Chithravel and Others vs State

The Honourable Mr. Justice S. Palanivelu

This Criminal appeal filed u/s 374 of the Code of Criminal Procedure against the judgment of conviction and sentence imposed on the

Appellants by the learned Additional District and Sessions (Fast Track Court No. 1) Trichy, dated 28.11.2005 made in SC. No. 15 of 2005 by

convicting the Appellants 1 to 9 each for a period of 6 months rigorous imprisonment with Rs. 500/- fine with default sentence for the offence u/s

148 Indian Penal Code and convicting 1 to 4 and 6 to 9 Appellants each for a period of 6 months rigorous imprisonment with Rs. 500/- fine with

default sentence for the offence u/s 324 Indian Penal Code and convicting the fifth accused for a period of nine months rigorous imprisonment with

Rs. 1000/- fine with default sentence for the offence u/s 326 Indian Penal Code and also convicting 1 to 9 Appellants each to pay fine of Rs. 500/-

with default sentence for the offence u/s 341 Indian Penal Code.

The case of the prosecution in brief are as follows:

a) P.W. 1 was the Panchayat President of Navalpatu Village at the time of occurrence. He laid a complaint Ex. P.1 before the Respondent police

station stating that on 25.04.2004 at about 10.00 p.m, when the candidate for Trichy Parliamentary Constituency one Ganesan came to Naval

Attu Village for canvassing; the car bearing registration No. TN45-B-0779 was proceeding to Naval Attu; that P.W. 1 had got previous enmity

with one Sekaran who was the then MLA; that in the car the supporters of the said Sekaran who are accused were coming with the weapons; that

all of them appeared in the scene, while P.W. 1 and Ors. were waiting for the said Ganesan; that they waylaid them; that Chitravel cut Neethirajan

by means of aruval; that Udayakumar the brother of Chitravel cut on the left hand of Neethirajan; that Parthiban stabbed Neethirajan on his head

causing bleeding injury; that Natarajan assaulted Neethirajan with an aruval on his head; that Samuvel with aruval assaulted on the head of

Shanthakumar; that Subramanian by means of an iron rod assaulted Shanthakumar on his lips and left eye brow, that Loganathan by means of

aruval cut on the head of Malaiarasan; that Sakthivel with an aruval cut Neethirajan on his head; that while Rajendran with a knife attempted to

attack, Malairasan prevented and thereby he received an injury in his left little finger; that on seeing the occurrence P.W. 1 along with Baskar and

Ranjitkumar threw the stick and stones upon the accused, by means of which, the accused also sustained injuries, that they fled away from the

scene of occurrence; that the three injured persons were removed to Maruthi Hospital and that since the injured were unconscious, P.W. 1 gave a

compliant.

b) On receipt of the complaint, the Inspector of Police, P.W. 9 registered a case in Crime No. 86 of 2004 under Sections 147, 148, 341, 323,

324 and 307 Indian Penal Code and lodged the First Information Report, Ex. P.7. He proceeded to the scene of crime, prepared an Observation

Mahazar, Ex. P.4 and rough sketch, ExP.8. He requested the concerned Judicial Magistrate for remanding the accused Chitravel and Loganathan

who were under the treatment in the hospital. On 28.04.2004, at about 4.00 p.m, the Inspector of Police arrested the accused Rajendran and

Subramanaian near Mattur roundna and recorded confession statements in the presence of witnesses. The admissible portion of confession

statement is Ex. P.9. In pursuance of the same, the accused Rajendran took the police and produced M. Os.1 to 3 namely aruvals six in number,

knives numbering 2 and one iron rod. The investigating officer examined the witnesses and recorded their statements. He also arrested Natarajan

on 01.05.2004 at 13.00 hours and sent him to judicial custody. He also examined the doctors who gave treatment to P. Ws.2 to 4, the injured

witnesses.

c) In Maruthi Hospital, P. Ws.1, 2 to 4 were admitted. The doctor, P.W. 6 and one doctor Rathnakumar examined P. Ws.2 to 4 and gave wound

certificates. Since the Doctor Rathnakumar was not available, the medical certificates issued by him were marked through P.W. 6. (This is to be

noted that the same doctor by name doctor Gopinath has been examined as P. Ws.6 and 8). The following injuries were sustained by the

prosecution witnesses:

P.W. 2:

(i) Deeplaceration of 4x3cmsxbone depth over left parieteoccepital region.

(ii) Left eyebrow laceration of 1 1/2 x 1 x 0.5 cms size.

(iii) Upper lip laceration - left side - 0.5 x 0.5 x 0.5 cms.

P.W. 3:

Multiple lacerated injury over scalp

a.size 6x1xbone depth

b.size 6x1xcms

c.size 2x1x1 cms

d.2.5x1x1 cms

Lacerated injury at left little finger size 3.5x1x1cms.

Abrasion over the right knee 2x1 cms.

P.W. 4:

Multiple lacerated injuries over the scalp

a.2x1x1 cms

b.3x1x1 cms

c.4x1x1 cms

d.4x1x1 cms

e.5x1x1 cms

f.3x1x1 cms

Lacerated injury of size 7x1/2x1/2 cm over the left side of back of chest (over scapular region).

Lacerated injury of size 6x1x1 cms over upper part of left forearm lateral aspect.

Lacerated injury of size 12x3x2 cms over left forearm 1/3 medial aspect.

d) The investigating officer also received a complaint from the accused party and registered the same in Crime No. 85 of 2004 under Sections

147, 148, 341, 323, 324 and 506-II. He registered case against the eight accused. He took up the investigation and eventually, he referred the

case in Crime No. 85 of 2004 as mistake of fact. In the present case, in Crime No. 86 of 2004 on completion of the investigation, he laid the

charge sheet against the accused.

e) The Appellants were put on trial and after the prosecution evidence was over, they were examined and questioned u/s 313 Code of Criminal

Procedure as to incriminating materials against them in the prosecution evidence. They denied complicity to the offence. They filed written

statements u/s 313 Cr.PC in which they have stated that without proper investigation they have been implicated and false case has been foisted

against them. They examined D.W.1, the doctor who gave treatment to them in Annal Gandhi Memorial Hospital, Trichy. The accident register

recorded for the accused Nos. 1,2 and 4 to 6 have been marked as Ex. D.1 to D.5. Ex. D.6 is the copy of the First Information Report in Crime

No. 85 of 2004 and Ex. D.7 is the referred charge sheet served upon the accused. The Appellants have also examined one Sathyamoorthy who is

the head clerk of the learned Judicial Magistrate No. IV, Trichy. Through him, Ex. D.6 and D.7 were marked.

On appreciation of evidence adduced on both sides, the Court below convicted and sentenced the Appellants as stated above. Hence, this appeal.

Point for consideration:

Whether the prosecution has brought home the guilt of the accused beyond all reasonable doubt?

Point:

It is an admitted fact that bad blood was existing between both the Appellants as well as the prosecution witnesses at the time of occurrence.

The Learned Counsel for the Appellants Mr. P. Thangaiya would take much pains to highlight contradictions and discrepancies in the

prosecution evidence and also the lapses on the part of the prosecution to prove the innocence of the accused before the Court below. It is his

contention that the investigation officer registered two complaints, one for the case and another for case in counter. He has to investigate both the

cases simultaneously and lay charge sheet at the same time and in case, any one of the case is referred by him as mistake of fact, it is his bounden

duty to produce the copies of the First Information Report and final report in the trial of the case and in case, if those documents were not

produced in the trial by the prosecution, it would be fatal to the prosecution.

In support of his contention, he placed much reliance upon a Division Bench of this Court reported in 2005 MLJ (Cri.) 191, Moorthy v. State,

wherein the learned Judges have observed that in this case the police have only stated that they conducted investigation in the counter case and

referred the same as mistake of fact and they have not marked the counter complaint and referred in the Court and the prosecution have

suppressed the genuineness and the origin of the occurrence and thus not represented the true version and in the circumstances, the

Appellants/accused are entitled to benefit of doubt and have to be acquitted.

6.1. In the present case on hand, the prosecution has not produced the copies of the First Information Report and the referred charge sheet in the

trial which have been produced on the side of the Appellants before the trial Court. Hence, it is the view of this Court that the prosecution has not

placed the sufficient materials in their position before the Court to ascertain genuineness and origin of the occurrence so as to enable the Court to

have a thorough study of the events available in both the cases.

6.2. In this regard, as observed by the Division Bench of this Court, the benefit of doubt which has surfaced in this case has to be extended to the

accused.

The next disturbing feature in the prosecution case is the changing of time in the First Information Report by the learned Judicial Magistrate on

receipt of the First Information Report by him. He has received the First Information Report on 27.04.2009 and written as ""received at 11.00 p.m

then he has made the letter ""P"" to ""A"" so as to make it to be seen as if the complaint and First Information Report were received at 11.00 a.m. on

27.04.2009. It is the duty of the investigating officer to furnish the explanation for this correction. But, P.W. 9 the investigating officer has not given

any clarification in his evidence with regard to this correction. If it is taken that the First Information Report was received at 11.00 p.m. on

27.04.2009, there is much delay in the receipt of the First Information Report by the Court. In the considered opinion of this Court, the said aspect

as to delay remains unexplained and the benefit of doubt which has arisen therefrom has to be extended to the accused.

Another feature in this case is that the complaint in Crime No. 85 of 2004 was registered on 26.04.2004 at 6 a.m. as per Ex. D.6. The

complaint in Crime No. 86 of 2004 was registered at 6.30 a.m. on 26.04.2004 as per Ex. P.7, First Information Report. Concededly, both the

complaints arose from the same transaction and both of them were lodged with the difference of half an hour before the investigating officer P.W.

While he sent the First Information Report registered the Crime No. 86 of 2004, that is the present case, to the Court on 26.04.2004 and the

First Information Report in Crime No. 85 of 2004 was received by the learned Judicial Magistrate much later on 29.04.2004. It is the bounden

duty of the investigating officer to clarify and despatch both the First Information Reports to the Court below and the reason for the delayed receipt

of the First Information Report in Crime No. 85 of 2004. His evidence in this regard is silent. It may also be noticed that the police constable who

took the job of entrusting both the First Information Reports to the learned Judicial Magistrate was kept out from the witness box. There is no

explanation on the side of the prosecution for his non-examination before the Court. Had he been examined, the reasons for the earlier receipt of

Ex. P.7 and delayed receipt of Ex. D.6 could have been given, besides the correction of time by the learned Judicial Magistrate in Ex. P.7. The

above said discrepancies makes this Court to lay suspicion over the prosecution case.

The learned Government Advocate (Crl.Side) would contend that the prosecution evidence are cogent, satisfactory and convincing with regard

to the occurrence; that the respondents/complainants were attacked by the accused and that there is no infirmity either factually or legally in the

judgment challenged before this Court and hence, that the appeal may be dismissed.

The Learned Counsel for the Appellants also brings to the notice of this Court the reason for the complaint to be given by P.W. 1 while other

injured were very much available. In the First Information Report, P.W. 1 has stated that since the injured were unconscious, he gave a written

complaint. But the fact remains that all the three injured witnesses were fully conscious and there is no medical evidence to show that there were

unconscious at the relevant time. P.W. 6 doctor would say that the injuries sustained by the injured witnesses were spoken by them. Neither the

doctor nor the investigation officer has stated that the injured were unconscious at the time of examination by doctor. Further, the wound

certificates of the witnesses also do not disclose that they were unconscious at the time of treatment. In these circumstances, the Court is at loss to

see what prompted P.W. 1 to give complaint while other injured witnesses were very much conscious.

The contention that since P.W. 1 is an arch rival of the accused, he came forward to give the complaint ignoring the presence of the injured

witnesses and he has consciously suppressed the physical condition of the injured and falsely stated that the inured persons were unconscious.

Therefore, this circumstance is also raising a doubt on the prosecution. It is also pointed out on behalf of the Appellants that remarkable

discrepancies are available as to the description of the weapons allegedly utilised in the occurrence. In the complaint, oral evidence of the

witnesses, it is stated that P. Ws.2 to 4 were assaulted by aruval, knife and iron rod, but in the wound certificates the injured witnesses appeared

to have stated that in addition to aruval, knife and other weapons, namely, veechu, nunchaku etc., were also used. However, Exs.P.3,5 and 6

Wound Certificates do not contain the name of the weapons and knives. Hence, it is clear that the injured persons did not come out with proper

description of the weapons by means of which they are alleged to have been assaulted. It is in evidence that by means of aruval the injured were

cut and with knife one of the injury was caused on the head. But, neither a cut injury nor a stab injury is found in the wound certificates pertaining

to the prosecution witnesses.

The medical certificates would show that the injured sustained only lacerated injuries. When the sharp edged weapons, such as aruval and

knife are stated to have been used at the time of occurrence, it is for the prosecution to furnish convincing evidence as to how lacerated injuries

were caused by means of above said weapons. In this case, such explanation is not forthcoming. Further, it is in the evidence of the investigation

officer that the weapons contained blood strains. But he has failed to send them for forensic science department to find out whether the weapons

contained the blood and the blood belonged to human origin. Because, the weapons were not despatched for scientific examination, the nexus

between the accused and the weapons on the one hand and the correction in respect of FIR and no proof that the blood contained the weapons

belonged to the injured witnesses on the other hand, it is fatal to the prosecution case.

In this context, the Learned Counsel for the Appellants relied upon a decision of the Full Bench decision of this Court reported in (2010) 1

MLJ (Cri) 687 (SC), Prabir Mondal and Anr. v. State of West Bengal, wherein Their Lordships have held that the failure on the part of the

prosecution to send the weapons used for commission of offence will not connect the accused with the alleged crime. The non-initiation of steps for

scientific examination aforestated is lapse on the part of the prosecution which would weaken its case. In the attempt, the prosecution has not

succeeded to establish that the weapons were used by the accused.

The Learned Counsel for the Appellants also draw attention of this Court to the failure as regards the failure on the part of investigating officer

to furnish dimensions of the iron rod allegedly recovered from the accused. He says that in the Form No. 91 also, the description iron rod is not

mentioned and that it is the flaw on the side of the prosecution. The contention is acceptable. P.W. 4 suffered fracture in his left ulna but the

prosecution has not produced the X-ray and X-ray report of P.W. 4 for completion of evidence.

Yet another disturbing feature in the prosecution case is that non-production of medical certificates of the accused. It is well settled that in an

occurrence if the accused sustained injuries it is incumbent upon the prosecution to elicit the same in the evidence and they have to produce

necessary medical certificates. Admittedly, the Appellants 1,2 and 3 to 6 sustained injuries in the occurrence as spoken to by P.W. 1 himself. The

police have produced the wound certificates before the Court below but they were not produced before the Court below by the prosecution.

Among the accused, the second accused sustained a fracture in his left index finger. The Appellants have produced copies of statements recorded

u/s 161 Code of Criminal Procedure by the investigating officer at the time of investigation of their case.

The Learned Counsel for the Appellants also says that the investigating officer has taken undue interest in this case to support the prosecution

witnesses and that he embarked upon to arrest the accused persons on mere receipt of a compliant from P.W. 1 even before examining the injured

persons in the hospital. He would say that the investigating officer has acted more as a coach to the complainant, when he has expected in law to

play a role of umpire. On the Appellants'' side, an earlier Division Bench decision of this Court has been referred to reported in 1974 L.W (Cri)

190, Karunakaran Jabamani Nadar In re., wherein, after elaborate discussion, the learned Judges have formulated the following guidelines to be

observed by the Judicial Magistrates in the matter of further proceeding with the successive events in a criminal case. They are as follows:

The original report or complaint u/s 154 of the Code of Criminal Procedure.

The printed form of the first information report prepared on the basis of the said report or complaint.

Inquest reports and statements of witnesses recorded during the inquest.

Memo,sent by the Station House Officers to doctors for treating the injured victims who die in the hospital subsequently and the history of the

case-treatment.

Memo, sent by the doctor to the police when a person with injuries is brought to the hospital, or the death memo, sent by the doctor to the

police on the death of the person admitted into the hospital with injuries.

Observation mahazars for the recovery of material objects, search lists and the statements given by the accused admissible u/s 27 of the

Evidence Act, etc. prepared in the course of the investigation.

The statements of witnesses recorded u/s 161(3) of the Code of Criminal Procedure.

Form No. 91 accompanied by material objects.

It is also argued on the side of the Appellants that it is mandatory on the part of Court to pen down sufficient findings when it intends to convict

the accused u/s 149 Indian Penal Code and that in the judgment of the Court below even though it has been referred to invoking Section 149

Indian Penal Code, there is no satisfactory reasons for convicting the accused under the said Section 149. In this regard, the decision of the

Supreme Court reported in Kuldip Yadav and Others Vs. State of Bihar, , is relied upon. It is also seen that the alleged weapons used in the

offence and the blood stained clothes were not sent for forensic science department for necessary examination.

this Court has scrutinsed the materials available in this case with the great caution and care and found out that incriminating materials are not

available against the accused. Reasonable doubts have surfaced in the prosecution case and benefit of doubt has to be accorded to the Appellants.

In view of the above observations and discussions, this Court is of the considered view that the prosecution has miserably failed to bring home

the guilt of the Appellants beyond all reasonable doubt and that the charges framed against the Appellants are far from proof. The Appellants have

to be acquitted of all the charges.

In the result, the criminal appeal is allowed and the Appellants are acquitted of all the charges framed against them and the judgment of the

Court below is set aside. I answer this point as indicated above. The fine amount, if any, paid by the Appellants shall be refunded to them and the

bail bonds executed by them also shall stand cancelled.