Durairaj, Palani and Sandana Sekar vs State

S. Ashok Kumar, J.—This appeal is directed against the judgment dated 21.01.2003 made in S.C. No. 337 of 1998 on the file of the

Additional District & Sessions Judge (Fast Track Court No. II), Thoothukudy, in convicting the 1st appellant u/s 341 IPC and sentencing him to

undergo one month simple imprisonment; u/s 326 IPC sentencing him to undergo one year Rigorous Imprisonment and to pay a fine of Rs.250/-, in

default to undergo Rigorous Imprisonment for one month, and convicting the appellants 2 and 3 u/s 341 IPC and sentencing them to undergo one

month simple imprisonment each and further convicting them u/s 324 IPC and sentencing them to undergo six months Rigorous Imprisonment.

The brief facts of the prosecution case are as follows:

Baskar (P.W. 1) is the son of Selvaraj (P.W. 2), the injured. Akkinimariyammal (P.W. 3) is the sister of (P.W. 2). On 29.10.1997, P.W. 1 had

fixed speaker sets for the celebration of Deepavali festival on behalf of the Youth Association. The accused had questioned P.W. 1 that from

whom they got permission to fix the speaker sets and without their permission, no function shall be conducted. Thereafter, (P.W. 2) the father of

P.W. 1 came and told the accused parties that it is the usual practice for every year to fix speaker sets on the occasion of Deepavali, and there is

no necessity for troubling them. Because3 of such enmity, on 31.10.1997, at about 06.00 a.m., the 1st accused attacked P.W. 2 with Aruval and

when he warded off such attack, he sustained injuries on his left hand. The second accused cut P.W. 2 with the Aruval on the left side of the

stomach. The third accused cut P.W. 2 with a knife on the right shoulder and cut on his back side also. When P.Ws.1, 3 and 4 raised alarming

sound, on hearing the same, the accused fled away from the scene of occurrence. Thereafter, P.W. 2 admitted for taking treatment in the

Government Hospital, Tuticorin by P.W. 1, one Paramasivan and P.W. 4.

P.W. 7, is the doctor during the relevant period attached to the Government Hospital, Tuticorin, treated the injured (P.W. 2) and issued

Accident Register (Ex. P.4). P.W. 2, stated before P.W. 7 that seven known persons attacked him near the water tank at about 06.00 a.m., on

31.10.1997. P.W. 8, is the doctor during the relevant period attached to Tirunelveli Medical College Hospital, Tirunelveli took X-rays on the body

of P.W. 2 and issued Ex. P.5.

4.Thereafter, on receiving information from the Government Hospital, Tuticorin, the Head Constable (P.W. 9) went to the Hospital and recorded

the statement of P.W. 1, the son of injured (P.W. 2), since P.W. 2 was unconscious. After returning to the Police Station, the Head Constable

registered a case in Crime No. 200/1997 under Sections 147, 148, 341, 323, 307 IPC and prepared First Information Report (Ex. P.6) and sent

the same to the higher officials.

5.The prosecution in order to prove its case has examined 9 witnesses, marked 8 exhibits, one material object and on the side of the defence no

witness was examined and 4 exhibits were marked.

6.When the accused were questioned u/s 313 Cr.P.C., with regard to the incriminating circumstances appearing in the evidence of the Prosecution

witnesses they denied the complicity of the offence. Considering all the circumstances and the evidences on record, the learned Trial Judge has

convicted the accused as stated supra.

7.Heard the learned counsel for the appellants and the learned Government Advocate (Crl. Side) for the respondent.

Mr.G.R. Edmund, learned counsel for the appellants would contend that the evidence given by P.W. 1 before the Doctor and as well as before

the Head Constable (P.W. 9) are totally different than the final report filed by the Police. As per the Accident Register (Ex. P.4) entries of which

were entered at 07.25 p.m., on 31.10.1997, within 1.30 hours after the occurrence, it is mentioned that the injured was assaulted by 7 known

persons with Aruval. The said statement has been given by the injured himself. On the other hand, P.W. 1, son of the injured (P.W. 2) has lodged

a complaint under Ex. P.1 wherein he has mentioned that six named accused (namely A-1 to A-3 in this case and three other persons by name

Senthurpandi, Alagukrishnan, and Jeyakrishnan) also assaulted his father with sticks repeatedly. It is pertinent to note that in Ex. P.1 complaint, and

Ex. P.6 First Information Report, six named persons and some more persons were arrayed as accused. But the final report has been filed against

the accused A-1 to A-3 alone. In the final report, the Investigation Officer has not given any reason for the deletion of three other names of the

accused and others in the charge sheet.

Learned counsel for the appellants pressed into service the judgments reported in 2005 (2) LW (Crl.787) and 2005 (2) LW.(Crl) 779 to stress

the fact that when number of accused are allegedly involved in the occurrence and different versions are given by the prosecution witnesses, then

the accused are entitled for benefit of doubt and acquittal on that ground.

In Subramani @ Manian v. State, rep. by Inspector of Police, reported in 2005 (2) LW (Crl) 787 a Division Bench of this Court has held as

follows:

The second aspect of the matter which would go to the root of the prosecution case is that according to the prosecution, A-1 to A-5 armed

with deadly weapons, constituted unlawful assembly and attacked the deceased and P.Ws 2,3 and 4. The earliest document which came into

existence, is the accident register copy. So far as the deceased was concerned, Ex. P. 13 accident register copy was issued by P.W. 14. AS

regards P.W. 2, the accident register copy is Ex. P.10. The accident register copy in respect of P.W. 3 is Ex. P.11. Ex. P.12 is the acid net

register copy relating to PW.4. A perusal of these earliest documents would clearly indicate that the deceased has informed to P.W. 14 the

Doctor, that four persons attacked him, which is recorded in Ex. P.13. P.W. 3 has informed to P.W. 14 that four persons attacked him, and it is

also recorded in Ex. P.11. At about 11.00 p.m, P.W. 14 has examined P.W. 4, and the wound certificate issued by him is Ex. P.123 wherein it is

found that two persons attacked PW.4. it is urther4 pertinent to point out that P.W. 2 was examined by P.W. 13 on 1.2.1996 at 10.10 a.m., and

the accident register copy is marked as Ex. P.10, wherein P.W. 2 has stated that he was attacked by six persons, and thus different versions are

given by the witnesses in these documents as to how many persons involved in the crime. But, the prosecution comes with the specific case that

five persons attacked the deceased and the witnesses, which is inconsistent with the earliest statements made by the witnesses, who, according to

the prosecution, are eye witnesses.

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A perusal of the evidence what is available before the lower court would go to show that the first information placed before the trial court, is

shrouded with suspicion, and different versions are given by the witnesses as to the number of persons involved and as to the scene of occurrence

also. hence, it cannot be stated that on the evidence available before the lower court, the prosecution can sustain a conviction.

In Secretary @ Mara Naicker and 7 Ors. v. State by Sub Inspector of Police, reported in 2005 (23) LW. (Crl) 779 the same Division Bench

has held as follows:

Yet another circumstance, which would go against the prosecution case is that Ranga Naicker, who was admitted at 08.15 p., has made a

statement to P.W. 9, the Doctor that 10 known persons attacked him, while P.W. 1 would say that they were attacked by 20 known and

unknown persons and the other injured witnesses have given statements to the Doctor coming out with different versions as to how many persons

participated in the crime, and thus, it would be doubtful whether such an occurrence would have taken place. Therefore, it would be unsafe to rely

on the evidence of the prosecution witnesses to sustain the conviction.

In Sundar and 3 Ors. v. State, rep. by Inspector of Police, Vellore, reported in 2007 (2) LW (Crl) 794 a Division Bench of this Court has

held as follows:

One more fact strengthens our suspicion in the above area, namely, after giving in Ex. P.1 as to who the assailants are, namely, the assailants

on P.W. 1 and the deceased, almost twelve hours later, P.W. 1 told P.W. 2 that he received injuries at the hands of two known persons present in

the midst of six or seven persons. So this is definitely an earlier statement of P.W. 1 to the doctor as said by the Supreme Court in the judgment

reported in Mohanlal Gangaram Gehani Vs. State of Maharashtra, . P.W. 1 was confronted with this earlier statement and he denied having given

such a statement to P.W. 2. P.W. 2 had given evidence stating that the contents of Ex. p.2 are as furnished by P.W. 1. Therefore, to sum up, we

conclude that P.W. 1 was not knowing at all who the assailants are and that is why all the infirmities, as pointed out above, had occurred.

The ratio decidendi arrived at in the above said decisions squarely applies to the facts of this case also. Though the earlier versions before the

Doctor it is alleged that 6 known persons and other unknown persons have attacked the injured, but in the complaint and FIR it has been stated

that only 3 persons have attacked the injured.

There is also some dispute regarding the place of occurrence in the Accident Register wherein it is mentioned as ""near water tank"" after scoring

of some other place which was originally written there. On the other hand, in the complaint (Ex. P.1), it is stated that the occurrence took place

near the house of one Ganesan, on the eastern side of the provisional shop of one Santhanam and also in the evidence of P.Ws. 1 to 4. Further,

they have not mentioned anything about the involvement of the three other named accused and other persons. The above defects would show that

the real occurrence is unfolded before the Court below. Therefore, benefit of doubt has to be given to the accused.

In the above circumstances, the infirmities of the prosecution case are as such that the prosecution could not explain its case beyond all

reasonable doubts and therefore, the benefit must go to the accused and hence the accused are entitled for acquittal of all the charges and the

appeal is allowed. The fine amount, if any, paid by them shall be refunded.