J. Muruganandhi vs State and Others

S. Nagamuthu, J.—The respondent Nos. 2 and 3 are the accused Nos. 1 and 2 in S.C. No. 71 of 2012, on the file of the learned Sessions Judge, Mahila Court, Pudukkottai. The Trial Court framed as many as two charges as detailed below.

By Judgment dated 18.03.2013, the Trial Court acquitted the accused Nos. 1 and 2 from all the charges. As against the acquittal, the appellant has come up with this Criminal Appeal.

The case of the prosecution, in brief, is as follows:--

"The deceased, in this case, was one Mr. Jeyaraj. He was residing at Kakkaikon Street at Karambaikudi. The accused are the bangalies of the deceased. There is a poramboke land by the side of the house of the deceased. The deceased was claiming right over the said poramboke land, which was seriously disputed by the accused. This developed into an enmity between the two families. The second accused is the father of the first accused. Their house is situated somewhere near the house of the deceased."

2.1. On 01.08.2011, at about 09.00 PM, it is alleged that the first accused went up to the house of the deceased and caused damage to the thatched roof of the deceased. When the deceased questioned the same, the first accused challenged him to come to his house and to damage the tiles of his house. The deceased took a challenge and went towards the house of the accused. PW-1 is the daughter and PW-2 is the wife of the deceased. They followed the deceased and tried to persuade him to go back. This resulted in a quarrel between the deceased and the accused. At the end of the quarrel, it is alleged that the first accused attacked PW-1 with his hands on her left leg. The second accused came with two wooden logs, handed over one wooden log to the first accused and directed the first accused to attack the deceased. The first accused, accordingly, attacked the deceased with wooden log on his head. The deceased fell down. Then, the second accused attacked him on his head. When PW-2 intervened, the first accused attacked him with hands on her head and face. Then, both the accused fled away from the scene of occurrence.

2.2. PW-2 and the neighbours took the deceased alone to a private hospital, run by one Dr. Rajadurai. He, after examining him, declared him dead. Then, they took the dead body to the Government Hospital at Alangudi. PW-1 went to the Police Station on the next day at 01.30 AM, on 02.08.2011 and made a complaint under EX-P1. PW-12, the then Sub-Inspector of Police, registered a case in Crime No. 227 of 2011, under Sections 323 and 302 of the Indian Penal Code. EX-P11 is the First Information Report. Then, he forwarded both the documents to the Court and handed over the case diary to the Inspector of Police for investigation.

2.3. PW-13 took up the case for investigation, on 02.08.2011 and proceeded to the place of occurrence. Since there was nobody at the place of occurrence, he returned to the Police Station. Between 07.30 AM and 09.30 AM, he conducted inquest on the body of the deceased, during which he examined PW-1, PW-2 and few more witnesses. EX-P12 is the inquest report. He prepared an Observation Mahazer and a Rough Sketch, showing the place of occurrence in the presence of PW-7 and another witness. He recovered bloodstained earth and sample earth from the place of occurrence under a mahazer in the presence of the same witnesses. Then, he forwarded the dead body for postmortem.

2.4. PW-10 - Dr. Jansirani conducted autopsy on the body of the deceased. She noticed the following injuries:--

"A lacerated wound irregular in shape about 5 cm length, 3 cm breath, 3 cm depth present in the Rt parietal region of the scalp.

Opening of skull:--Multiple fractures present in the skull. About 4 x 3 X3 cm length, breadth, depth lacerated wound was anteroposteriorly (+) in the skull midline involving the frontal bones and Rt parietal bones about 4 cm above the forehead.

2). About 3 X 3 X 3 cm irregular fracture present in the Rt temporal region. About 100 gm of blood clot present in the Rt temporal region of the brain surface. Membrane - protruding through the fractured site. Rt parietal region".

EX-P7 is the postmortem certificate and EX-P8 is her final opinion. According to her, the deceased would appear to have died of hemorrhage/hypovolumic shock due to multiple injuries.

2.5. In the meanwhile, both the accused surrendered before the Court. PW-13 made a request to the learned Judicial Magistrate seeking custody of the accused. Since he was transferred, he handed over the investigation to his successor.

2.6. PW-14 continued the investigation. He secured the custody of both the accused on 13.08.2011. While in custody, on 16.08.2011, at 08.30 AM, the first accused gave a voluntary confession in the presence of PW-8 and another witness. Following him, the second accused gave a voluntary confession. In pursuance of the confession made by the first accused, he took the police and the witnesses to Pattathikulam North Main Road and produced a wooden log from the hide out. PW-14 recovered the same under a mahazer. On returning to the Police Station, he forwarded both the accused to the Court for judicial remand and handed over the material objects also to the Court. Since he was transferred, he handed over the case diary to his successor.

2.7. PW-15 took up the case for further investigation. He examined few more witnesses, collected the material records and on completing the investigation, he laid charge sheet against the accused.

2.8. Based on the above materials, the Trial Court framed appropriate charges, as detailed in the first paragraph of this Judgment. When the accused was questioned in respect of the charges, he pleaded innocence. In order to prove the charges, on the side of the prosecution, 15 witnesses were examined, 16 documents and 6 material objects were marked.

2.9. Out of the said 15 witnesses, PW-1 and PW-2 are the injured eye-witnesses to the occurrence. They have vividly spoken about the entire occurrence. PW-3 to PW-5 have turned hostile and they have not supported the case of the prosecution in any manner. PW-6 has not stated anything incriminating against the accused. He has stated that he heard about the occurrence subsequently. PW-7 has spoken about the preparation of the observation mahazer and the rough sketch. PW-8 has spoken about the confession made by the accused and the consequential recovery of the wooden log in pursuance of the confession made by the accused. PW-9 is the Head Constable, who carried the First Information Report, which had reached the Court of the learned Judicial Magistrate at 04.30 PM, on 02.08.2011. PW-10 has spoken about the autopsy conducted by her and her final opinion regarding the cause of death. PW-11 has not stated anything incriminating against the accused, as he has stated that he heard about the occurrence subsequently. PW-12 has spoken about the registration of the case. PW-13 to PW-15 have spoken about the investigation done by them and the filing of the final report.

2.10. When the Trial Court examined the accused under Section 313 of the Code of Criminal Procedure in respect of the incriminating evidences available against them, they denied the same as false. However, they did not choose to examine any witness nor to exhibit any document. Having considered all the above materials, the Trial Court acquitted the accused. That is how, the appellant is now before this Court with this Criminal Appeal.

We have heard the learned counsel appearing for the appellant, the learned Additional Public Prosecutor appearing for the first respondent, the learned counsel appearing for the respondents 2 and 3 and also perused the records carefully.

The learned counsel for the appellant would submit that the Trial Court ought not to have given undue weightage for the delay in preferring the complaint and also forwarding the First Information Report to the Court, as such delay has been explained away by the prosecution. The learned counsel would further submit that PW-1 and PW-2 are the injured eye-witnesses, whose presence cannot be disputed at all. He would further submit that PW-1 and PW-2 have clearly spoken about the entire occurrence. But, the Trial Court has rejected their evidences without assigning sufficient reasons. The learned counsel would further submit that the evidences of PW-1 and PW-2 are duly corroborated by the medical evidence. He would further submit that there is no flaw in the investigation also and thus, according to the learned counsel, the Judgment of the Trial Court is liable to be interfered with and the respondent Nos. 2 and 3/accused should be convicted under the charges framed against them.

The learned counsel appearing for the respondents 2 and 3/accused would, however, oppose this Criminal Appeal. According to him, the inordinate delay in preferring the complaint and forwarding the First Information Report to the Court has not been explained away, which creates enormous doubt in the case of the prosecution. The learned counsel would further submit that the person, who drafted the complaint, was not examined. He would further submit that though PW-1 sustained injury, she did not go to the hospital for any treatment. So far as PW-2 is concerned, only on the next day, he went to the hospital. Thus, the contusion found on the body of PW-2 would have been a self-inflicted one. Further, the doctor, who treated PW-2, has not been examined. The learned counsel would further submit that the Trial Court has given cogent and convincing reasons for acquitting the respondent Nos. 2 and 3/accused, which does not require any interference at the hands of this Court. Therefore, the Criminal Appeal is liable to be dismissed, the learned counsel contended.

We have considered the above submissions.

At the outset, we should say that the presumption of innocence of the accused is one of the basic principles of criminal jurisprudence, which has been recognized as a part of a fair procedure enshrined in Article 21 of the Constitution of India. The said presumption of innocence, as per the settled law, is either further strengthened or even doubled, when the Trial Court has acquitted the accused on appreciating the evidences. Therefore, in the Criminal Appeal filed by the de facto complainant, challenging the acquittal, there should be a strong case made out by him to rebut the said presumption of innocence in favour of the accused. Keeping the above principles in mind, let us go into the merits of the case.

It is stated that PW-1 and PW-2 sustained injury in the very same occurrence and therefore, their presence cannot be disputed. But, it is in evidence that PW-1 did not go to the doctor at all for treatment. There is no record to show that she sustained injury at the place of occurrence. Except, the ipse dixit statement of PW-1, there is no other evidence available to the effect that she sustained injury in the very same occurrence. Further, PW-1 did not accompany the deceased to the hospital also. Thus, the presence of PW-1 is doubtful. So far as PW-2 is concerned, he also did not go to the hospital immediately. He went to the hospital only on the next day. The injury found on PW-2 is a small contusion. There is no explanation as to why he did not go to the hospital immediately for treatment. As rightly pointed out by the learned counsel for the respondent Nos. 2 and 3/accused, the small contusion found on PW-2 would have been a self-inflicted one so as to make out a very strong case against the accused. Thus, the presence of PW-1 and PW-2 itself is doubtful.

Now, turning to the First Information Report, the alleged occurrence was at 09.00 PM, on 01.08.2011. According to PW-1, at 01.30 AM, on 02.08.2011, the complaint was made, but, the First Information Report had reached the hands of the learned Judicial Magistrate, only at 04.30 PM, on 02.08.2011. Thus, there is a delay of 14 hours in the First Information Report reaching the hands of the learned Judicial Magistrate. Absolutely, there is no explanation for the same. The Trial Court has given much weightage for this unexplained and inordinate delay in preferring the complaint and forwarding the First Information Report to the Court and come to the conclusion that the First Information Report, in this case, is doubtful.

In our considered view, the Trial Court has given cogent and convincing reasons for acquitting the accused, in which we do not find any infirmity at all. As we have already pointed out, the presumption of innocence, which stands doubled by the acquittal recorded by the Trial Court, has not been rebutted by the de facto complainant in this appeal against acquittal. Therefore, we do not find any merit at all in this Criminal Appeal.

In the result, the Criminal Appeal is dismissed and the acquittal of the accused Nos. 1 and 2 is confirmed.