Kandasamy and Udayakumar vs State

M. Chockalingam, J.—This appeal challenges the judgment of the Additional Sessions Division, Fast Track Court No. 1, Tuticorin dated 18.05.2007 made in S.C. No. 295 of 2005 whereby the appellants 2 in number stood charged, tried and found guilty under Sections 302 r/w 34 IPC and awarded life imprisonment along with fine of 1,000/- in default to undergo three months rigorous imprisonment.

The short facts that are necessary for the disposal of this appeal can be stated as follows:

(i) PW.1 is the resident of West Street in Vedapatti Village. The deceased is her husband. He was doing utensil business at Hosur. PW.2 was living at Tiruthani along with her family. One Samuthravalli, wife of one Ayyasamy who belonged to Vedapatti, was also residing in the same street in Tiruthani. The first wife of Ayyasamy was residing in Vedapatti. The first accused is her brother. The second accused is the son of the first accused. They were carrying on a tea stall in Vedapatti.

(ii) One month prior to the occurrence, a quarrel arose between PW.2 and the wife of Ayyasamy at Tiruthani and they gave complaints before the police station and they appeared before the police station at Tiruthani and the matter was given quietus by a compromise. This was brought to the notice of the first accused by Ayyasamy. The deceased came to Vedapatti for Kodai Amman Festival. On 4.5.2004 at about 8.30 a.m., the deceased came out from PW.1''s house to have a cup of tea. At that time, when he was coming nearer to the tea stall of the first accused, there arose a wordy altercation between the accused and the deceased and in that process A.1 took a Velikaruvai stick and attacked him and the deceased pushed down the first accused. Immediately, A.2 pushed down the deceased and stamped him. At this juncture, a distressing cry was made. A.1 and A.2 fled away from the place of occurrence. This was witnessed by PW.1, PW.2, PW.3 and PW.14. The deceased along with PW.1, PW.2 and PW.3 went to Masaripatti Police Station where PW.9 Head Constable was on duty. The deceased gave a statement before PW.9, Head Constable. That statement was marked as Ex.P.10. The deceased was sent on a medical memo to the Government Hospital, Vilathikulam for treatment. On the strength of the Statement Ex.P.10, a case was registered in Crime No. 52/2004 under Sections 294(B), 323, 506(ii) of the I.P.C., at about 2.00 p.m., on the date of occurrence i.e. on 4.5.2004. F.I.R. Ex.P.11 along with Ex.P.10 Statement was sent to the Court and to the higher officials. On the same day, at about 2.30 p.m., A.1 also gave a complaint before the same Police Station. On the strength of the complaint given by A.1, a case was registered in Crime No. 53/2004.

(iii) On receipt of copy of the F.I.R. in Crime Nos. 52/2004 and 53/2004, PW.16, the Inspector of Police of the said Circle took up investigation. He proceeded to the Government Hospital, Vilathikularam where the deceased Balamurugan was admitted. He recorded a statement from the deceased Balamurugan in connection with Crime No. 52/2004 and that statement was marked as Ex.P.19. He also recorded the statements from PW.1, PW.2 and PW.3. Then, PW.16 the Inspector of Police proceeded to the place of occurrence, made an inspection in the presence of witnesses and prepared an Observation Mahazer Ex.P.2 and also a rough sketch Ex.P.20. He seized a Velikaruvai stick MO.1 produced by PW.14 from the place of occurrence.

(iv) The deceased Balamurugan was referred to the Government Hospital, Tuticorin for further treatment. The Doctor PW.10, medically examined the deceased and gave further treatment. He issued Wound Certificate Ex.P.12 for the injuries found on the deceased. Thereafter, while the deceased Balamurugan was being taken to the Rajaji Government Hospital, Madurai for further treatment, the deceased died on the way.

(v) On 4.5.2004 at about 10.30 p.m., on receipt of death intimation, through the outpost police, Government Rajaji Hospital, Madurai, PW.16, the Inspector of Police, altered the sections to be one of 294(b) and 302 of the I.P.C., under Crime No. 52/2004. Express F.I.R. was sent to the Court concerned. PW.16, the Inspector of Police, proceeded to the Government Rajaji Hospital, Madurai where the dead body of the deceased was kept in the mortuary. He conducted inquest on the dead body in the presence of witnesses and panchayatdars and prepared an Inquest Report, which was marked as Ex.P.22.

(vi) Following the inquest, the dead body was subjected to post-mortem by Doctor PW.11. He issued Post-mortem Certificate Ex.P.14 wherein he has opined that the deceased would appear to have died of Cranio Cerebral Injuries.

(vii) All these material objects recovered from the place of occurrence and from the the dead body of the deceased were subjected to chemical analysis, which resulted in Chemical Analysis Report Ex.P.9.

(viii) On 5.5.2004, PW.16 the Inspector of Police arrested the accused in the presence of witnesses and then, the accused was sent for judicial remand.

(ix) Then, the Investigating Officer examined the Doctor PW.5 who gave initial treatment to the deceased in the Government Hospital at Masarpatti. She stated that she examined the deceased medically and found injuries on his body. She issued Wound Certificate Ex.P.4 mentioning the injuries found on the body of the deceased and thereafter, she referred the deceased for further treatment to the Government Hospital, Tuticorin. The Doctor PW.10, who gave further treatment in the Government Hospital, Tuticorin, has stated that he found injuries on the dead body of the deceased Balamurugan as mentioned in the Wound Certificate Ex.P.12 and gave treatment to him.

(x) On completion of the investigation, PW.16, filed a final report against the accused/appellants as per the charges. The case was committed to the Court of Sessions. Necessary charges were framed.

In order to substantiate the charges levelled against the accused, the prosecution examined 16 witnesses and relied on 22 Exhibits and 14 MOs. On completion of the evidence on the side of the prosecution, the accused were questioned u/s 313 Cr.P.C. on the incriminating circumstances found in the evidence of the prosecution witnesses, which was flatly denied by the accused/appellants as false. On the side of the defence, though no witness was examined, Wound Certificate of A.1 was marked Ex.D.1. The trial Court after hearing the arguments advanced by either side and on considering the materials available on record, took the view that the prosecution had proved the case beyond reasonable doubts and found the accused/appellants guilty of the charge and awarded life imprisonment which is the subject matter of the appeal before this Court.

Advancing his arguments on behalf of the appellants, Mr. K. Sundaravel, learned Counsel appearing for the appellants, would submit as follows:

(i) The prosecution though marched four eye-witnesses viz., PW.1, PW.2, PW.3 and PW.14, it failed to prove its case. Admittedly, the occurrence had taken place in front of the tea stall of A.1. Even as per the prosecution, the deceased was going for taking tea and there was a wordy altercation in front of the tea stall of A.1 and in that process, A.1 attacked the deceased with a stick and A.2 actually pushed down the deceased. Insofar as the overt-act of A.2, no corresponding injury is found in the post-mortem certificate Ex.P.14. Thus, it did not get the corroboration of the ocular testimony.

(ii) Added further the learned Counsel that, in the instant case, on the complaint given by A.1, the same police registered a case in Crime No. 53/2004. Insofar as Crime No. 53/2004 neither F.I.R., nor the statements recorded u/s 161 Cr.P.C. were produced before the Court. Admittedly, the first accused, after registration of the case in Crime No. 53/2004, was sent for medical examination and he was also given Accident Register Copy, which was marked as Ex.D.1. A perusal of the same clearly reveals that there was a cut injury measuring 10 X 2 X 3 cms on the left side fore arm and muscles were also found. Thus, it would be quite clear that one should have attacked with a sharp edged weapon. The explanation given by the prosecution was that when he was pushed down by the deceased, A.1 sustained such injury. Hence, it would be quite clear that it was the deceased who attacked the deceased with sharp edged weapon and caused such injury.

(iii) At this juncture, it is pertinent to point out that, at the time of occurrence, A.1 was in the tea stall. The occurrence had taken place in front of the tea stall. There was a wordy altercation. In that process, the deceased attacked A.1 and pushed down A.1, immediately, A.2 pushed down the deceased. Immediately, A.1 took a stick available from the place of occurrence and attacked the deceased. A.2 was never armed. The prosecution has not only suppressed the fact that A.1 sustained cut injury as found in Ex.D.1 but also suppressed the material papers in Crime No. 53/2004 disenabling the Court in finding out the truth of the case.

(iv) According to the learned Counsel, for the reasons stated above, the judgment of the lower Court is liable to be set aside and the appellants/accused are entitled for acquittal in the hands of this Court.

The Court heard the learned Additional Public Prosecutor on the above contentions.

The Court paid its utmost attention to the submissions and made a thorough scrutiny on the entire materials available on record.

It is not a fact in controversy that the husband of PW.1, after the incident that took place at about 8.30 a.m., on 4.5.2004, was taken to the Government Hospital, Vilathikulam where he was medically examined by PW.5 Doctor, who has issued Wound Certificate Ex.P.4 and then the deceased was taken to the Government Hospital, Tuticorin for further treatment where PW.10 medically examined the deceased and issued Wound Certificate Ex.P.12 and when the deceased was being taken to the Government Rajaji Hospital, Madurai, he died on the way. On receipt of Death Intimation, the Investigating Officer altered the provisions of section as one under Sections 294(b) and 302 of the IPC. At this juncture, it is pertinent to point out that following the incident that took place at the time of occurrence as put-forth by the prosecution, despite treatment, the husband of PW.1 has died. Now, the prosecution is successful enough in proving the fact the deceased died out of homicidal violence.

In order to substantiate the charge levelled against the accused/appellants, the prosecution has examined four eye-witnesses viz., PW.1, PW.2, PW.3 and PW.14. All these four eye-witnesses have spoken to the effect that it was the first accused who attacked the deceased with a stick on his head and A.2 pushed down the deceased. These four witnesses were examined as ocular testimony. All these witnesses have not come with the truth.

It is pertinent to point out that the deceased was taken to the Government Hospital, Vilathikulam after recording the statement of the deceased and that statement was marked as Ex.P.10. On the strength of Ex.P.10 statement, the case came to be registered in Crime No. 52/2004. Now, at this juncture, it is pertinent to point out that on the complaint given by A.1, a case came to be registered in Crime No. 53/2004. He was also sent for medical examination with police memo to the Government Hospital, Vilathikulam. He was also examined by Doctor PW.5 and she issued Would Certificate Ex.D.1 in which it is mentioned that there was cut injury measuring 10 X 2 X3 cms on the upper fore arm and muscles were found. It is pertinent to point out that at the time of evidence, when medical person was examined, there was no whisper by the prosecution explaining the said injury. But, at the time of cross-examination, questions were put to the medical person regarding medical examination of the accused. Thereafter, the prosecution with a feeble attempt tried to explain the said injury in re-examination that such cut injury 10 X 2 X 3cms could have been caused to A.1 by falling down on a stone, but such a cut injury could only be caused by a sharp edged weapon.

At this juncture, it is pertinent to point out that, according to the defence, it was the deceased who went over to the tea shop and there was a wordy altercation. Thus, it is quite clear that the deceased went over from his house with the weapon in question and attacked A.1. In that process, A.1 sustained such injury. In order to avoid this, A.1 has taken a stick and attacked the deceased. After the occurrence, A.1 was running with a stick.

Further, the case registered in Crime No. 53/2004 by the same Police and the material papers recorded in Crime No. 53/2004 have been suppressed. This is nothing but disenabling the Court finding the truth of the matter. Thus, the prosecution has suppressed the genesis of the occurrence.

Thus, non-explanation of the cut injury sustained by A.1 coupled with non-production of the materials recorded in Crime No. 53/2004 would be sufficient to reject the prosecution case. The lower Court has not considered these aspects of the matter either factually or legally.

Hence, the judgement of the lower Court has got to be set aside by upsetting the judgment of the lower Court and accordingly, it is set aside. The Criminal Appeal is allowed. Therefore, accused are acquitted of the charge. It is reported that A.1 is in jail. He is directed to be released forth-with unless his presence is required in connection with any other case. The bail bonds executed by A.2 stand terminated.