong circumstances are brought to the notice of the court or reasons are brought about. In the instant case, though the prosecution examined four eyewitnesses, out of whom two were the injured witnesses, the court is afraid whether it can sustain conviction as done by the trial court, after the materials available are carefully scrutinized. 8.In the instant case, the occurrence has taken place at 5.00 p.m. on 23.10.2006 in the main road. According to P.Ws.1 to 4, they witnessed the occurrence. According to the prosecution, the first information was given at about 10.00 p.m. Admittedly, the police station is situated 3 Kms. from the place of occurrence. But, there was interval for 5 hours. Under these circumstances, the prosecution was duty bound to explain for such a huge delay. It is not that the court is unmindful of the settled principles of law and merely because the delay is noticed, the case of the prosecution cannot be rejected. But, in the instant case, there are certain telling factors and not only delay is caused, but also it is doubtful whether Ex.P.1 could have been the first information. 9.All the witnesses have spoken that the police station is situated on the way to the hospital. P.W.4 has deposed that on the way, they got down at the police station and gave information to the police and the police advised them to go to the hospital directly, but the other witnesses have deposed that they did not go to the police station at all. According to P.W.3, they went to the hospital and within half an hour, the police came there and examined him. P.W.6 has deposed that at about 6.00 or 7.00 p.m., the police came to the village. All would go to show that the fact that the complaint was given at 10.00 p.m. cannot be accepted. It is a case where all improvements and embellishments could have been made, which cannot be ruled out. 10.In the instant case, the court is of the considered opinion, on scrutiny of the materials available, that genesis of the occurrence was not brought to the notice of the court by the prosecution. The occurrence has taken place at 5.00 p.m. on 23.10.2006. The Investigator has categorically deposed that on arrest of A-2 and A-3 on 25.10.2006, he came to know that at the time of occurrence, the deceased came in the motorbike and dashed against A-1, in which process, A-1 also sustained injuries. Though it was brought to the notice, no complaint was taken from them nor a case was registered. On the contrary, they were sent for judicial remand on arrest. Equally, A-1 was arrested on 01.11.2006. After arrest, he was sent for judicial remand. According to the https://hcservices.ecourts.gov.in/hcservices/ Investigator, even after the orders were passed, he was not taken to jail, but he was actually taken to the Government Hospital, Cuddalore and was taken treatment from 01.11.2006 to 18.11.2006. In order to prove that A-1 sustained injuries in the same transaction, D.Ws.1,2,3 and 5 were examined. D.W.1 was the private Doctor, who gave treatment to the first accused on 24.10.2006. D.W.2 was the Jail Doctor. D.W.5 was the Doctor attached to Cuddalore Government Hospital, who gave treatment to A-1 from 01.11.2006 to 18.11.2006 when he was admitted as inpatient. The wound certificate and the case diary were also marked in this regard. A perusal of the documents would clearly indicate that A-1 sustained fracture. It is not a case of the prosecution that A-1 sustained injuries in a different transaction, but A-1 sustained injuries in the same transaction and that too by the act of the deceased, which fact was brought to the notice of the Investigator even on 25.10.2006 itself, but no steps have been taken and no investigation was done in this regard and not even a material was recovered or produced before the court. All would go to show that the Investigator was not prepared to place all necessary materials before the court to arrive at a correct decision. 11.In the instant case, when the defence was able to show that the deceased came in the motor bike and dashed against A-1 and caused injuries and also fracture on his right leg and sufficient materials were produced through the medical persons along with the wound certificate, a duty is cast upon the prosecution to explain those injuries. On the contrary, the Investigator has categorically admitted that no one witness on the side of the prosecution explained those injuries. In short, it can be stated that there was delay in giving the complaint. The first information is also highly doubtful as to whether it came into existence as put forth by the prosecution. The genesis of the occurrence has also been suppressed. Under these circumstances, the court is of the considered opinion that though P.Ws.2 and 3 were focussed as injured witnesses, in the opinion of the court, it would be highly unsafe to sustain conviction. Hence the judgment of the trial court has got to be made undone only by upsetting the same. 12.Accordingly, the judgment of conviction and sentence imposed on the appellants by the trial court is set aside and the appellants are acquitted of the charges levelled against them. They are directed to be released forthwith unless their presence is required in connection with any other case. The fine amount if any paid by them shall be refunded to them. Accordingly, this criminal appeal is allowed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar vvk https://hcservices.ecourts.gov.in/hcservices/ To 1.The Additional District and Sessions Judge, Fast Track Court No.II, Tindivanam. 2. -do- Through The Principal District Judge, Villupuram. 3. The Judicial Magistrate, Vanur. 4. -do- Through The Chief Judicial Magistrate, Villupuram. 5. The Superintendent, Central Prison, Cuddalore. 6. The District Collector, Villupuram. 7. The Director General of Police, Mylapore, Chennai - 4. 8.The Inspector of Police, Vanur Police Station, Vizhupuram District. 9.The Additional Public Prosecutor, High Court, Madras. 1 cc To Mr.L.Mahendran, Advocate, SR.70941. CRL.A.NO.77 OF 2008 RSM(CO) RVL 24.12.2008 https://hcservices.ecourts.gov.in/hcservices/