THE HONOURABLE MR.JUSTICE S.NAGAMUTHU and THE HONOURABLE DR.JUSTICE ANITA SUMANTH Criminal Appeal No.78 of 2017 Raji @ Pushaparaj .. Appellant - Vs -
State rep by Inspector of Police, R-1, Mambalam Police Station, Chennai – 600 017.
(Cr.No.413 of 2013) .. Respondent Prayer:- Appeal filed under Section 374 of the Code of Criminal Procedure against the judgment passed by the learned III Additional Sessions Judge, Chennai in S.C.No.298 of 2014 dated 14.07.2016.
For Appellant : Mr.R.Sankarasubbu for Mr.P.Anbazhagan For Respondent : Mr.P.Govindaraj Additional Public Prosecutor - - - - -
J U D G M E N T
(Judgment of the Court was delivered by S.Nagamuthu,J.) Challenging his conviction under Section 302 I.P.C. and his sentence of imprisonment for life and fine of Rs.2,000/- in default to undergo rigorous imprisonment for six months imposed by the learned III Additional Sessions Judge, Chennai in S.C.No.298 of 2014 by judgment dated 14.07.2016 the
appellant has come up with this appeal.
2. The case of the prosecution in brief is as follows:
2.1. The appellant is a resident of Anumandapuram, Chennai. He was working in Kannamapet graveyard. He used to dig graves to burry the dead bodies in the said place. The deceased Mr.Sridhar was also working in the same graveyard doing similar works. In fact, the accused was assisting the deceased. Out of the meager amounts earned in the said profession every day, the accused and the deceased used to share the same. Thus, it was their livelihood.
2.2. Sometime before 23.12.2013, there arose misunderstanding between the accused and the deceased over sharing of the income from the graveyard which resulted in a quarrel. In the said quarrel, it is alleged that the deceased attacked the accused with hands. It is stated to be the motive for the occurrence.
2.3. On 21.03.2013 around 03.30 p.m. it is alleged that the deceased was taking rest in the shed meant for the workers in the graveyard at Kannamapet, T.Nagar, Chennai. It is alleged that at that time, the accused went into the shed with a crowbar and attacked the deceased indiscriminately. The deceased sustained multiple injuries on his body. Leaving him struggling for life, it is alleged that the accused ran away from the scene of occurrence.
2.4. P.W.1 is the brother of the deceased. According to him, around 03.00 p.m. on 21.03.2013, he went to the shed in the graveyard were the deceased was taking rest to meet him. At that time, according to him, he found the accused attacking the deceased with a crowbar indiscriminately. The deceased raised alarm. On hearing the same, few other workers in the graveyard rushed to the graveyard, but the accused fled away from the scene of occurrence. Immediately, thereafter, according to him, he informed P.W.11 about the occurrence over phone.
2.5. P.W.4 a relative of the deceased also rushed to the place of occurrence. In the meanwhile, 108 ambulance has come to the graveyard. P.Ws.1 and 11 took the deceased to the Government Royapettah hospital. At 04.25 p.m. they admitted him as inpatient. At that time, P.W.4 informed the doctor that the deceased was attacked by an unknown person at Kannamapet graveyard. The deceased was unconscious.
2.6. On the same day at 11.30 a.m P.W.1 went to Mambalam Police Station and made a complaint under Ex.P1.
P.W.13 the then Inspector of Police registered a case in Crime No.413 of 2013 against the accused under Sections 341 and 307 I.P.C. Both the documents were sent to the Court which were received by the learned jurisdictional Magistrate at 03.30 p.m. on 22.03.2013.
2.7. P.W.13 took up the case for investigation and visited the place of occurrence, where he prepared an observation mahazar and a rough sketch in the presence of witnesses. He recovered bloodstain earth and sample earth from the place of occurrence. He examined P.W.1 and few more persons and recorded their statements. On 23.03.2013 at 11.15 p.m. the deceased died in the hospital despite treatment. P.W.13 therefore altered the case into one under Section 302 I.P.C. On 24.03.2013 at 07.00 a.m. he conducted inquest on the body of the deceased and forwarded the same for postmortem.
2.8. P.W.9 Dr.Ramalingam conducted autopsy on the body of the deceased on 24.03.2013 at 02.10 p.m. He found the following injuries:
“Injuries:(1) Irregular reddish brown abrasions: (a) 0.5 x 0.5 cm on the back of right elbow; (b) 0.5 x 0.5 cm on the front of the middle third of right leg; (c) 1x0.8 cm on the right side of forehead, 0.5 cm above the right eyebrow; (d) 4x2 cm with intervening areas of normal skin on the right zygomatic region of the face; (e) 2.8 x 2 cm on the right cheek, 6 cm from the right ear and 2 cm below the outer canthus of right eye (f) 3 x 0.5 cm on the outer aspect of the upper eye lid of right eye.
(2) Two horizontally oblique sutured lacerated wounds 5.5 cm and 4 cm, 2-3 cm apart with surrounding irregular dark red abrasion 7 x 5 cm on the left parietal region of the scalp; on removal of the sutures; wound margins were irregular and gaping.
(3) Horizontally oblique sutured lacerated wounds 4 cm with surrounding irregular dark red abrasion 6 x 3 cm on the left parieto occipital region of the scalp; on removal of the sutures; wound margins were irregular and gaping.
(4) Two horizontally oblique sutured lacerated wounds 4.5 cm and 5 cm, 2-3 cm apart with surrounding irregular dark red abrasion 7 x 3 cm on the left side of occipital region of the scalp; on removal of the sutures; wound margins were irregular and gaping.
(5) Dark red periorbital bruising of the both upper and lower eyelids of right eye.
(6) On reflection of the scalp: Dark red scalp deep bruising 19 x 17 cm on the left frontal, left parietal, left temporal and the left side of the occipital region and dark red scalp deep bruising 17 x 9 cm on the right frontal and right parieto temporal regions of the scalp; dark red diffuse bruising of right temporal muscle; fissured fracture 3 cm on the left temporal bone and on to the adjoining left limb of the lambdoid suture; on removal of the calvarium; thin film of dark red subdural hematoma on the left cerebral hemisphere of the brain; thick film of dark red subdural hematoma on the right cerebral hemisphere of the brain; dark red diffuse sub arachnoid hemorrhage on the surface of both the cerebral and both the cerebellar hemispheres of the brain; Brain : edematous; Fissured fracture 1.5 cm on the right side of the floor of anterior caranial fossa.
(7) On dissection of the neck: Dark red diffuse bruising of the upper third of right sternomastoid muscle; larynx and trachea: empty; hyoid bone and other laryngeal cartilages: intact.
Heart: Normal in size, multiple subepicardial petechial haemorrhages on the surface of the back of left ventricle; cut section : all chambers contained fluid and clotted blood valves: Normal coronaries patent great vessels; multiple raised atheromatous plaques on the inner surface of the root of Aorta.
Lungs: Normal in size, multiple subpleural petechial hemorrhages on the surface of both the lungs, cut section : congested.
Stomach: contained 50 ml of dark green colour fluid with no definite smell; mucosa; patchy areas of congestion.
Liver, Spleen and Kidneys: Normal in size; cut section: congested. Bladder : empty; Pelvis and Spinal Column: intact.”
Ex.P6 is the postmortem certificate. He opined that the death of the deceased was due to shock and hemorrhage due to the injuries found on the body of the deceased and that the said injuries could have been caused by a weapon like crowbar (M.O.1).
2.9. P.W.13, during the course of investigation, arrested the accused on 24.03.2013 at 12.00 noon in the presence of witnesses. On such arrest, he made a voluntary confession, in which, he disclosed the place where he had hidden the crowbar. In pursuance of the same, he took the police and the witnesses to the place of hide out and produced the crowbar (M.O.1).
P.W.13 recovered the same under a mahazar. Then, he forwarded the accused for judicial remand. At his request, the material objects were sent for chemical examination. On completing the investigation, he laid chargesheet against the accused.
2.10. Based on the above materials, the trial Court framed a lone charge under Section 302 I.P.C. The accused denied the same. In order to prove the case, on the side of the prosecution, as many as 13 witnesses were examined, 14 documents and 5 material objects were marked.
2.11. Out of the said witnesses, P.W.1 the brother of the deceased has spoken about the entire occurrence. He has also spoken about the fact that he along with P.W.4 took the deceased to the hospital. He has further stated that he made a complaint to the police. P.W.2 has stated about the earlier quarrel between the accused and the deceased. He has further stated that on the day of occurrence, he was working in the graveyard. P.W.1 came to the graveyard around 03.00 p.m. and went to the shed where the deceased was taking rest and within a short while the deceased raised alarm. When he rushed to the place of occurrence, he found the accused fleeing away from the scene of occurrence. He has further stated that he took the deceased to the hospital.
2.12. P.W.3 is yet another worker in the graveyard. He has spoken about the same facts as spoken by P.W.2. P.W.4 has stated that he received intimation from P.W.1 went to the place of occurrence and took the deceased to the hospital. P.W.5 is the brother of the deceased. He has stated that he heard about the occurrence. P.W.6 has also stated that he heard about the occurrence and went to the graveyard and took the deceased to the hospital.
2.13. P.W.7 has spoken about the preparation of observation mahazar and a rough sketch at the place of occurrence. P.W.8 a constable has stated that he took the dead body of the deceased to the hospital for postmortem. P.W.9 has spoken about the postmortem conducted and his final opinion regarding the cause of death.
2.14. P.W.10 Dr.Syed Abdul Kadher has stated that on 21.03.2013 at 04.25 p.m. when he was in Royapettah Government hospital, the deceased was brought to the hospital for treatment by P.W.4 Mr.Vinoth. The deceased was unconscious. At that time, Mr.Vinoth (P.W.4) stated that the deceased suffered fits and lost consciousness. However, he found injuries on the body of the deceased. Then, he admitted him in the hospital. Ex.P7 is the accident register. P.W.11 has spoken about the photographs taken at the place of occurrence.
P.W.12 an expert in forensic science has stated that he examined the material objects and found that there were human bloodstains on the same. P.W.13 has spoken about the investigation done and the final report filed.
3. When the above incriminating materials were put to the accused under Section 313 Cr.P.C., he denied the same as false. However he did not choose to examine anyone nor mark any documents. His defence was a total denial. Having considered all the above, the trial Court convicted the appellant as detailed in the first paragraph of this judgment and that is how the appellant is before this Court with this appeal.
4. We have heard the learned counsel appearing for the appellant, the learned Additional Public Prosecutor appearing for the State and also perused the records carefully.
5. It is the positive case of the prosecution that the alleged occurrence was at 03.30 p.m. on 21.03.2013 and the occurrence had taken place inside the shed where the deceased was taking rest. Admittedly, there was nobody else inside the shed. But P.W.1 has stated that he went to the said place only to meet the deceased. P.Ws.2 and 3 who were working in a different corner of the graveyard would state that they found P.W.1 moving towards the shed, where the deceased was taking rest and after sometime, when they rushed to the shed on hearing the alarm raised, they found the accused fleeing away from the scene of occurrence.
6. The learned counsel for the appellant would submit that these three witnesses could not be believed. According to the learned counsel had it been true that these three witnesses were present at the time of occurrence, had it been true that on information from P.W.1, P.W.4 rushed to the place of occurrence and had it been true that these witnesses had taken the deceased to the hospital and quite naturally they would have told the doctor that the deceased was attacked by a known person. But, P.W.4 had informed the doctor that the deceased was attacked by an unknown person. A perusal of the accident register would also go to show that there is mention that the deceased met with a road traffic accident. Thus the earliest information passed on to the doctor by P.W.4 would go to show that nobody knew as to how the deceased had sustained injuries. P.W.4 has been duly contradicted by the defence in the said evidence. This creates enormous doubt in the case of the prosecution more particularly the evidences of P.Ws.1 to 3.
7. Then comes the F.I.R. It is the case of P.W.1 that he went to Mambalam police station which is situated at 1 ½ kilometers from the place of occurrence and made complaint only at 11.30 a.m. on the next day that was on 22.03.2013. Absolutely there is no explanation for this inordinate delay.
P.W.1 is not a stranger but the brother of the deceased. Had it been true that the assailant was known, he would have immediately rushed to the police station on time and made the complaint. Above all, Ex.P1 complaint has reached the hands of the learned Magistrate only at 03.30 p.m. on 22.03.2013. There is no explanation for this also. This would further create doubt as to whether the F.I.R. would have come into being at 11.30 am on 22.03.2013 as it is projected by the prosecution. This inordinate delay both in preferring the complaint and forwarding the same to the Court which remains unexplained would further strengthen the doubt regarding the case of the prosecution.
8. Since the occurrence had taken place inside the shed and it is not known as to the manner in which the deceased was attacked and by whom to anyone and that is the reason why, at the earliest point of time the doctor was informed that the deceased was attacked by an unknown persons or he had met with a road traffic accident. That is the reason why there had occurred enormous delay in making the complaint. Thereafter, only it appears that this case has been given life by implicating the accused as the assailant. Since there are lots of doubt in the case of the prosecution as described herein above, we find it difficult to sustain the conviction. Therefore, the appellant is entitled for acquittal.
9. In the result,
(i) the appeal is allowed and the conviction and sentence imposed on the appellant by the learned III Additional Sessions Judge, Chennai in S.C.No.298 of 2014 dated 14.07.2016 is set aside and the appellant is acquitted.
(ii) The fine amount, if any paid, shall be refunded to him.
(iii) Since the appellant is in jail, he is directed to be set at liberty forthwith, unless his detention is required in connection with any other case.
(S.N.J.) (A.S.M.J.) 28.02.2017 Speaking Order / Non-speaking Order Index : Yes kk To
1. The III Additional Sessions Judge, Chennai.
2. The Inspector of Police, R-1, Mambalam Police Station, Chennai – 600 017.
3. The Public Prosecutor, Madras High Court.
S.NAGAMUTHU,J.
& ANITA SUMANTH,J.
kk
Crl.A.No.78 of 2017
28.02.2017 http://www.judis.nic.in