Crl.R.C.No.1073 of 2002:
Prayer in Crl.A.474/02: Criminal Appeal filed under Section 374 of Crl.P.C. against the conviction imposed on the appellants under
Section 324 I.P.C. and sentencing the 1st appellant on two counts each for a period of three years rigorous imprisonment and fine of Rs.2,000/- on each count and in default, to undergo six months rigorous imprisonment on each count and sentencing the 2nd and 3rd appellants to undergo rigorous imprisonment for a period of three years and fine of Rs.2,000/- and in default, to undergo six months rigorous imprisonment passed by the Additional District Judge, Fast Track Court No.2, Salem made in S.C.No.32 of 1999, dated 22.02.2002.
Prayer in Crl.R.C.No.1073/02: Criminal Revision filed under
Sections 397 and
401 of Cr.P.C. against the order of acquittal passed against the respondents 1 to 11, in respect of the charge framed against them by Judgment dated 22.02.2002 passed in S.C.No.32 of 1999 by the Additional District Sessions Judge, Fast Track Court No.2, Salem and prays to set aside the order of acquittal passed under
Section 235(1) of Cr.P.C. and order of re-trial of the case.
Crl.A.No.474 of 2002 For Appellants : Mr.N.Anand Venkatesh For Respondent : Mr.J.C.Durairaj, Government Advocate (Crl.Side)
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For Petitioner : Ms.Jayasri Baskar Mr.N.Anand Venkatesh For Respondents : Mr.J.C.Durairaj, Government Advocate (Crl.Side)
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COMMON JUDGMENT The appellants in criminal appeal No.474 of 2002, who are the Accused Nos.3, 4 and 5 in Sessions Case No.32 of 1999 on the file of the learned Additional Sessions Judge, Fast Track Court No.2, Salem, stand convicted for an offence under
Section 324 IPC (1st appellant alone for two counts) and sentenced to undergo for a period of three years rigorous imprisonment and to pay a fine of Rs.2,000/- and in default, to undergo for a further period of six months rigorous imprisonment.
2. Aggrieved by the said conviction and sentence, the appellants/accused Nos.3, 4 and 5 have preferred the above criminal appeal.
3. Totally there were 11 accused in this case and the other accused have been acquitted by the Trial Court. Aggrieved by the order of acquittal passed against the accused Nos.1, 2, 6 to 11 and also the acquittal of all the accused from the charge under
Section 302 I.P.C. read with
Section 34 I.P.C., P.W.1 in this case the petitioner herein has preferred a criminal revision case.
4. The case of the prosecution, in brief, is as follows:-
There was some land dispute between the accused party and the deceased party. The deceased Velayutham is related to P.W.1. Four years prior to the occurrence, a dispute arose between the deceased Velayutham and the accused and a panchayat was also convened. Further, there was some money transaction between P.W.3 and the accused and there was a dispute in respect of it. On 03.10.1995, at about 3.00 p.m. all the accused joined together forming unlawful assembly went to attack. 4th accused attacked P.W.1 with brick on his chest. 3rd accused also attacked him on the left chest. Then, at that time the deceased Velayutham came and intervened, 6th accused attacked him with a crowbar on his left side head. 5th accused also attacked him with a crowbar on his right side head. 9th accused-Rosi attacked P.W.2 on his thigh with a crowbar. Then, P.Ws.1, 2 and others pushed the accused down and the accused left the scene of occurrence. The injured victims and the deceased Velayutham were taken to the hospital.
(ii) P.W.8-Dr.Kanagarathinam examined P.W.1-Sellappan and noticed the following injury:-
"Contusion 4 x 3 cm on the right side chest C/o. body pain injuries is simple in nature".
Ex.P.6 is the wound certificate issued by him.
(iii) P.W.8-Dr.Kanagarathinam examined P.W.2-Alagesan and noticed the following injuries:-
"1. A lacerated injuries right cheek 2 x 2 x 1 cm 2. C/o. Chest pain and 3. Contusion 5 x 5 cm right thigh and C/o. Severe pain on the through thigh". Ex.P.7 is the wound certificate issued by him. (iv) P.W.8-Dr.Kanagarathinam also examined the deceased Velayutham and noticed the following injuries:- "1. A lacerated injury 7cm x 5cm x 1cm on the left parietal region of scalp 2. A lacerated injury 2cm x 1cm x 1cm on the right chest and 3. A lacerated injury 3cm x 2cm x 1cm on the right eyebrow." Ex.P.8 is the accident register issued by him.
(v) P.W.12-Ponnusamy was the Head Constable of Tharamangalam police station. On 03.10.1995, at about 8.00 p.m, he received a message from Omalur police station and went to Salem Mohan Kumaramangalam hospital and received a complaint from P.W.1 under Ex.P.1. Then he came back to Tharamangalam police station and registered a case in Crime No.441 of 1995 for the offences under
Sections 147,148,324,323 and
506(ii) I.P.C. and prepared Ex.P.17, First Information Report. On 04.10.1995, at about 6.00 a.m., he went to scene of occurrence and prepared Exs.P.2 and P.3, Observation Mahazars and Ex.P.18, Rough Sketch in the presence of witnesses. From the scene of occurrence, he recovered M.Os.1 to 6 in the presence of witnesses Kandasamy and Eswaran. Then, he recovered M.Os.10 to 12 from the deceased Velayutham in the presence of witness P.W.1 under Ex.P.19. On the same day, he received a complaint from the fourth accused Jayavelu under Ex.P.20 and registered a case in Crime No.442 of 1995 for the offences under
Sections 147,148,324 and
323 I.P.C. and prepared Ex.P.21, First Information Report. The deceased Velayutham, who was admitted in the Salem hospital, died on 04.10.1995 at about 12.00 p.m.
(vi) P.W.13-Sundarrajan, who was the Sub-Inspector of Police at Tharamangalam police station at the relevant point of time, received the death intimation under Ex.P.22 from the Salem Government Hospital. Then, he altered the case into one under
Section 302 I.P.C. and prepared the Express F.I.R. under Ex.P.23.
(vii) The Inspector of Police by name Kulam Isthakeer took up the investigation and he went to the scene of occurrence and examined the witnesses. He held inquest on the body of the deceased Velayutham in the presence of panchayatars and prepared Ex.P.26, Inquest Report. He sent the body for post-mortem examination.
(viii) P.W.9-Dr.Karthikeyan received a requisition letter under Ex.P.10 from the Inspector of Police, Tharamangalam police station and conducted autopsy on the body of the deceased Velayutham on 05.10.1995 at about 12.00 p.m. and he found the following injuries:-
"i) Dark brown colour abrasions with underlying bruising dark red, on the outer aspect of upper 3rd of right arm, 6cm x 1.5cm x 0.5 cm on the back of right elbow, 2cm x 1cm x 0.5 cm.
ii) Lacerated wounds with intact sutures on the outer part of right eyebrow, 2cm x 0.5cm x bone deep, on the right maxilla 2 in number each measuring 1cm x 0.5 cm bone deep, on the left parietal region of the scalp 9cm x 0.5 cm x bone deep. On removal of the sutures edges are irregular.
iii) Subscalpular bruising of left parietal 7cm x 5cm, left temporal 9cm x 6cm. The left temporalis muscle is found bruised.
iv) A fissured fracture of left tempero parietal bones to a length of 11 cm.
v) 75 gms of extra dural haemotama on the left temporal and perietal lobes of cerebrum.
vi) Diffused subdural haematoma on the right cerabral hemisphere.
vii) Subarachnoid hemorrhage on both parietal lobes.
Viii) Fracture of floor of left middle cranial fossa, communicates with the external fracture.
ix) Bony brusing of floor of anterior cranial fossa, 3cm x 2cm."
Ex.P.11 is the Post-mortem Certificate issued by P.W.9-Dr.Karthikeyan. He opined that the deceased died due to Cranio Cerebral Injuries.
(ix) As the Inspector of Police viz., Kulam Isthakeer died pending trial, P.W.14-Karunakaran, the Inspector of Police took up further investigation and who was acquainted with the hand writing of the Inspector of Police kulam Isthakeer, who had given evidence before the Court. On 03.01.1997, he went to Omalur Government Hospital and received the accident registers of P.Ws.1 and 2 and enquired the Dr.Kanagarathinam and recorded his statement. He also enquired the Post-mortem Doctor Karthikeyan and recorded his statement. After completion of the investigation, he filed a final report on 04.01.1997 for the offences under
Sections 147,148,323,324 and
302 r/w. 34 I.P.C. against the accused.
5. To prove the case, the prosecution examined P.Ws.1 to 14; marked Exs.P.1 to P.26 and produced M.Os.1. to 12. During the course of cross-examination of witnesses, the defence has chosen to mark three documents as Exs.D.1 to 3.
6. The accused were questioned under
Section 313 Cr.P.C. with regard to the incriminating circumstances and they denied their complicity. The third accused filed a written statement.
7. The Trial Court, after considering the oral and documentary evidence, convicted the accused Nos.3, 4 and 5 alone for the offences as stated above.
8. The learned counsel for the appellants/accused submits that the Trial Court has erred in convicting the accused Nos.3, 4 and 5 alone having acquitted the other accused. He also submits that it is a case in counter and the accused Nos.3 and 5 were seriously injured and the Trial Court has failed to take into consideration the injury sustained by the accused Nos.3 and 5 and the prosecution has not properly explained. The learned counsel for the appellants/accused further submits that a complaint was also given by the fourth accused and on the basis of the complaint, no investigation was done and even the accident registers of A-3 and A-4 have been marked by the defence as Exs.D.2 and D.3. The learned counsel for the appellants/accused also relied on the decision of the Hon'ble Supreme Court reported in (2008) 1 MLJ (Crl.) 1369 (SC) (Babu Ram and Others v. State of Punjab).
9. Per contra, the learned Government Advocate (Crl.Side) submits that P.Ws.1 and 2 are the injured witnesses and their evidence is corroborated by medical evidence. P.Ws.1 and 2 have spoken about the attack made by the accused on them and also the attack on the deceased. The learned Government Advocate (Crl.Side) further submits that the acquittal of the other accused by the Trial Court would not affect the conviction on the accused Nos.3, 4 and 5.
10. The learned Counsel for the petitioner in Crl.R.C.No.1073 of 2002 submits that P.Ws.1 and 2 have specifically stated about the presence of all the accused and as such, the unlawful assembly is established and all the accused ought to have been convicted under
Section 302 read with 149 I.P.C. But, the Trial Court has acquitted all the accused under
Section 302 read with 34 I.P.C. The learned counsel for the petitioner further submits that the injuries sustained by the accused has been explained by the witnesses and even in the complaint-Ex.P.1, it is stated that the prosecution witnesses pushed the accused down and in that course, they have sustained injuries and as such, it cannot be said that the prosecution has not properly explained the injuries sustained by the accused. She also submitted that even if the injuries on accused not explained, it is not a ground for acquitting the accused and relied on the decision of the Hon'ble Supreme Court reported in 2007(2) SCC (Crl.) 214 (Krishnan and others v. State of Haryana).
11. This Court considered the submissions made by all the parties and perused the records carefully.
12. According to the prosecution case, there was a land dispute between the prosecution witnesses and the accused party. According to the prosecution witnesses, the accused have came to the scene of occurrence and attacked P.Ws.1 and 2 and also the deceased with bricks and crowbar. Though P.Ws.1 to 4 and 6 are the eye witnesses, as parrot like repetition, they have spoken about the occurrence attributing the overt act on the accused. These witnesses had not spoken specifically about the injuries sustained by the accused Nos.3 and 4. In Ex.P.1, the complaint given by P.W.1, it is merely stated that the accused were pushed down. The injuries sustained by the accused are found in Exs.D.2 and D.3.
The injuries sustained by A.4-Jayavelu are as follows:-
"i) Laceration injury near the sagittall suture scalp 8cm x 4cm x 1cm.
ii) Lacerated injury 5cm x 4cm x bone deep on the right parietal region of scalp.
iii) Fracture 3cm seen on the right parietal bone.
Wound not sutured for purpose of Neuro Surgical (?) examination. (n.c.) bandage applied.
iv) Contusion right shoulder 5cm x 5cm
v) Contusion 6cm x 3cm on the back.
Contusion 5cm x 5cm on the left knee Multiple small abrasion on the back."
Ex.D.2 is the accident register given to him.
(ii) The injuries sustained by A.3-Jayapal are as follows:-
"i) Laceration injury 3cm x 2cm x 1cm on the occipital region of scalp. ii) Abrasion 3cm x = cm on the left side chest." Ex.D.3 is the accident register given to him.
13. Both the accused have sustained injury on their head and the fourth accused Jayavelu has sustained injury even on the right perietal bone. It cannot be said that on pushing by fall the accused, sustained those injuries. Further, A.4 has given a complaint to the police and the same was also registered in Crime No.442 of 1995. In spite of the registration of the counter case, the prosecution has not placed any materials regarding investigation in the said case before the Court.
14. It is not the case of the prosecution that the accused sustained injury at different occurrence. The time of occurrence mentioned in both the complaints are one and the same i.e., on 03.10.1995 at about 3.00 p.m.
15. In the decision of the Honourable Apex Court in Babu Ram and Anothers v. State of Punjab reported in (2008)1 MLJ (Crl.) 1369 (SC), it has been observed in paragraphs 18 and 19 as follows:
"18. It is a well-settled law that in a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following inferences:-
1. that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;
2. that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;
3. that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. [See Lakshmi Singh v. State of Bihar; AIR 1976 SC 2263 : (1976) 4 SCC 394 : (1976) SCC (Cr) 671
19. Further, it is important to point out that the omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which completes in probability with that of the prosecution one."
16. In the decision relied on by the learned counsel for the revision petitioner in Krishnan and others v. State of Haryana reported in 2007(2) SCC (Crl.) 214, it is observed that "it is well-settled that merely because prosecution has failed to explain the injuries of the accused, the same cannot be a solitary ground for doubting the prosecution case, if otherwise, evidence relied upon is found to be credible."
17. In the decision of the Honourable Supreme Court in State of Uttar Pradesh v. Gajey Singh and another reported in 2009(3) SCALE 337, in which, it has been observed in Paragraph No.32 as follows:
"32. A three-Judge Bench of this Court in Abdul Rashid Abdul Rahiman Patel & Others v. State of Maharashtra (2007) 9 SCC 1, observed that it is well settled that if injuries on the defence are not explained by the prosecution, the same may be taken to be a ground to discard the prosecution case, in case the truthfulness of prosecution case is otherwise doubted. But in cases like the present one, where there is consistent evidence of the injured eyewitnesses apart from evidence of independent eyewitnesses, even if it assumed that the prosecution has failed to explain the minor and simple injuries on the defence, the same cannot be taken to be a ground to reject the testimony of such witnesses. In the instant case, the injuries were neither superficial nor minor therefore, non explanation of serious injuries in the instant case doubts the very genesis of the prosecution version."
18. In view of the ratio laid down by the Honourable Supreme Court, this case has to be considered. In the instant case, though a case was registered on the basis of the complaint given by the accused, the prosecution has not placed all the records. When a case and counter has arisen in the course of same transaction, it is the duty of the prosecution to place the records relating to both the cases and further duty is caused upon the prosecution to point out clearly the genesis of the occurrence, and thereby, enabling the Court to find out the truth and fix the aggressors. The injuries sustained by the accused 3 and 4 on the head are also serious in nature and cannot be termed as minor and superficial injuries. In view of the non-explanation of the injuries sustained by the accused and also due to failure on the part of the prosecution by not placing all the records pertaining to the counter case, this Court is to draw the inference that the prosecution has not presented the true version and the origin of the occurrence is not established and the eye-witnesses have deliberately suppressed the part of the transaction, in which, the accused were injured. In the said circumstances, it is very unsafe to convict the accused placing reliance on the evidence of eye-witnesses.
19. In the result, the Criminal Appeal No.474 of 2002 filed by the accused is allowed and the conviction and sentence imposed on the appellants/Accused Nos.3, 4 and 5 in Sessions Case No.32 of 1999 on the file the learned Additional Sessions Judge, Fast Track Court No.2, Salem are set aside and the appellants/Accused Nos.3, 4 T.SUDANTHIRAM, J.
jrl and 5 are acquitted of all the charges and the fine amount paid, if any, is to be refunded to them. The bail bond executed by the Accused Nos.3, 4 and 5 shall stand cancelled.
20. For the same reasons stated above, the criminal revision case No.1073 of 2002 filed by P.W.1 is dismissed.
25.08.2009 Index : Yes Internet : Yes jrl To
1. The Additional District Sessions Judge, Fast Track Court No.2, Salem.
2. The Inspector of Police, Tharamangalam Police Station, Salem District.
3. The Public Prosecutor, High Court, Madras.
Crl.A.No.474 of 2002 and Crl.R.C.No.1073 of 2002