Kumar vs State Rep. By Inspector Of Police

2. The prosecution story in a nut shell begins with an earlier scuffle between the accused and deceased (Sakthivel), while watching a street play conducted during a village festival. It is alleged that the accused-appellant was rebuked by the deceased for sitting next to ladies. In this context, on 20.08.2009, at about 6:00 PM the accused came to the spot where Rajendran (PW-1), Arumugham (PW-2) and Subramani (PW-3) were savoring idliis from the stall of Sumathi (PW-4), when the accused-appellant arrived with an intention to draw out Sakthivel (deceased), by picking up a quarrel with Rajendran (PW-1), who was his brother-in-law. Accordingly, the accused-appellant arming himself with a wooden log lying nearby, assaulted Arumugham (PW-2), who came to the rescue. At that moment the Sakthivel (deceased) is supposed to have intervened. Seeing him, the accused barged on Sakthivel claiming to finish him while kicking and pushing him into the water canal. When he tried to climb up from the canal, the accused hit him with a wooden log on his head. The 2 villagers present at the spot, then prevented the accused while assaulting him on his head, thereby causing injuries to the accused. Thereafter, both the injured Sakthivel and accused were shifted to the Government Hospital, Pudukottai in an ambulance. Ultimately the Sakthivel succumbed to the injuries before reaching the Hospital.

3. Sub-Inspector Ramaswamy—PW-23 registered an FIR (Ext.

P1) against the accused for the offences punishable under Sections 302 and 324 of IPC in Crime No. 47 of 2009. Circle Inspector Subhakumar—PW-24, undertook the investigation, visited the place of occurrence, prepared observation mahazar and drew the rough sketch (Ext. P7). The alleged weapon (wooden log—stick) (Ext. P8) used in the administration of crime was recovered from the spot. On the next day, he conducted inquest vide report (Ext.P9) and dead body of the deceased Sakthivel was sent for postmortem. Subsequently, the accused—appellant was reported to be arrested on 22 nd August, 2009. The I.O. recorded the statements of Dr. Lavanya, the Doctor, who treated PW-2 (Arumugham), and Dr. Illayaraja, who conducted postmortem of the deceased. Thereafter the 3 authorities seized the clothes of the deceased reported in the seizure report being M.O.4 to M.O.6. After completing the investigation, the I.O. submitted his report to the learned District Munsif-cum-Judicial Magistrate levelling charges against the accused for the offences punishable under Sections 324 and 302 of IPC. The learned Judicial Magistrate in turn committed the case to the Sessions Court. The accused pleaded not guilty and claimed to be tried.

4. The Sessions court by order, dated 07.10.2013, awarded conviction to the accused and directed him to suffer rigorous imprisonment for life for the offence under Section 302 of IPC and to pay a fine of Rs. 5,000/-, in default of payment of fine, to further suffer an imprisonment for a period of one year. The accused was also sentenced to suffer rigorous imprisonment for a period of one year for the offence under Section 324 of IPC. Both the sentences were however directed to run concurrently. The main reasons given by the trail court for maintaining the conviction against the appellant-accused are-

iv. That the injury on the accused has been attributed to a scuffle between the deceased and the crowd, which stands corroborated by the witness, statement of PW-2, PW-3 and PW-5.

7. The main thrust of argument by the learned counsel for the appellant is that the entire prosecution case is a fabricated in such a way so as to implicate the appellant in the case as culprit. The real circumstances of the case have been concealed by the prosecution in order to help the complainant. Even the motive projected by the prosecution is false. There was no complaint lodged by the deceased or his wife against the accused, which itself proves that the motive ascribed to be the alleged verbal spat between the deceased and accused at the drama in the village on the eve of Kaliamman temple festival. Secondly, there was huge delay in registering the FIR and the delay was caused only to implicate the appellant. On the fateful day i.e. 20.8.2009 at about 6:23 P.M. police got the information about the occurrence, but no FIR was lodged. At about 7:30 P.M. police visited the spot, conducted enquiry, suspected PWs 1 to 3 to be the real culprits and took them into their custody. 6 Even PW2 informed police that he received injuries due to the attack made by the deceased. The appellant has also injured in the fight at the hands of deceased. But, police did not register the complaint on the basis of actual occurrence, and the courts below failed to appreciate the true aspects of the case particularly non-explanation by the prosecution as to the injuries sustained by the accused. Thereafter, the accused—appellant and deceased were sent to the hospital in same ambulance and till the discharge of the appellant from hospital, police did not suspect him as a culprit. It is only thereafter, police in connivance with complainant cooked up a case against the appellant, the complaint was suitably prepared and FIR (Ext. P1) registered. Even at the time of framing charges against the accused a charge under Section, 323, IPC was first charged but the trial Court convicted the appellant under Section 324, IPC. The trial Court as well as the High Court failed to notice the suppression of facts by the prosecution and came to a wrong conclusion without appreciating the evidence in accordance with settled principles of law, and thereby 7 rendered a perverse judgment which is required to be set aside by the interference of this Court.

17. In his evidence, PW19—Balasundaram has also stated categorically that the ambulance came to the place of occurrence after the arrival of police and they seized the wooden log. According to him doctors declared the death of Sakthivel at about 8.45 p.m. and Rajendran—complainant— PW1 was not present at that time, but Inspector, 12 Sub-Inspector and Head Constable were present who examined him and PW15, but did not obtain his signature.

Immediately after the occurrence, Udayalipatti police came to the place of occurrence and enquired about the incident and get my signature after recording my statement. They recorded my statement, before the arrival of 108 ambulance and before we took Sakthivel and Kumar. At the time, rajendra was also presented and the police recorded his statement and obtained his signature. The police examined me only prior to the arrival of 108 ambulance and never examined me after the arrival of 108 ambulance.

26. The criminal justice must be above reproach. It is irrelevant whether the falsity lie in the statement of witnesses or the guilt of the accused. The investigative authority has a responsibility to investigate in a fair manner and elicit truth. At the cost of repetition, I must remind the concerned authorities to take up the investigation in a neutral manner, without having regards to the ultimate result. In this case at 18 hand, we cannot close our eyes to what has happened;

34. Taking stock of the circumstances and depositions of prosecution witnesses in this case, it would be difficult to hold that prosecution has laid the case on real circumstances and proved its case beyond reasonable doubt. We are surprised at the way in which Courts below have perceived the facts and circumstances of this case. We are not in agreement with the views drawn by the trial Court as well as the High Court while dealing with the matter.

35. Normally this Court does not interfere with the concurrent findings recorded by the Courts below, but in this case we find certain exceptional circumstances as narrated above, considering these aspects we feel that this is a fit case for 24 our interference. In our opinion, instead of dealing with the intrinsic merits of the evidence of witnesses, both the Courts below have acted perversely. Once we arrive at the conclusion that we cannot lend credence to the genuineness of the F.I.R. and the prosecution case, there is no need of further enquiry as the assertion made by the prosecution are not proved beyond reasonable doubt. In the peculiar facts and circumstances of the case, definitely the benefit of doubt goes to the accused—appellant. Viewed in that angle, the judgments of the Courts below awarding conviction and sentence to the accused—appellant requires to be set aside.

36. In the result, the appeal is allowed and the conviction and sentence awarded by the Courts below is set aside. The accused—appellant stands acquitted from all the charges levelled against him. The appellant is stated to be in jail. He may be set at liberty forthwith, if not required in any other case.