M. John and Others vs The State

S. Nagamuthu, J.—The appellants are the accused Nos. 1 to 4 in S.C. No. 18 of 2011, on the file of the learned Fifth Additional Sessions Judge, Madurai. The Trial Court framed as many as two charges, as detailed below.

By Judgment dated 04.10.2012, the Trial Court convicted the accused Nos. 1 to 4, as detailed below:--

As against the said conviction and sentence, the appellants have come up with this Criminal Appeal.

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

"The deceased, in this case, was one Mr. Joseph Savarimuthu Kennady. One Mrs. Alphonsa Mary was the sister of the second accused. The husband of Mrs. Alphonsa Mary was one Mr. Sevathiah. They had a male child, aged four years. Both Mrs. Alphonsa Mary and her husband died leaving behind the child alone. The second accused and her parents wanted to take the child into their custody and to bring him home. But, the mother of PW-1 and his sister, who are the relatives of Mr. Sevathiah did not agree for the same. This resulted in ill-feeling between the two families. This is stated to be the motive for the occurrence."

2.1. On 04.09.2009, it is alleged that all the accused came to the house of the deceased - Mr. Joseph Savarimuthu Kennady, who was the brother of PW-1. On reaching the house, the accused developed quarrel with the deceased and pushed him down. When the deceased was lying down, the accused Nos. 3 and 4 hit him with brick and concrete stones. The accused Nos. 1 and 2 stamped him with legs. PW-1 intervened. The second accused attacked him with a stick with an intention to do away with him. The first accused cut him with a knife on his left leg. Then, all the four accused fled away from the scene of occurrence.

2.2. PW-2 is the wife of the deceased and PW-3 is the mother of the deceased. PW-4 is a neighbour. It is alleged that all these three witnesses witnessed the entire occurrence. After the occurrence, it is alleged that the deceased went to a private hospital, known as "Kayathri Hospital" at Madurai. After treatment as outpatient, he was sent back home. On the next day, the deceased became ill due to the injuries. Therefore, PW-2 and the other family members took him again to Kayathri Hospital at Madurai. But, the doctors there declined to treat him and therefore, they took him to yet another private hospital, known as "Lakshmi Hospital" at Madurai. There also, the doctor declined to treat him. Therefore, he was taken to the Government Hospital at Madurai and admitted him as an in-patient at 12.10 PM, on 05.09.2009. At that time, the deceased was unconscious. PW-3, who brought the deceased to the hospital, told the doctor that the deceased was attacked by ten known persons with aruval and wooden log, at 04.30 PM, on 04.09.2009 at his house. PW-1 went to a private hospital, known as "Dembavani Hospital" at Madurai. The doctor found two injuries on him as follows:--

"1. An abrasion on the right leg above the achieves tendons.

Lacerated injuries over the forehead". According to the doctor, both the injuries were simple."

2.3. On receiving intimation from the Government Hospital, Madurai, PW-18, the then Sub-Inspector of Police, Karimedu Police Station, went to the hospital, at 07.40 PM, on 05.09.2009. At that time, the deceased was unconscious. Therefore, PW-18 obtained a complaint from PW-1 under EX-P1. On returning to the Police Station, she registered a case in Crime No. 1460 of 2009, under Section 307 of the Indian Penal Code. EX-P1 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.

2.4. PW-20, the then Inspector of Police, Karimedu Police Station, took up the case for investigation, on 05.09.2009, proceeded to the place of occurrence, prepared an Observation Mahazer and a Rough Sketch, showing the place of occurrence in the presence of the witnesses, at 10.00 PM, on 05.09.2009. He recovered bloodstained earth and sample earth from the place of occurrence. He also recovered a brick and a stick found at the place of occurrence. He examined PW-1 to PW-4 and few more witnesses and recorded their statements. Then, he handed over the case diary to his successor.

2.5. When the investigation was in progress, on 06.09.2009, at 10.10 AM, the deceased succumbed to the injuries in the hospital. On receiving intimation from the hospital, the case was altered into one under Section 302 of the Indian Penal Code. EX-P12 is the alteration report. PW-19, the then Inspector of Police, who succeeded PW-20, took up the case for investigation, on 06.09.2009. He conducted inquest on the body of the deceased. EX-P13 is the inquest report. Then, he forwarded the dead body for postmortem.

2.6. PW-15, Dr. M. Alavudeen, conducted autopsy on the body of the deceased and noticed the following injuries:--

"1. Abrasion 2 cm X 1 cm on left forehead.

Abrasion 3 cm X 1 cm on left occipital region.

Abrasion 1 cm X 1 cm on left shoulder joint.

On dissection of scalp, skull & dura,"

Contusion scalp 10 cm X 5 cm on right tempero parietal region. Fracture 6 cm X 1 cm on right temporal bone. Depressed fracture 6 cm 1 cm on right parietal bone. Extra dural haematoma 8 cm X 5 cm with 100 gram clot noted on right parietal region. Diffused subdural haemorrhage & subarachnoid haemorrhage noted in both cerebral hemispheres. Fracture base of skull involving 4 cm in length noted on anterior cranial fossa on left side."

EX-P9 is the postmortem certificate and EX-P10 is his final opinion regarding the cause of death. According to him, the death was due to the head injuries. He further opined that the said injuries would have been caused by a wooden log.

2.7. During the course of investigation, PW-19 arrested all the four accused, at 03.30 PM, on 06.09.2009, at Madurai Pethanipuram Mettu Street in the presence of the witnesses. On such arrest, the second accused produced a knife, which he was possessing, which was recovered under a mahazer. Then, he forwarded the accused to the Court for judicial remand and handed over the material objects to the Court. Since he was transferred, he handed over the case diary to his successor, [PW-22].

2.8. On 26.05.2010, PW-22 took up the case for investigation, collected all the materials and on completing the investigation, he laid charge sheet against the accused.

2.9. Based on the above materials, the Trial Court framed appropriate charges, as detailed in the first paragraph of this Judgment. When the accused were questioned in respect of the charges, they pleaded innocence. In order to prove the charges, on the side of the prosecution, 22 witnesses were examined, 18 documents and 4 material objects were marked.

2.10. Out of the said 22 witnesses, PW-1, PW-3 and PW-4 are the eye-witnesses to the occurrence. PW-2 has turned hostile, as she did not support the case of the prosecution in full. PW-1, PW-3 and PW-4 have stated that the accused Nos. 1 to 4 attacked the deceased and the accused Nos. 1 and 2 attacked PW-1. PW-5 is a neighbour, who has stated that he took the deceased, on 04.09.2009, at 06.00 PM, to the Kayathri Hospital. PW-6 has not stated anything incriminating against the accused. PW-7 has spoken about the motive. PW-8 has stated that he went to the Kayathri Hospital, when the deceased was taking treatment. PW-9 has spoken about the recovery of the knife from the second accused. PW-10 has spoken about the same fact. PW-11 is the doctor, who was then working at Dembavani Hospital, Madurai, which is a private hospital. According to him, on 06.09.2009, at 11.00 AM, PW-1 came for treatment. He found two injuries on him. EX-P5 is the wound certificate. According to him, both the injuries were simple in nature.

2.11. PW-12 has stated about the preparation of the observation mahazer and the rough sketch. PW-13 is the doctor, who admitted the deceased at the Government Hospital at Madurai, on 05.09.2009, at 12.10 AM. He has stated that the deceased was conscious at the time of admission. [Accident Register shows that the deceased was unconscious]. According to him, PW-3 told him that the deceased was attacked by ten known persons. PW-13 has stated that he treated the deceased at the Government Hospital at Madurai. PW-14, the doctor at the Government Hospital, Madurai, declared him dead, at 10.10 AM, on 06.09.2009. PW-15 has spoken about the postmortem conducted by him and his final opinion regarding the cause of death. PW-16 is the Head Constable, who carried the complaint and the First Information Report to the Court of Judicial Magistrate. He has spoken about the same. PW-17 has stated that he carried the dead body to the Government Hospital for postmortem. PW-18 has spoken about the complaint obtained from PW-1 and the registration of the case. PW-19, PW-20 and PW-22 have spoken about the investigation done by them and the filing of the final report. PW-21 has spoken about the chemical analysis conducted by him. According to him, there were bloodstains on all the material objects including the knife.

2.12. 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. Their defence was a total denial. However, they did not choose to examine any witness nor to exhibit any document. Having considered all the above materials, the Trial Court convicted the appellants, as detailed in the first paragraph of this Judgment and punished them accordingly. That is how, the appellants are now before this Court with this Criminal Appeal.

We have heard the learned counsel appearing for the appellants, the learned Additional Public Prosecutor appearing for the respondent and also perused the records carefully.

The prosecution mainly relies on the eye-witness account of PW-1, PW-3 and PW-4 in full and the evidence of PW-2 in part. The question is whether the conviction of these appellants could be sustained based on these evidences. According to the positive case of the prosecution, the accused, the deceased as well as PW-1 sustained injuries in the very same occurrence. But, PW-1 has stated, in his evidence, that when he came to the house, these four accused attacked him. But, even before that, the deceased was attacked by these accused and he had already been taken to the hospital. Then, in chief-examination, he has stated that he did not sustain injury in the very same occurrence, in which the deceased had sustained injury. PW-3 has stated that these four accused came to the house of the deceased and attacked the deceased. Thereafter, she gave information to PW-1 over phone about the above occurrence. It was only thereafter, PW-1 came to the house.

From the evidence of PW-1, it is crystal clear that PW-1 would not have witnessed the occurrence, in which the deceased was allegedly attacked by these accused. Thus, the evidence of PW-1 that he saw the accused attacking the deceased cannot be believed.

Now, turning to the evidence of PW-2, though she has been treated as hostile, her evidence can be considered to some extent. According to her evidence, on 04.09.2009, at 05.30 PM, the deceased was attacked, but, she has not stated that the deceased was attacked by any of these accused. She has further stated that after her husband, viz., the deceased was attacked, PW-3 gave a telephonic message to PW-1 and thereafter, PW-1 came to the place of occurrence. Thereafter only, according to her, PW-1 was attacked. Thus, according to PW-2 also, there were two occurrences and the deceased and the accused did not sustain injury in the course of the same transaction. This is the further case of the prosecution that both PW-1 and PW-2 sustained injury in one and the same occurrence. PW-3 is the mother of the deceased. She has stated that all the four accused attacked the deceased with concrete stone and sticks. Then, the accused Nos. 1 and 2 cut PW-1. Thus, according to her, when the deceased was attacked, PW-1 and PW-2 were present. But, she has stated that she was also attacked by the accused. This is also not inconsonance with the case of the prosecution.

PW-4''s evidence plays a vital role. According to her, when the occurrence was in progress, the police came to the place of occurrence. On seeing the police, all the accused abandoned the weapons at the place of occurrence and fled away from the scene of occurrence. This evidence of PW-4 completely falsifies the evidence of PW-18, who has stated that on 06.09.2009, at 07.40 PM, he went to the hospital and recorded the statement of PW-1 and on returning to the Police Station, he registered the case. If it is true that the police had come at the place of occurrence when the occurrence was in progress, what was that earliest information which the police had on 04.09.2009 at 04.30 PM, has not been explained away. The said information has been suppressed. But, the First Information Report came to be registered only on 06.09.2009, at 07.40 PM. This creates enormous doubt in the case of the prosecution.

Apart from the above, the prosecution has failed to prove the condition of the deceased, when he was undergoing treatment in the hospital. PW-2 has stated that after the occurrence, the deceased was taken to a private hospital, known as "Kayathri Hospital" and after treatment he returned back home. On the next day, at 05.30 AM, the deceased developed some problem and therefore, again, he was taken to the said Kayathri Hospital. Since the doctors refused to treat the deceased, he was taken to the Lakshmi Hospital at Madurai. Since the doctors there also refused to treat the deceased, he was taken to the Government Hospital at Madurai. None of the medical records pertaining to the treatment given in these hospitals has been marked in evidence. On 05.09.2009, at 12.10 PM, the deceased was taken to the Government Rajaji Hospital, Madurai. PW-3, who took the deceased to the hospital, told that the deceased was attacked by ten known persons at his house. At that time, the deceased was unconscious. PW-3 has been duly contradicted with this statement. This also creates doubt in the case of the prosecution.

In view of the foregoing discussions, we find that there are lot of doubts in the case of the prosecution and the same have not been cleared by the prosecution. We hold that the prosecution has failed to prove the case beyond reasonable doubts and therefore, the conviction and sentence imposed on the appellants is liable to be set aside.

In the result, this Criminal Appeal is allowed; the conviction and sentence imposed on the appellants by Judgment, dated 04.10.2012, made in S.C. No. 18 of 2011, on the file of the learned Fifth Additional Sessions Judge, Madurai, is set aside and the appellants are acquitted. Fine amount, if any, paid by the appellants shall be refunded to them. Bail bond executed by the appellants and the sureties shall stand terminated.