Balasekar and Another vs State by Inspector of Police

S. Nagamuthu, J.—The appellants are the accused in S.C. No. 314 of 2002 on the file of the learned Additional District Sessions Judge,

Madurai. They stood charged for the offence u/s 302 read with 34 IPC. Totally, there were 4 accused in this case. Accused Nos. 3 and 4 were

juveniles at the time of commission of the crime. Therefore, they were dealt with under the provisions of the Juvenile Justice (Care and Protection

of Children) Act, 2000. The accused/appellants herein alone were tried in S.C. No. 314 of 2002. By judgment dated 9.6.2004, the trial Court

found the appellants guilty u/s 302 read with 34 IPC and sentenced them to undergo imprisonment for life and each of them to pay a fine of Rs.

5,000/-, in default, to undergo rigorous imprisonment for a period of six months. Challenging the said conviction and sentence, the appellants are

before this Court with this appeal. The case of the prosecution in brief is as follows:-

(i) The deceased in this case was one Mr. Muthuraman P.W. 1 is the father of the deceased. The first accused is the husband of the second

accused and the juvenile accused are their children. The houses of the accused and that of the deceased are situated side by side. The first accused

opened a new entrance on the western wall of his house. This was objected to by the villagers. The first accused believed that the villagers

prevented him from opening the entrance only at the instance of the deceased. This is projected as motive against the deceased.

(ii) On 5.4.2001 at about 7.30 a.m., P.W. 1, P.W. 3 and others were standing in a common place in the village. At that time, the deceased had

just gone to the shop of P.W. 4 for taking tea. The shop was situated by the side of the said common place. At that time, all the four accused were

standing in front of the shop. The first accused, on seeing the deceased shouted at him and cried that if only the deceased was killed, his father,

namely, P.W. 1 would come to terms. So saying, the first accused attacked the deceased with aruval. The juvenile accused Jeya Murugan was

armed with aruval and the juvenile accused Ganesh Babu was armed with knife. The second accused was armed with the wooden log. The first

accused attacked the deceased with aruval repeatedly and the second accused attacked him with the wooden log. The juvenile accused also

attacked him with knife and aruval. P.W. 2 attempted to prevent further attack. However, he was attacked by the juvenile accused Jeya Murugan

with knife which resulted in injury to his neck and finger. The occurrence was witnessed by P.Ws. 1 to 6. The deceased succumbed to injuries on

the spot.

(iii) P.W. 1 went to the hospital for treatment. PW. 7 Dr. Hemanth Kumar was the Assistant Surgeon, attached to Melur Government Hospital. He

examined P.W. 2 at 2.15 p.m., and found the following injuries:-

Sliced wound Rt Index Finger and loss of skin of

1 x 1 cm x 1/2 cm

Exhibit P-3 is the Accident Register Copy.

(iv) P.W. 9, on intimation from the hospital went to the hospital and recorded statement of P.W. 1 at 9.15 a.m., on 5.4.2001. On returning to the

Police Station, at 10.00 a.m., he registered a case in crime No. 73 of 2010 u/s 302 IPC.

(v) In the same occurrence, the first accused had also sustained injuries. He went to the Government Hospital at Melur. One Dr. S. Kumar

examined him at 7.45 p.m., on 5.4.2001 at Melur Government Hospital. He told the Doctor that he was assaulted by a known person on

5.4.2001 near his house at Keelaiyur. The Doctor noticed the following injuries on the first accused.

External Injuries:

(1) A large cut injury above Rt knee of size 6 xm x 3 cm x 2 cm through which fresh bleeding present.

(2) A cut injury over Left Palm of size 5 xm x 3 cm x 2cm-bleeding present.

(3) Bleeding cut injury present on Rt palm of size

5 cm x 3 cm x 2cm.

Exhibit D-3 is the wound certificate. The said Dr. S. Kumar was examined as DW. 1. According to DW. 1, the injuries are grievous in nature. The

first accused underwent treatment till 8.4.2001.

(vi) P.W. 9 obtained the statement of the first accused and registered a case in Crime No. 74 of 2001 on 5.4.2001 at 3.00 p.m. u/s 324 IPC. The

deceased Muthuraman has been shown as the accused in the said case. According to the counter case in Crime No. 74 of 2001, the deceased

Muthuraman was the aggressor and he attacked the first accused with aruval and caused injuries as noted by DW. 1.

(vii) Both the cases were taken up for investigation by P.W. 13. He proceeded to the place of occurrence and prepared an Observation Mahazar

and a Rough Sketch. Then, he conducted inquest on the body of the deceased and then he forwarded the body for post-mortem. PW. 7-Dr

Hemanth Kumar conducted autopsy on the body of the deceased on 5.4.2001 at 1.50 p.m.,. He found the following injuries:-

External Injuries:

(1) Incised injury Lt side of neck 6 x 1 cm x 1 cm

(2) Contusion Lt side 3 cm Diameter bluish in colour.

(3) Abrasion Lt side Fore Head 2 x 2 x 1/2cm

(4) Punctured wound interscapular region of size 3 x m x 3 cm x 10 cm depth. Blood oozing out.

(5) Linear Abrasion of size 10 x 1 x 1/2cm Rt side to wound (4)

(6) Incised wound of size 10cmx 1cmx 1cm above wound No. 4.

(7) Abrasion of size 10 x 1/2 x 1/2 cm above wound No. 6.

(8) Incised wound Rt thigh front upper region of size 10 x 2 cm, muscles and vessels torn.

(9) Lacerated injury Rt side scizhotom 4 x 2cm? Rt Testes exposed and hanging outside

(10) Incised wound Rt. CCY? Door like Fcop present of size 6cm x 6cm x bone exposed

(11) Abrasion Rt elbow 1/2 x 1/2 x 1/2cm

Exhibit P-2 is the Post-Mortem Certificate. He opined that the deceased would appear to have died of haemorrhage shock due to multiple injuries

on vital organs.

(viii) P.W. 13 arrested the juvenile accused in the presence of PW. 8 and recovered MOs. 1 to 4 on his confession. On completing the

investigation, he laid charge sheet in the present case and referred the case in Crime No. 74 of 2001 as a ""mistake of fact"".

Based on the above materials, the trial Court framed charge against these two accused u/s 302 read with 34 IPC. The accused pleaded

innocence and therefore, they were put on trial. In order to prove the charges, on the side of the prosecution, 13 witnesses were examined and 15

documents were exhibited besides 8 Material Objects. Out of the said witnesses, P.Ws. 1 to 6 are the eye-witnesses. More precisely, P.W. 2 is

an injured eye-witness.

When the above incriminating materials were put to the accused, they denied them as false. On their side two witnesses, namely, Dr. S. Kumar

and Dr. Thulasiram were examined to speak about the injuries caused on the first accused. Exhibits D-1 to D5 were marked. Exhibit D-1 is the

notice served on the first accused referring the case in crime No. 74 of 2001. Exhibit D-2 is the petition filed seeking custody of the first accused.

Exhibit D-3 is the wound certificate of the first accused. Exhibit D-5 is the treatment record. According to the accused, the deceased was the

aggressor who came to the house of the accused with aruval and attacked the first accused and caused grievous hurt.

Having considered the above submissions, the trial Court found the accused guilty u/s 302 read with 34 IPC and accordingly, punished them.

That is how the appellants are before this Court with this appeal.

We have heard the learned counsel appearing for the appellants and the learned Additional Public Prosecutor appearing for the State. We have

also perused the records carefully.

Admittedly, in one and the same occurrence, the deceased and P.W. 2 on one side and accused No. 1 on the other side sustained injuries. In

respect of the injuries on P.W. 2 and the deceased and on the complaint of P.W. 1, the present case in Crime No. 73 of 2001 was registered and

the same was investigated by P.W. 13. Insofar as the injury sustained by the first accused is concerned, the case in Crime No. 74 of 2001 was

registered and the same was investigated. P.Ws. 1 to 6 claim to be the eye-witnesses. They are either family members of the deceased or close

relatives or friends of the deceased. Thus, they are partisan witnesses. Three is no independent witnesses examined in the case.

When there are two versions before the police contradicting each other, it is the bounden duty of the police officer to make a thorough

investigation in both the cases and find out the truth. It is also the duty of the police to place all the materials collected and investigated in both the

cases. It is ultimately for the Court to evaluate all such materials to find out as to who was the aggressor. But, in this case, the case in crime No. 74

of 2001 was referred to as a ""mistake of fact"", but no evidence was let in by the prosecution as to why the same was referred as a ""mistake of

fact"". P.W. 13 has not explained to the Court as to why he was prepared to accept the version of the prosecution rather than the version put

forward by the first accused. This, in our considered opinion, is a serious flaw which will go to indicate that the prosecution has not come forward

with the true version of the occurrence. No effort has been made by P.W. 13 to find out the true version of the occurrence.

Nextly, it is seen that the injuries sustained by A1 are not superficial injuries. They are cut injuries. As a matter of fact, bone was cut. DWs. 1

and 2 have stated that the said injuries are grievous in nature. There is no controversy before this Court that the said injuries on A1 were caused in

the same occurrence. If that be so, it is the bounden duty of the prosecution to explain the injuries caused on A1. As has been held by the Supreme

Court in Lakshmi Singh and Others Vs. State of Bihar, the non-explanation of the injuries on A. 1 will affect the case of the prosecution. The

prosecution has not come forward with the true version of the prosecution.

In this case, absolutely, there is no explanation for the injuries sustained by A1. From this, we have to necessarily come to the conclusion that

the prosecution has not come forward with the true version of the occurrence and there is no evidence available on record to hold that the accused

party were the aggressors. In such view of the matter, we are unable to sustain the conviction and sentence imposed on the appellants by the lower

Court. Hence, the Criminal Appeal is allowed, the conviction and sentence imposed by the trial Court on the appellants are set aside and they are

acquitted of the charges. Bail Bonds stand discharged. Fine amount, if already paid, shall be refunded to the appellants.