(Judgment of the Court was delivered by M.CHOCKALINGAM, J.) This appeal challenges a judgment of the Additional Sessions Division, Fast Track Court No.II, Ranipet, made in S.C.No.104 of 2005 whereby the appellants seven in number ranked as A-1 to A-7 respectively, along with A-8 and A-9 stood charged, tried and found guilty as follows:
ACCUSED CHARGES FINDING PUNISHMENT A-1 to A-4, A-6 to A-9 147 IPC A-1 to A-4, A-6 & A-7 Guilty A-8 & A-9 not guilty 1 year RI A-5 148 IPC Guilty 1 year RI A-1 & A-2 302 r/w 34 IPC Guilty Life imprisonment with a fine of Rs.5000/-, i/d 1 month RI A-3 to A-9 302 r/w 149 IPC A-7 to A-7 Guilty A-8 & A-9 not guilty Life imprisonment with a fine of Rs.5000/- i/d 1 month RI A-3 323 IPC Guilty 1 year RI A-1, A-2, A-4 to A-9 323 r/w 149 IPC A-1, A-2, A-4 to A-7 Guilty A-8 & A-9 not guilty 1 year RI A-4 323 IPC Guilty 1 year RI A-1 to A-3, A-5 to A-9 323 r/w 149 IPC A-1 to A-3 & A-5 to A-7 Guilty A-8 & A-9 not guilty 1 year RI A-5 326 IPC Guilty 7 years RI along with a fine of Rs.5000/-, i/d 1 month RI A-1 to A-4, A-6 to A-9 326 r/w 149 IPC A-1 to A-4, A-6 & A-7 Guilty A-8 & A-9 not guilty 7 years RI along with a fine of Rs.5000/- i/d 1 month RI A-6 323 IPC Guilty 1 year RI A-1 to A-5 and A-7 to A-9 323 r/w 149 IPC A-1 to A-5 & A-7 Guilty A-8 & A-9 not guilty 1 year RI A-7 323 IPC Guilty 1 year RI A-1 to A-6, A-8 & A-9 323 r/w 149 IPC A-1 to A-6 Guilty A-8 & A-9 not guilty 1 year RI A-8 323 IPC Not guilty A-1 to A-7 & A-9 323 r/w 149 IPC Not guilty A-9 323 IPC Not guilty A-1 to A-8 323 r/w 149 IPC Not guilty
2.As stated above, A-1 to A-7 in respect of the other charges and A-8 and A-9 in respect of all the charges were acquitted by the trial Court. Hence this appeal at the instance of the appellants.
3.The short facts necessary for the disposal of this appeal can be stated as follows:
(a) P.Ws.1, 2, 6 and 7 are the sons of the deceased Subramani. P.W.3 is the wife of the deceased. P.W.4 is the daughter-in-law of the deceased. A-1, A-2, A-3 and A-5 are the sons of A-9, while A-6 is the brother's son of A-9. A-7 and A-8 are the daughters of A-9. A-8 is the wife of A-4. All the accused and all the said witnesses were residents of Sambasivam Village. The accused belonged to the Scheduled Caste, and they were living in their colony. The said witnesses belonged to Vanniar community. On 10.11.2004, the cow of A-1 grazed in the land of the deceased which was questioned by him. Then, the deceased returned home. On the next day namely 11.11.2004, at about 10.30 A.M., while the deceased and P.Ws.1 to 4 went to their land to spread the groundnut on the road, A-1 to A-9 armed with sticks and knife respectively came there and questioned the deceased as to his conduct on the previous day. Then, they began to attack him. A-1 attacked him with M.O.4 stick, on his head, and A-2 beat the deceased with a stick on the face and right shoulder. A-3 beat P.W.1 on the back of the head with a stick and on the right shoulder. A-4 beat P.W.1 with a stick on his left knee. A-5 beat P.W.2 with an aruval, M.O.5, on the forehead. A-6 beat P.W.3 on both ears with a stick. A-9 beat P.W.4 on both cheeks, and A-7 beat her on both legs. P.Ws.6 and 14 who were there, witnessed the occurrence. After the occurrence, the accused persons fled away from the place.
(b) All the injured persons along with the severely injured Subramani were taken to the hospital. They were all medically examined by P.W.22, the Doctor, attached to the Government Hospital, Arcot. The accident register copy for P.Ws.2, 3 and 4 are marked as Exs.P35, P36 and P38 respectively. For P.W.1, the same is marked as Ex.P37. Further, the accident register copy of the deceased is marked as Ex.P34. An intimation was given to the respondent police station. P.W.23, the Sub Inspector of Police, rushed to the hospital and took the statement of P.W.1, which is marked as Ex.P1, on the strength of which a case came to be registered in Crime No.1283 of 2004 under
Sections 147,148,307,324 and
323 of IPC. The printed FIR in that regard is marked as Ex.P42.
(c) At about 2.30 P.M., A-5 appeared before the respondent police station and gave a report. On the strength of Ex.P43, the report, a case came to be registered in Crime No.1284/2004, and the printed FIR is Ex.P44. Both the FIRs in the respective cases were despatched to the Court. A-1 and A-5, who sustained injuries, were also sent to the Government Hospital for treatment. The accident register copy for A-5 is marked as Ex.P40, and for A-1, it is marked as Ex.P41. Thereafter, P.W.1 was sent for further treatment to CMC Hospital where P.W.10, the Doctor, gave him treatment, and the accident register copy is marked as Ex.P39.
(d) On receipt of the copies of the FIRs in both the cases, P.W.24, the Inspector of Police, took up investigation, proceeded to the spot, made an inspection and prepared an observation mahazar, Ex.P5 and a rough sketch, Ex.P45. Then, he recovered the sample earth and bloodstained earth under a cover of mahazar. Pending the investigation, A-2 to A-4, A-6 and A-7 were arrested. The confessional statements of A-3, A-2, A-4, A-6 and A-7 are marked as Exs.P19, 21, 23, 25 and 27 respectively. On the strength of the same, M.O.4 series, sticks, were recovered from A-2, A-3, A-4 and A-7. Further, A-1 and A-5 were arrested later, and they gave confessional statements. Ex.P29 is the admissible part of the confessional statement of A-1. The admissible part of the confessional statement of A-5 is Ex.P31. A knife was recovered from A-5 under Ex.P32 mahazar. A stick was recovered from A-1 under Ex.P30 mahazar. They were sent for judicial remand.
(e) P.W.24, the Investigating Officer, received a death intimation at 9.15 A.M. on 19.11.2004. Then, the case was altered to Sec.302 of IPC, and the altered FIR, Ex.P47, was sent to the Court. He conducted inquest on the dead body in the presence of witnesses and panchayatdars and prepared an inquest report, Ex.P48. Then he gave a requisition, Ex.P11, to the hospital authorities for the purpose of autopsy.
(f) P.W.10, the Civil/Assistant Surgeon, attached to the Government Vellore Medical College Hospital, on receipt of the said requisition, conducted autopsy on the dead body of Subramani and has issued a postmortem certificate, Ex.P17. He has opined that the deceased would appear to have died of post head injury sequelae 24 to 30 hours prior to autopsy.
(g) After the investigation was over, the case in Crime No.1284/2004 was referred to as mistake of fact, while the Investigating Officer filed the final report in Crime No.1283/2004 on completion of investigation.
4.The case was committed to Court of Sessions, and necessary charges were framed. The accused went on trial before the trial Court. In order to substantiate the charges levelled against the accused/appellants and the other two accused, the prosecution examined 24 witnesses and also relied on 48 exhibits and 9 material objects. On completion of the evidence on the side of the prosecution, the accused were questioned under Sec.313 of Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses which they flatly denied as false. No defence witness was examined. The trial Court heard the arguments advanced and took the view that the prosecution has proved the case beyond reasonable doubt, and hence found them guilty and awarded the punishment referred to above. Hence this appeal at the instance of the appellants.
5.Advancing arguments on behalf of the appellants, the learned Senior Counsel Mr.V.Gopinath would submit that according to the prosecution, the occurrence has taken place on 11.11.2004 at about 10.30 A.M.; that it is true that the prosecution has examined 24 witnesses out of whom P.Ws.1 to 4 are shown not only as occurrence witnesses, but also as injured witnesses; that P.Ws.6 and 14 are shown as occurrence witnesses; that as far as P.Ws.6 and 14 are concerned, their names are not found in the FIR, and hence, no credence could be given to their evidence; that the trial Court was not made to understand even the genesis of the occurrence in the instant case; but, it has taken an erroneous view; that admittedly, the case came to be registered by P.W.23, at the instance of the complaint given by P.W.1 at the hospital at about 1.00 P.M. on 11.11.2004 when he was actually under treatment; that the case came to be registered at 2.30 P.M. under Sec.307 of IPC and other provisions of the Code against the accused; that it is admitted by P.W.23, the Sub Inspector of Police, that A-5 appeared before the police station, and gave a complaint, on the strength of which a case came to be registered on the very day at about 2.30 P.M. and A-1 and A-5 who were found with injuries, were sent to the hospital for treatment along with the medical memo; and that it is categorically admitted by P.W.23 that at the earliest, the case was registered under Sec.307 of IPC and other provisions, and on the death of the deceased, it was converted to Sec.302 of IPC on 18.11.2004.
6.The learned Senior Counsel would add that in the instant case, though a case was registered under Sec.307 IPC on the date of occurrence itself at about 2.30 P.M., the FIR has reached the Court the next day that was on 12.11.2004 at about 7.00 P.M.; that there was a delay of 30 hours; but, the prosecution has no explanation to offer; that P.W.23 came forward with the evidence to state that they actually despatched the FIR to the Court within a few hours; but, no explanation was found; that apart from that, the Constable who took the FIR to the Court, was not all examined; that P.W.23 has deposed that the Court is situated in Arcot within 1 kilometer from the police station; that under the circumstances, the said delay was very fatal to the prosecution; and that there was all possibility for making embellishments and also improvements in the case.
7.Added further the learned Senior Counsel that admittedly, A-1 and A-5 sustained injuries; that they were actually given treatment by P.W.22, the Doctor, and the accident register copies, Exs.P41 and P40 respectively, have been marked; that all the witnesses have not given any explanation at all; that it was P.W.6 who made a feeble attempt to give some explanation; but, P.W.6 as stated above, could not have been an eyewitness at all, and hence it was a vainful attempt made by the prosecution.
8.Added further the learned Senior Counsel that in the instant case, though the Investigator has stated that the case in Crime No.1284/2004 registered at the instance of A-5 was referred to as mistake of fact, neither the statements alleged to have been recorded from the witnesses nor the final report was filed at all; that the earliest documents in the case are the accident register copies of P.Ws.1 to 4 marked as Exs.P35 to P38 respectively; that a perusal of all these documents would clearly indicate that about 17 persons were actually involved in the crime; but, the prosecution had no explanation; that all these would go to show that the prosecution was unable to bring forth the genesis of the occurrence or explain the delay or the injuries sustained by A-1 and A-5; that apart from all the above, all the documents pertaining to Crime No.1284/2004, were actually not marked before the trial Court; that under the circumstances, it would be indicative of the fact that the prosecution has miserably failed to prove its case, and hence they are entitled for acquittal in the hands of this Court.
9.The Court heard the learned Additional Public Prosecutor on all the above contentions and paid its anxious consideration on the submissions made.
10.It is not in controversy that one Subramani, the father of P.W.2 and others, who sustained injuries following an incident, was taken to Arcot Government Hospital, where he was given treatment. Following the same, he was given further treatment at the CMC Hospital, Vellore, and died on 18.11.2004. Originally, the case was registered under Sec.307 IPC in Crime No.1283/2004, and subsequently it was altered to Sec.302 IPC on the death of Subramani. Following the inquest made by the Investigator, the dead body was subjected to postmortem by P.W.10, the Doctor, who has given his categorical opinion that he died out of post head injury. Apart from this, as regards the fact that Subramani died as a direct consequence of the injuries sustained by him, no suggestions or not even questions were put in the cross-examination to the witnesses. Under the circumstances, without any impediment it could be recorded so.
11.It is true that in the instant case, the prosecution in order to substantiate the charges levelled against the appellants and two others shown as A-8 and A-9, marched six witnesses who are P.Ws.1 to 4, 6 and 14. Out of these witnesses, who claimed to be eyewitnesses, P.Ws.1 to 4 have been shown not only as occurrence witnesses, but also as injured witnesses. It is also true that the accident register copies are also marked as Exs.P35 to P38 respectively. These documents when looked into, would clearly indicate that they have come into existence at the earliest even before P.W.23, the Sub Inspector of Police, recorded Ex.P1 from P.W.1 at Arcot Government Hospital. A perusal of these documents would clearly show that according to all the witnesses, nearly about 17 persons were involved, and they were the assailants in the occurrence. But, the prosecution had no explanation to offer. Even the witnesses have not deposed in respect of 17 persons at the time of the trial. Further, as rightly pointed out by the learned Senior Counsel for the appellants, the names of P.Ws.6 and 14 do not find place in the FIR, and hence no credence could be attached to their evidence. It is not that this Court is unmindful of the caution made by the settled principles of law that in a given case like this, when the occurrence witnesses happened to be injured witnesses, the Court should not discard their testimony unless and until a strong circumstance is noticed or reason is brought about. But, in the instant case, though the prosecution rested its case on the direct evidence by marching P.Ws.1 to 4 as injured witnesses, no credence could be attached to the same in the considered opinion of the Court.
12.It is true that the occurrence has taken place; but, a duty is cast upon the prosecution to bring to the notice of the Court the genesis of the occurrence. Admittedly, a case came to be registered by P.W.23 at the instance of P.W.1 under Ex.P1 at about 2.00 P.M. He has categorically admitted that a case was registered at the instance of the complaint by A-5 at about 2.30 P.M., and the complaint is marked as Ex.P43. The FIR in that case is marked as Ex.P44. It is pertinent to point out that the investigation in both the cases, according to the Investigating Officer, was taken up together. It is admitted that A-1 and A-5 were actually injured in the same transaction, and they have also been taken to the hospital with the medical memo. As far as A-1 is concerned, the accident register copy is Ex.P41, and Ex.P40 is for A-5. It is true that the injuries are simple; but, the witnesses have not come forward to explain the injuries. It is to be pointed out that in all the cases, the injuries sustained by the accused need not be explained, but in a given case like this, where a case came to be registered by the same respondent police in respect of the injuries sustained by the accused, the investigation agency is duty bound to place before the trial Court all the factual position enabling the Court thereby to understand the case. In the instant case, admittedly, two of the accused were injured and were actually taken to the hospital. They were given treatment, and a case came to be registered by the same police in Crime No.1284/2004, and if to be so, all the material records should have been placed before the Court. In the case on hand, except the FIR, no other documents namely the statements alleged to have been recorded from the witnesses and the final report, have been filed enabling the Court to understand the case.
13.It is further to be pointed out that there is inordinate and inexcusable delay noticed. The case was registered at about 2.00 P.M. on 11.11.2004. But, the FIR has reached the Court at 7.00 P.M. on 12.11.2004, and thus there was 30 hours delay. According to P.W.23, the Sub Inspector of Police, the Judicial Magistrate's Court is situated within one kilometer from the police station. Even according to him, it would suffice to take the FIR within half an hour. But, it has been taken to the Court in a case of attempt to murder, after 30 hours. No explanation was tendered before the trial Court. Not even the Constable who took the FIR was examined. This would be indicative of the fact that all embellishments and improvements could have been done. Under the circumstances, the delay, in the considered opinion of the Court, was fatal to the prosecution case. Hence it can be well stated that the prosecution has miserably failed to place all materials necessary as to the genesis of the case enabling the Court to understand the origin and also the case. This coupled with the delay and the non-explanation of the injuries sustained by those accused would go to show that the appellants should be given the benefit of doubt, and they are entitled for acquittal.
14.In the result, this criminal appeal is allowed setting aside the judgment of conviction and sentence passed by the lower Court. The appellants are acquitted of the charges levelled against them. A-1 and A-2 are directed to be released forthwith unless their presence is required in any other case. The fine amounts paid by the appellants will be refunded to them. The bail bonds executed by A-3 to A-7, shall stand terminated.
(M.C.,J.) (M.V.,J.) 9-1-2009 Index: yes Internet: yes nsv/ M.CHOCKALINGAM, J.
AND M.VENUGOPAL, J.
nsv/ To:
1.The Additional District and Sessions Judge Fast Track Court No.II Ranipet
2.The Inspector of Police Arcot Town Police Station (Crime No.1283 of 2004)
3.The Public Prosecutor High Court, Madras.
CRL.A.No.91 of 2008 Dt: 9-11-2008