Dakshinamoorthy, Usha, Elango and Manga vs The State

M. Chockalingam, J.—The judgment shall govern these two appeals, namely C.A. Nos. 153 and 159 of 2010. The first one is brought forth

by Accused Nos. 3 to 6 and the second one is brought forth by Accused Nos. 1 and 2.

The appellants, six in number, have challenged the judgment of the learned Principal District Sessions Judge, Krishnagiri, made in S.C. No. 16

of 2005, dated 02.02.2010, whereby they stood charged as follows:

Charges:

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I A-1 to A-6 - Section 148 IPC

II A-1 to A-6 - Section 302 r/w. 34 IPC

III A-2 - Section 307 IPC (Two Counts)

IV A-1, A-3 to A-6- Section 307 r/w. 149 IPC

V A-2 to A-5 - Section 307 r/w. 34 IPC

VI A-1, A-3, A-4 & A-6- Section 307 r/w. 149 IPC

VII A-4 and A-6 - Section 323 r/w. 34 IPC

VIII A-1 to A-3 & A-5 - Section 323 r/w. 149 IPC

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Conviction and sentence:

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A-1 to A-6 - Section 148 IPC - 1 years R.I. and to pay a

fine of Rs. 1000/- each,

in default 3 months R.I.

A-1 to A-5 - Section 302 - Life Imprisonment and to

r/w. 34 IPC pay a fine of Rs. 2000/-

each, in default 6 months

R.I.

A-2 - Section 307 IPC - 7 years R.I. and to pay a

(Two Counts) fine of Rs.

2000/- each, in default

6 months R.I.

A-2, A-4 & A-6- Section 323 - Six months R.I. and to pay

r/w. 34 IPC a fine of Rs. 1000/- each,

in default 1 month R.I.

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All the sentences were ordered to run consequently.

The short facts necessary for the disposal of these appeals can be stated thus:

(a) P.W.1 is the second wife of deceased Devan. Devan''s father had two wives and through the first wife, he had five children, including first

accused and P.W.4 and through the second wife, Devan was the only son. The father-in-law of P.W.1 owned 5 acres of land. He retained 1 acre

70 cents for himself. There was a Panchayat convened, but, the first accused, refused to hand over possession and he was retaining the entire

possession of 5 acres of land. When he applied for electric service connection, the same was objected to by the deceased and therefore, there

ensued a quarrel between them.

(b) On the date of occurrence, viz., 27.05.2004, at about 9.00 a.m., when the first accused was carrying on the agricultural operation by ploughing

his land, the deceased along with other witnesses went there and raised objection for ploughing the land and thereafter, at about 12.30 p.m., they

again went there and raised objection and hence, there arose a quarrel and at that time, when the objection was raised by the deceased for

ploughing the land, accused Nos. 4 and 6 dragged P.W.1 and pushed her down and fisted her. The first accused attacked the deceased with

Koduval on his head; Second accused attacked the deceased with Koduval on his back; Third accused attacked the deceased with Koduval on

his left leg; Accused Nos. 4 and 5 stabbed the deceased with a long needle on the back; Sixth accused attacked the deceased with an iron rod on

the eye-brow, as a result of which, the deceased sustained bleeding injuries and he fell down and died on the spot. Accused Nos. 2 and 5

attacked P.W.3, Second accused attacked P.W.2; and Accused Nos. 4 and 6 attacked P.W.1. In the course of the said transaction, P.Ws 1 to 4

sustained injuries. Immediately, P.Ws 1 to 4 were taken to the Uthangarai Government Hospital. They were examined by P.W.10-Doctor. He

noted the injuries found on them. and Accident Register copy for P.W.1 was marked as Ex.P.8; Accident Register Copy for P.W.2 was marked

as Ex.P.6; Accident Register Copy for P.W.3 was marked as Ex.P.9; Accident Register Copy for P.W.4 was marked as Ex.P.7. From there,

P.Ws 2 and 3 were taken to the Krishnagiri Government Hospital and they were given further treatment.

(c) On receipt of the information, P.W.15-Sub-Inspector of Police of the respondent-police proceeded to the Uthangarai Government Hospital

and recorded the statement of P.W.1, marked as Ex.P.1. On the strength of the same, a case came to be registered in Crime No. 214 of 2004 for

the offences under Sections 147, 148, 323, 324, 307 and 302 IPC. Ex.P.16, the Express first information report was despatched to the Court. At

about 20.30 hours, on receipt of the complaint from third accused a case was registered in Cr. No. 215 of 2004 for the offences under Sections

323 and 324 IPC and First Information Report was despatched to the Court.

(d) P.W.16, the Sub-Inspector of Police, on receipt of the copy of the F.I.R., took up the the investigation, proceeded to the place of occurrence,

made an inspection in the presence of the witnesses and prepared Ex.P.2, the observation mahazar and Ex.P.17, the rough sketch. He proceeded

to the place of occurrence and conducted inquest on the dead body of the deceased in the presence of the witnesses and panchayatdars and

prepared Ex.P.18, the inquest report. He also recovered material objects from the place of occurrence and from the dead body of the deceased.

Following the same, the dead body of the deceased was sent for the purpose of autopsy along with a requisition.

(e) P.W.11, the Doctor attached to the Uthangari Government Hospital has conducted autopsy on the dead body of the deceased and has issued

Ex.P.11, the post-mortem certificate, wherein he has opined that the deceased would appear to have died of shock and haemorrhage due to the

injuries sustained.

(f) Pending investigation, on 28.05.2004, fifth accused was arrested in the presence of the witnesses. He volunteered to give a confessional

statement, which was recorded in the presence of the witnesses. Pursuant to the confessional statement, he produced two koduval and one iron

rod, which were recovered in the presence of witnesses under a cover of mahazar. Pending investigation, accused Nos. 2 and 3 were arrested and

they were sent to the Court. All the material objects recovered from the place of occurrence, from the dead body of the deceased and the M.Os

recovered from the accused were subjected to chemical analysis by the Forensic Science Department. Pursuant to which, Ex.P.14, the Biological

report and Ex.P.15, the Serologist''s report were received. The Investigator examined all the witnesses and recorded their statements. On

completion of the investigation, he filed the final report in Cr. No. 214 of 2004 and he also filed ""Referred Notice"" in Cr. No. 215/2004 closing the

case as ""Mistake of Fact"", before the Judicial Magistrate Court.

The case was committed to the Court of Sessions and necessary charges were framed. In order to substantiate the charges, the prosecution has

marched 16 witnesses as P.Ws 1 to 16 and also relied on 20 exhibits as Exs.P.1 to P.20 and relied on 13 material objects as M.Os.1 to 13. On

completion of the evidence on the side of the prosecution, the accused 1 to 6 were questioned u/s 313 Code of Criminal Procedure procedurally

as to the incriminating circumstances found in the evidence of prosecution witnesses, which they flatly denied as false. On the side of the defence,

two witnesses were examined viz., D.W.1 and D.W.2, through whom four documents viz., Exs.D.1 to D.4 were marked. On completion of the

evidence on both sides, the lower court heard the arguments advanced by both sides and also scrutinised the materials available and took a view

that the prosecution has proved the case beyond reasonable doubt and has found the accused 1 to 6/appellants guilty and has awarded punishment

as referred to above. Hence, these appeals at the instance of the appellants.

Advancing his arguments on behalf of the appellants, the learned Senior Counsel Mr. V. Gopinath would submit that in the instant case, though,

number of witnesses were marched as eye witnesses, out of whom, four witnesses, viz., P.Ws. 1 to 4 were shown as injured witnesses and the

prosecution has miserably failed to prove the case but the trial Court has taken an erroneous view finding the appellants guilty. According to the

learned Senior Counsel, admittedly, during the relevant time, first accused was in possession of the entire 5 acres of land and when he asked for

electric service connection, it was objected to by the deceased Devan and therefore, it is quite clear that enmity had already ensued between them.

On the date of occurrence viz., 27.05.2004, at about 9.00 a.m., when the first accused was ploughing the land, it is the deceased Devan, who

along with the witnesses went to the field of the first accused and raised objection, which shows that he was an aggressor. Added further according

to the learned Senior Counsel, following the first incident, on the same day at about 12.30 p.m., the second incident, viz., the occurrence has taken

place. On the strength of the complaint given by third accused, a case came to be registered by the very same respondent-police in Cr. No. 215 of

2004 under Sections 323 and 324 IPC. The prosecution did not file the First Information Report, 161 Statement or the Medical Report, in respect

of accused Nos. 1 and 3 before the trial Court. Learned Senior Counsel would further submit that D.W.1 and D.W.2 are the Doctors and they

gave treatment to accused Nos. 1 and 3 and their Accident Register Copy were marked as Exs.D.2 and D.1 respectively and Case Diary were

marked as Exs.D.3 and D.4, which would clinchingly show that third accused sustained grievous injuries and first accused, though, sustained

simple injuries, the injuries were caused on the vital organ viz., head. Thus, when accused Nos. 1 and 3 also sustained injuries in the very same

transaction, the prosecution had no explanation to offer how they sustained those injuries. The prosecution in its fairness should have filed all the

documentary evidence in respect of Cr. No. 215 of 2004, but failed to do so. Thus, the prosecution did not enable the Court to understand the

genesis of the entire transaction, to render justice. Added further according to the learned Senior Counsel, in the instant case, it is true that some of

the persons, who were actually the witnesses sustained injuries and one person has died. It is pertinent to point out that there was actually a

previous clash between two parties and the deceased along with the other witnesses invaded into the person and right of the immovable property

of first accused and in such circumstances, the occurrence has taken place. The prosecution miserably failed to bring home the genesis of the

occurrence and the entire transaction and also the non-explanation of the grievous injuries sustained by accused 1 and 3 would go to show that the

prosecution has miserably failed to prove its case. Under such circumstances, the appellants are entitled for acquittal in the hands of this Court, but,

the learned trial Judge has taken an erroneous view and rendered the judgment of conviction and sentence, which has to be set aside.

Heard the learned Additional Public Prosecutor on the above contentions. This Court has paid its anxious consideration on the submissions

made.

It is not in controversy that the deceased Devan, who was the husband of P.W.1. died in the occurrence that had taken place on 27.05.2004 at

about 12.30 p.m. Following the same, inquest on the dead body of the deceased was made by the Investigating Officer-P.W.16. The dead body

of the deceased was subjected to post-mortem by P.W.11-Doctor. As a witness, he has also deposed before the Court that the deceased died

out of shock and haemorrhage due to injuries sustained by him. Apart from that, the prosecution also marked the post-mortem certificate-Ex.P.11

in that regard in order to prove the said fact. The fact that Devan had died out of homicidal violence was never disputed by the appellants before

the trial court and hence, no impediment is felt by this Court in recording so.

In order to substantiate the charges levelled against the appellants, though the prosecution marched number of witnesses as eye witnesses and

out of whom, P.Ws. 1 to 4 were shown as injured witnesses, it is needless to say that in a case like this, where the prosecution comes forward

with the evidence of an eyewitness, who is also an injured witness, unless and until strong circumstance or reason is brought forth, the Court should

not discard the said evidence. In the instant case, the Court is afraid, whether it can agree with the judgment of conviction and sentence imposed

on the appellants/accused Nos. 1 to 6 by the trial court for the following reason.

Admittedly, during the relevant time, first accused was in possession of the entire 5 acres of land and on the previous occasion, when first

accused made an application for electric service connection, it was objected to by the deceased and therefore, there ensued an inimical term

between them. On the date of occurrence viz., 27.05.2010, at about 9.00 a.m., when first accused was ploughing the lands, it was the deceased,

who along with witnesses went over there and raised objection. Following the same, the second incident had taken place at about 12.30 p.m.

P.Ws 1 to 4 claim that they were all injured in the occurrence. When the deceased and witnesses were attacked by accused Nos. 1 to 6, they

were also attacked by the respective witnesses.

At this juncture, it is pertinent to point out that a case came to be registered in Cr. No. 214/2004 on the complaint given by P.W.1, which is

marked as Ex.P.1. It is also admitted by P.Ws. 15 and 16, that a case was registered in Cr. No. 215 of 2004 on the complaint given by third

accused. It is pertinent to note that in Cr. No. 214 of 2004 and Cr. No. 215 of 2004, the place and time of transaction are same. If that be so, in

its fairness, the prosecution should have placed all the materials and also records pertaining to Cr. No. 215 of 2004 before the trial Court. It is a

matter of surprise to note that while it is an admitted position that both the transactions covered under Cr. Nos. 214 and 215 of 2004 are one and

the same, the Investigator has closed the investigation of Cr. No. 215 of 2004 on the very day. It would be clearly indicative of the fact that there

was no investigation done by the Investigator. Insofar as Cr. No. 215 of 2004 is concerned, not even the First Information Report, 161 Statement

or the Medical Report were actually filed before the trial court. From the evidence of D.Ws. 1 and 2-Doctors and also on a perusal of Exs.D.1

and D.2-Accident Register Copy and Exs.D.3 and D.4-Case Diary issued to Accused Nos. 1 and 3, it is quite evident that in the same

transaction, first accused sustained injuries on the head and third accused sustained grievous injuries and he was hospitalised for a period of one

month and they were given treatment in the Krishnagiri Government Hospital.

In the above circumstances, a duty is cast upon the prosecution to explain how accused Nos. 1 and 3 sustained injuries during the same

transaction. No one of the witnesses examined by the prosecution has whispered anything about the same and therefore, there is a non-explanation

of the injuries sustained by accused Nos. 1 and 3. In such a situation, the Supreme Court had an occasion to consider the case reported in

Lakshmi Singh and Others Vs. State of Bihar, of the said judgment, it has been held as under:

PW 8 Dr. S.P. Jaiswal who had examined Brahmdeo deceased and had conducted the post-mortem of the deceased had also examined the

accused Dasrath Singh, whom he identified in the court, on April 22, 1966 and found the following injuries on his person:

Bruise 3"" x 1/2 "" on the dorsal part of the right forearm about in the middle and there was compound fracture of the fibula bone about in the

middle.

Incised wound 1"" x 2 mm x skin subcutaneous deep on the lateral part of the left upper arm, near the shoulder joint.

Punctured wound 1/2"" x 2 mm x 4 mm on the lateral side of the left thigh about 5 inches below the hip joint.

According to the doctor Injury 1 was grievous in nature as it resulted in compound fracture of the fibula bone. The other two injuries were also

serious injuries which had been inflicted by a sharp-cutting weapon. Having regard to the circumstances of the case there can be no doubt that

Dasrath Singh must have received these injuries in the course of the assault, because it has not been suggested or contended that the injuries could

be self-inflicted nor is it believable. In these circumstances, therefore, it was the bounden duty of the prosecution to give a reasonable explanation

for the injuries sustained by the accused Dasrath Singh in the course of the occurrence. Not only the prosecution has given no explanation, but

some of the witnesses have made a clear statement that they did not see any injuries on the person of the accused. Indeed if the eyewitnesses could

have given such graphic details regarding the assault on the two deceased and Dasain Singh and yet they deliberately suppressed the injuries on the

person of the accused, this is a most important circumstance to discredit the entire prosecution case. It is well settled that fouler the crime, higher

the proof, and hence in a murder case where one of the accused is proved to have sustained injuries in the course of the same occurrence, the non-

explanation of such injuries by the prosecution is a manifest defect in the prosecution case and shows that the origin and genesis of the occurrence

had been deliberately suppressed which leads to the irresistible conclusion that the prosecution has not come out with a true version of the

occurrence. This matter was argued before the High Court and we are constrained to observe that the learned Judges without appreciating the

ratio of this Court in Mohar Rai and Bharath Rai Vs. The State of Bihar, tried to brush it aside on most untenable grounds. The question whether

the Investigating Officer was informed about the injuries is wholly irrelevant to the issue, particularly when the very doctor who examined one of the

deceased and the prosecution witnesses is the person who examined the appellant Dasrath Singh also. In the case referred to above, this Court

clearly observed as follows:

The trial court as well as the High Court wholly ignored the significance of the injuries found on the appellants. Mohar Rai had sustained as many as

13 injuries and Bharath Rai 14. We get it from the evidence of PW 15 that he noticed injuries on the person of Mohar Rai when he was produced

before him immediately after the occurrence. Therefore the version of the appellants that they sustained injuries at the time of the occurrence is

highly probabilised. Under these circumstances the prosecution had a duty to explain those injuries.... In our judgment the failure of the prosecution

to offer any explanation in that regard shows that evidence of the prosecution witnesses relating to the the incident is not true or at any rate not

wholly true. Further those injuries probabilise the plea taken by the appellants.

This Court clearly pointed out that where the prosecution fails to explain the injuries on the accused, two results follow: (1) that the evidence of the

prosecution witnesses is untrue; and (2) that the injuries probabilise the plea taken by the appellants. The High Court in the present case has not

correctly applied the principles laid down by this Court in the decision referred to above. In some of the recent cases, the same principle was laid

down. In Puran Singh v. State of Punjab Criminal Appeal No. 266 of 1971 decided on April 25, 1975 : reported in Puran Singh and Others Vs.

The State of Punjab, which was also a murder case, this Court, while following an earlier case, observed as follows:

In State of Gujarat v. Bai Fatima Criminal Appeal No. 67 of 1971 decided on March 19, 1975 : reported in State of Gujarat Vs. Bai Fatima and

Another, one of us (Untwalia, J.) speaking for the Court, observed as follows:

In a situation like this when the prosecution fails to explain the injuries on the person of an accused, depending on the facts of each case, any of the

three results may follow:

(1) That the accused had inflicted the injuries on the members of the prosecution party in exercise of the right of self-defence.

(2) It makes the prosecution version of the occurrence doubtful and the charge against the accused cannot be held to have been proved beyond

reasonable doubt.

(3) It does not affect the prosecution case at all.

The facts of the present case clearly fall within the four-corners of either of the first two principles laid down by this judgment. In the instant case,

either the accused were fully justified in causing the death of the deceased and were protected by the right of private defence or that if the

prosecution does not explain the injuries on the person of the deceased the entire prosecution case is doubtful and the genesis of the occurrence is

shrouded in deep mystery, which is sufficient to demolish the entire prosecution case.

It seems to us 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.

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 competes in probability with that of the

prosecution one. In the instant case, when it is held, as it must be, that the appellant Dasrath Singh received serious injuries which have not been

explained by the prosecution, then it will be difficult for the court to rely on the evidence of PWs 1 to 4 and 6, more particularly, when some of

these witnesses have lied by stating that they did not see any injuries on the person of the accused. Thus neither the Sessions Judge nor the High

Court appears to have given due consideration to this important lacuna or infirmity appearing in the prosecution case. We must hasten to add that

as held by this Court in State of Gujarat v. Bai Fatima Criminal Appeal No. 67 of 1971 decided on March 19, 1975 : Reported in State of

Gujarat Vs. Bai Fatima and Another, there may be cases where the non-explanation of the injuries by the prosecution may not affect the

prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial or where the

evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it far outweighs the effect of the

omission on the part of the prosecution to explain the injuries. The present, however, is certainly not such a case, and the High Court was,

therefore, in error in brushing aside this serious infirmity in the prosecution case on unconvincing premises.

Therefore, applying the decision cited supra to the instant case, where there is non-explanation of the injuries sustained by accused Nos. 1 and 3,

which were found to be grievous in nature, in the considered opinion of the Court would fatally affect the prosecution case. Apart from the same,

the prosecution in its fairness should have filed all the documents pertaining to Cr. No. 215/2004 before the trial Court, but, it has failed to do so.

The non-production of F.I.R., Case Records and Medical Report pertaining to accused Nos. 1 and 3 in Cr. No. 215 of 2004 before the trial

Court, in the considered opinion of the Court would affect the prosecution case. By the non-production of those documents before the trial Court,

the prosecution did not enable the Court to understand the genesis of the occurrence and also the entire transaction to take a correct decision in

the matter.

Added further, the fifth accused was arrested on 28.05.2004 and his confessional statement was also recorded and the statement recorded

thereon was relied on by the prosecution in the instant case before the trial Court. But, in the considered opinion of the Court, it is the deceased

and other witnesses, who actually went to the field of first accused on 27.05.2004, at about 9.00 a.m. and raised objection and therefore, they are

the aggressors and they actually made an invasion into the person and right of the immovable property of the first accused and therefore, following

the first incident, the second incident, viz., occurrence had taken place at about 12.30 p.m. and in the course of the very same transaction, accused

Nos. 1 and 3 also sustained injuries and it remains unexplained by the prosecution. The prosecution in its fairness should have filed all the

documentary evidence in respect of Cr. No. 215 of 2004 before the trial court, but, it failed to do so. By the non-production of the documents,

viz, F.I.R., Case Records and Medical Report, the prosecution did not enable the Court to understand the genesis of the entire transaction. In such

circumstances, this Court comes to a conclusion that the prosecution neither placed all materials before the Court nor proved its case. Under such

circumstances, it cannot be stated that the prosecution has brought home the guilt of appellants/accused Nos. 1 to 6 and hence, they are entitled

for acquittal.

Under these circumstances, the judgment of the lower court is set aside. Appellants/Accused Nos. 1 to 6 are acquitted of the charges levelled

against them and the fine amounts paid in that regard will be refunded to them. They are directed to be released forthwith unless their presence is

required in connection with any other case.

In the result, both the appeals are allowed.