Krishnamoorthi and Balasubramaniam vs State

Janarthanam, J.—Accused 1 and 2 appeal.

Accused 1 was found guilty of the offence u/s 302 IPC., convicted thereunder and sentenced to imprisonment for life. Accused 2 was found guilty of the offence u/s 324 IPC., convicted thereunder and sentenced to rigorous imprisonment for three months. Accused 2, who was charged u/s 302 read with Section 109 IPC. and accused 3, who was charged u/s 302 read with Section 34 IPC, were found not guilty and acquitted of the same. Accused 1 to 3 were also found not guilty in respect of the charge u/s 341 IPC. and acquitted. Accused 1 was found not guilty of the charge u/s 326 IPC. and was acquitted of the same. No appeal by the State against the acquittal of the accused in respect of the aforesaid charge had been preferred. The conviction and sentence of accused 1 and 2 are challenged in this appeal.

The pith and substance of the case of the prosecution as culled out from the materials placed on record are as follows:

(i) The backdrop and setting for the occurrence, which happened on 8-10-1983 at 8-30 a.m. in the village called ''Pandrimalai'', situate 70 K Ms. away from Kannivadi Police Station, was provided by the incident in which P.W.4, senior paternal aunt''s daughter of P.W.1 got injured at the hands of accused 1, half an hour prior to the occurrence. The agitating cause for accused 1 resorting to beat P.W.4 was this. PW.4, residing adjacent to the house of accused 1, riser on the early morning of the day of the occurrance, swept the front court-yard of their house as usual. While so doing, the dung of the dogs found scattered therein was swept and pushed aside in front of the house of accused 1. Accused 1 felt that such mischief had been perpetrated wantonly by PW.4. So, he picked up a quarrel with her and a wordy altercation ensued between them. During the wordy quarrel accused 1 hit on her head with a stick MO.5. On receipt of the hit, she sustained a bleeding injury and fell down fainted.

(ii) On hearing the incident, PW.1 rushed to the house of accused 1 to question the propriety of his beating PW.4. Accused 1 is none-else than the brother-in-law of PW.1. On PW.1''s arrival at the scene, accused 1 obviously afraid of PW.1 (a person prone to violence) went inside his house and bolted the door, PW.1 finding accused 1 concealing his presence, abused him in filthy language for the cowardly act of beating PW.4, a woman and left the place towards the arrack shop. Accused 2, brother of accused 1, felt aggrieved at the abuse of his brother by PW.1. So accused 2 rushed towards PW.1 arming himself with a vangu aruval and made an attempt to cut PW.1 on his forehead. PW.1 was stated to have warded off the same with his left hand and consequently, the cut loaded on his left hand and causing a bleeding incised injury. Then PW.1 and accused 2 fought with each other and rolled on the ground. On seeing the same, Kandasamy, sister''s son of PW.1, came there to the rescue of PW.1. Accused 3, the other brother of accused 1, is also stated to have rushed to the spot and caught hold of the hands of Kandasamy from behind, so as to prevent him from going to the rescue of PW.1. At this juncture, accused 1 came running with a bitchuva MO.1 and stabbed on the chest of Kandasamy. He again aimed a stab on him. The victim Kandasamy wriggled out and in that process, the stab fell on the left hand of accused 3. On receipt of the stab, Kandasamy fell down. Thereafter, accused 1 stabbed on the back of PW.1, while he was sitting over accused 2. In the meantime, a scuffle between PW.1 and accused 2 reached a stage when PW.1 overpowered accused 2 and actually got perched on him. Finding the perilous situation in which accused 2 was placed, at the hands of PW.1, accused 1 went to his rescue and inflicted a stab on the back of PW.1. Thereafter, accused 1 to 3 ran away from the scene. Kandasamy, who fell down, on receipt of the stab, died within a short while. PW.1 unable to bear the pain of the injury, was also lying down in the scene of occurrence.

(iii) Regarding the occurrence in which PW.4 got injured, PW.6 happened to see it. PW.1 to 3 are the ocular witnesses to the main occurrence.

(iv) PW.5, the Village Administrative Officer, who had come to know of the occurrence, reached the scene village at 1 p.m. and recorded Exhibit P-1 statement from PW.1 and sent it to Court. He sent Exhibit P-2, a copy of Exhibit P-l, to Kannivadi Police Station. PW.11 Head Constable received it at 6-30 p.m. and registered the same in Crime No. 140/83 under Ss.323, 324, 341 and 302 IPC. He prepared express reports and sent the same to the concerned officials. Exhibit P-18 is the express report sent to the judicial Second Class Magistrate''s Court, Dindigul.

(v) PW.13, Inspector of police, on receipt of the express report at 7 PM. proceeded to the scene of occurrence. He examined P Ws.1 and 4. He seized MO.2 to MO.4, blood-stained clothes from PW.1 under Exhibit P3 mahazar. He sent P Ws.1 and 4 to the Government Hospital for treatment. He prepared Exhibit P4, observation mahazar. Exhibits P3 and P4 were attested by PW.5. Exhibit P18 is the rough sketch of the scene of occurrence. He conducted inquest over the dead body of the deceased between 10-30 PM. and 1-30 AM. Exhibit P19 is the inquest report. He despatched the body through the constable P.W.10 to the hospital for the purpose of autopsy. He seized M0.6 bloodstained earth from the scene of occurrence under Exhibit P5. He also seized MO.5 bloodstained stick and MO.10 bloodstained leaves under Exhibit P6. Exhibits P5, and 16 were attested by PW.5.

(vi) PW.8, the doctor attached to the Government Headquarters Hospital, Dindi-gul treated the injuries on accused 1 to 3 on 8-10-1983 and issued wound certificates, Exhibit P8 for accused 1, Exhibit P9 for accused 2 and Exhibit P7 for accused 3. On 9-10-1983, he examined P Ws.1 and 4 and treated them for their injuries. Exhibit P10 is the wound certificate issued for PW.4 while Exhibit P11 is the wound certificates he issued for PW.1.

(vii) PW.9, the doctor attached to the Government Headquarters Hospital, Dindigul conducted autopsy on 9-10-1983 at 9-50 AM. over the body of the deceased. Exhibit P12 is the post-mortem certificate.

(viii) PW.13 arrested accused 1 in the hospital on 11-10-1983. He arrested accused 3 on 12-10-1983 near the bridge situate near the garden of Dhanasami. On the same day at 3-30 PM., he seized MO.1 bloodstained knife from a bush situate within the compound of the house of accused 3 under house search list, Exhibit P20. Accused 2 had surrendered before Court at Vedasandur.

(ix) PW.13 gave Exhibit P14 requisition to the Court for sending the material objects to the Chemical Examiner for analysis. Accordingly, PW.12, Headclerk attached to the Judicial Second Class Magistrate No. I, Dindigul despatched the same to the Chemical Examiner for the purpose of analysis, under Exhibit P15, office copy of the letter. Exhibits P16 and P17 are the reports of the Chemical Examiner and the serologists respectively.

(x) After completing the investigations PW.13 laid a report on 21-12-1983 u/s 173 Crl.P.C., against accused 1 for offences under Sections 341, 324 and 302 I.P.C., against accused 2 for offences under Sections 341, 324 and 302 read with 34 I.P.C. and against accused 3 for offences under Sections 341, 326 and 302 read with 109 I.P.C., appeared to have been committed by them.

Upon committal, the learned Sessions Judge, Madurai North at Dindigul framed charges u/s 341 IPC. against all accused, under Ss.341 and 302 read with Section 109 IPC. against accused 2, under Ss.302 and 326 IPC. against accused 1 and u/s 302 read with Section 34 IPC. against 3rd accused. The accused, when questioned as respects the charges framed against them, denied the same and claimed to be tried.

The prosecution examined P Ws.1 to 13, filed Exhibits P-1 to P-20 and marked M Os.1 to 11.

The accused when questioned u/s 313 Crl.PC. as regards the incriminating circumstances appearing in evidence against them, denied their complicity in the crime. However, they had stated that the prosecution party mounted an attack on them and they in fact went to the Police station and gave a complaint. They would further state that subsequently, the villagers belonging to their faction, attacked the prosecution party and caused them injuries. The defence examined the Judicial Second Class Magistrate as DW.1 for the purpose of proving the dying declaration, Exhibit D-3 made by PW.1 while he was in the hospital. They also marked Exhibits D-1 and D-2. Exhibit D-1 is the registered release deed executed by PW.1 in favour of his wife and minor sons. Exhibit D-2 is the registered gift settlement deed executed by the father of PW.1 in favour of PW.1''s minor sons for the purpose of showing that PW.1''s relationship with his wife was a little bit strained and consequently, he left his wife and children in the lurch and that accused 1 took care of the wife and children of PW.1 and maintained them from out of the income derived from the properties settled under Exhibit D-2 in their favour.

The learned Sessions Judge, Madurai North at Dindigul, on perusal of the materials placed before him and after hearing the arguments of the learned Public Prosecutor and the learned Counsel for the defence, found the Appellants-accused 1 and 2 guilty, convicted and sentenced them as stated above, while giving a clean chit in respect of other charges framed against all the accused 1 to 3.

Learned Counsel appearing for the Appellants would strenuously contend that all is not well with the case of the prosecution in the sense that material and vital facts, which ought to have been placed before the Court for arriving at a just decision had not been, in fact, placed, the consequence of which was that the Court below was rather handicapped to decide the question as to who was the aggressor and without the deciding the question of aggressor, the Court simply accepted the version as projected by the prosecution and as unfolded by P.W.1, the victim of assault and his kinsman PW.3, resulting in the miscarriage of justice.

X X X X

[Discussion of facts omitted-Ed.]

x x x x

Admittedly PW.1 married the sister of accused 1. PW.1 had not had the happy matrimonial home with his wife. In fact, he executed a release deed Exhibit D1 in favour of his wife and children. The father of PW.1 also settled certain properties in favour of PW.1''s minor children. The wife and children of PW.1 had been maintained by accused 1 for quite sometime past with the income derived from the properties settled by P.W.1''s father under Exhibit D2.

It is the further case of the defence that when they had been to the police station for reporting the matter, the deceased and PW.1 sustained injuries in the attack mounted on them by the villagers of their faction. The theory of the defence assumes signal importance, when especially the version projected by them by the preference of a complaint to the Sub-Inspector of Police was not placed on record as an exhibit. It is rather unfortunate that the learned Public Prosecutor, who conducted the case in the Court below, had not chosen to place the complaint given by the accused to the police before court. Not even an attempt had been made by the investigating agency, PW.13, to refer to the complaint made by the accused before the police station. What PW.13 would add during the course of his cross examination, without any questions having been put on the aspect of the complaint given by the accused, voluntarily is that a complaint in fact had been given by the accused to the police and the same had been, registered as Crime No. 139/83 and on investigation, it was referred to as ''a mistake of fact''. In such state of affairs, we are of the view that the investigation made in this case is rather perfunctory and the investigating machinery had not chosen to investigate the case in all its aspects, in the sense of examining and verifying the veracity of the versions put forward by both the sides and coming to proper conclusion as to which version it had accepted and placed before Court.

If the investigating machinery had followed the procedure adumbrated under Order 588-A of the Madras Police Standing Orders, they could not have contemplated any difficulty in laying a definite case. It is worthwhile to quote Order 588-A of the Madras Police Standing Orders. It is as follows:

588-A. Charge Sheets in cases and counter cases:- In a complaint and counter complaint, obviously arising out of the same transaction, the investigation officer should enquire into both of them, and adopt one or the other of the two courses viz., (1) to charge the case where the accused were the aggressors, or (2) to refer both the cases if he should rind them untrue. When the investigating officer proceeds on the basis of the complaint it is his duty to exhibit the counter complaint in the court and also to prove medical certificate of persons wounded on the opposite side. He should place before the court a definite case which he asks it to accept. The investigating officer in such cases should not accept in toto one complaint and examine only witnesses who support it and give no explanation at all for the Injuries caused to the other side. The truth in these cases is invariably not in strict conformity with either complaint and it is quite necessary that all the facts are placed before the Court to enable it to arrive at the truth and a just decision.

If the investigating officer finds that the choice of either course is difficult, viz., to charge one of the two cases or to throw out both, he should seek the opinion of the Public Prosecutor of the district and act accordingly. A final report should be sent in respect of the case referred as mistake of law and the complainant or the counter-complainant, as the case may be, should be advised about the disposal by a notice in Form 96 and to seek remedy before the specified Magistrate, if he is aggrieved by the disposal of the case by the police."

It is clear from the above said Order what is the duty of the investigating officer when there is a case and a counter-case. It is found that these instructions are not followed by the police on the quasi-totality of cases. The learned Public Prosecutor would do well in bringing these instructions to the notice of the investigation officer in Tamil language in a clear manner, so that the investigating machinery is not making a perfunctory Investigation, when faces with the investigation of a case and a counter-case.

So far as the case on hand is concerned, the investigating officer has not proceeded with the case according to the instructions given in the Madras Police Standing Orders noted above. He has simply suppressed one case and it is only at the time of his cross-examination that he cursorily referred to the other case, without explaining why he has chosen the version of PW.1 rather than that of the accused.

In view of the special features of the case as enumerated above, we are firmly of the view that it is not safe to fasten criminal liability upon the Appellants-accused 1 and 2 as had been done by the Court below.

In the result, the appeal is allowed, the conviction and sentence on the appellate-accused 1 and 2 are set aside and they are acquitted. The bail bonds executed by them shall stand cancelled.