Manoharan and Another vs State, by Inspector of Police, Thirukazhukkundram Police Station

K.P. Sivasubramaniam, J.—This appeal arises out of the judgment of the learned Sessions Judge, Chengai Anna District, Chengalpattu dated 15.6.1990 in S.C. No. 136 of 1989.

In the said sessions case, 5 accused stood charged under various offences. A2 to A5 were charged under S.147 of Indian Penal Code, A1 was charged under S. 148 of Indian Penal Code and Al to A5 were charged under S.302 read with S.34 of Indian Penal Code. The learned Sessions Judge found A2, A3 and A5 not guilty of the charges and convicted Al and A4 under S.304 part II read with S.34 of Indian Penal Code. Both A1 and A4 were sentenced to undergo rigorous imprisonment for 5 years.

The case of the prosecution is that P.W.I, P.W.2, P.W.3 and P.W.6 are residents of Paramasivam Nagar, Thirukazhukkundram. The deceased Thambiran also belongs to the same village. Al to A5 belong to Muthu Nallan Kuppam. Both parties were known to each other and on 1.5.1988, P.W.6 had gone to a festival at Thirukazhukkundram temple and at about 10.00 p.m., he was playing with a rubber ball and it is alleged mat the ball had hit one Naicker belonging to Muthu Nallan Kuppam and as a result of which Al to A5 had beaten P.W.6. This incident is alleged to have been witnessed by P.Ws. 1,2 and 3 and that they pacified the accused persons and sent them away. After some time, P.Ws. 1 and 3 and deceased one Shanmugam came back and heard the accused stating that the people belonging to the colony should be done away with. P.Ws. 1 to 3 would further state that they became apprehensive about some problem brewing up and that when they were about to return to their colony near Arignar Anna Park at about 11.30 p.m., A1 to A5 and certain others had come there. Al was armed with an iron rod M.O.I. A4 had a stick in his hand M.0.2 and they caught hold of the deceased Thambiran. The first accused is supposed to have stabbed Thambiran on his chest and stomach by M.0.1 and that A4 beat the deceased on his left thigh. The fifth accused was supposed to have hit the deceased on his mouth and that the third accused hit the deceased on his back. The second accused who is also said to have hit the deceased on his face and chest and as the colony people were gathering there, the accused left the place and ran away. P.W.I has deposed that on the next day morning at about 5.30 a.m., all of them went to Thirukazhukkundram police station and that the deceased wrote out a complaint in his own handwriting and gave a signed complaint to the police and that he was sent to the Chengalpattu General Hospital. P.W.7 has registered a case in Crime No. 78 of 1988 under Ss.147, 148 and 324 of Indian Penal Code. P.W.8 was the Doctor who was on duty on 3.5.1988 and P.W.9 was the Medical Officer of Chengalpattu Medical Hospital examined the deceased and found the following injuries.

Laceration 1 cm right side of nose.

Laceration lower lip 1/2 cm x 1/2 cm.

1/2 cm Laceration left for Dorsum of hand with swelling of hand.

Left upper abdominal paid in the External injury.

According to his evidence, treatment was given and admitted as in- patient in ward No. 10 and according to him injury Nos. 1 and 2 are possible by fisting, injury No.3 was possible to be caused by a stick like M.O.2. Later, it appears that the deceased had expired at about 6.10 a.m.

P. W. 11 The Inspector of Police took up the investigation at about 7.30 a.m. on 3.5.1988 and he conducted an inquest between 10.30 a.m. to 1.00 p.m. and Ex.P. 13 is the inquest report. P.W.4 who was the then reader and Head of Department, Forensic Medicine, Chengalpattu Medical College, Chengalpattu conducted the post mortem at 11.30 p.m. on 3.5.1988. He noticed the following external and internal injuries.

Abrasions :

2 cms x 1 1/2 cms over the right cheek.

1 1/2 cms x 1/2 cm over the right side of upper lip.

2 cms x 1 cm over the left side of upper lip.

4.2 1/2 cms x 2 cms over the right side of lower lip.

1 cm x 1/2 cm over the back of left hand.

3 cms x 2 1/2 cms over the front of left thigh.

2 cms x 1/2 cm over the front of left thigh.

An oblique patterned abrasion of 5 1/2 cm x 1 1/2 cms over the back of left forearm.

A laceration of 1 cm x 1 /2 cm over the outer aspect of upper lip, on the right side.

A laceration of 1-1/2 cms x 1-1/2 cms over the middle of lower lip.

Internal Sounds:-

A diffuse bruising of 8 1/2 cms x 7 cms over the left side lower abdominal wall.

An oblique gaping wound of 1 1/2 cms x 1 cm with everted infected margin over the small intestine 220 cms away from the ileocaecal junction. The coils of intestine were found inflamed bevety in appearance adherent to each other, and covered with pus and flakes of fibrin. The peritoneal cavity contained 1500 cc of turbid fluid with foetid odour.

According to his opinion, injuries 1 to 5 could have been caused by fisting, injuries 6, 7 and 8 could have been caused by using sticks, injuries 9 and 10 are possible by fisting, injuries 11 and 12 could have been caused by a single blow with an iron rod like M.O.I. Injury No. 12 corresponds to injury No. 11, but both are internal injuries and that injury No. 12 was sufficient to cause death in the ordinary course of nature.

Thereafter P.W. 10 converted the charge under S.302 of Indian Penal Code.

In this case, P.W.s 1 to 3 claim to be eye witnesses to the occurrence. But on a perusal of the entire oral and documentary evidence, it is seen that due to improper conduct of investigation as well as the obvious intervention by some third party to implicate the accused in a manner which runs contra to the First Information Report given by the deceased himself, suspicion is created as against the facts alleged by the prosecution.

P.W.I claims that Ex.P.4 the complaint alleged to have been given by the deceased himself was written by him and signed by him. A perusal of the original of Ex.P.4 shows that the text of the complaint has been written in a different hand and that the deceased had signed the same in two different places one in a ball point pen and another in a regular pen. According to Ex. P.4, he was attacked by A5 Kannimuthu, his brother Kuttiappan A3, Al, A4, Baskaran and A2. It is also further stated that he cannot say who gave which blow and used which weapon. He was specific only about one overact namely that he was first assaulted by A5 Kannimuthu who had hit him on his stomach by an iron rod. The deceased is stated to have given a statement under S.161 Cr. P.C. on the very next day on 2.5.1988 which is said to have been recorded by the police. In Ex. P-l 1 the deceased appears to have given a more detailed version of the alleged incident in which he has attributed several overacts as against each one of the accused. Apart from the fact that he had not given those details in Ex.P.4, there is a vital contradiction between the statement given in Ex.P.4 and Ex.P. II. In Ex.P.11, the injury caused on the stomach by M.O.I is attributed to Al. A5 Kannimuthu who was alleged to have inflicted such blow as per Ex.P.4 has been alleged to have only hit hi on his mouth. It is pertinent to note that based on Ex.P.4, it was infect A5 who was arrayed as A1 in the First Information Report and Al had been arrayed as A3 in the First Information Report. There is obvious attempt on the part of the prosecution to shift the overacts as between the accused. In this context, another relevant fact to be noted is that according to P.W. 1, the complaint given by the deceased was written by one individual belonging to their own village and that he was present when the complaint was written out. This statement has been made in the cross examination which runs contra to his own statement in the examination in chief in which he has stated that the deceased had written out the complaint in his own handwriting. P.W.2 would state that he was not aware of the scribe of the complaint. According to P.W.3, P.W. 1 is said to have given a statement before the Sub Inspector of Police at the time when the deceased was taken to the police station and that the Sub Inspector wrote down the complaint as stated by P.W.I and took the signature of P.W. 1. No such complaint has been filed by the prosecution. Therefore the manner in which both Ex.P.4 and Ex.P. 11 have been brought in to existence give rise to serious doubts about the background in which the said complaints have been brought into existence. If P.W.3''s evidence is to be believed, there appears to be another complaint given by P.W.I himself which has not seen the light of the day.

Apart from the serious defect as pointed out above, the learned Sessions Judge himself has pointed out several infirmities in the place of the prosecution which can be stated as follows:

i. No motive has been alleged by the accused against the deceased.

ii. There is no evidence to show that A1 to A5 had assembled there in an illegal manner or about A2, A3 and A5 having been in possession of any sticks with them.

iii. There is no proof of the common object of causing the death of the deceased.

iv. Vedagiri who is said to be an eye witness has not been examined.

v. One Baskaran has been specifically mentioned as one of the assailant both in Ex.P.4 and Ex.P. 11 and no reason has been adduced by the prosecution as regards the non inclusion of the said Baskaran as an accused.

vi. There are several contradictions as between the evidence of P.W.I to P.W.3 with reference to the role played by A2, A3 and A5.

Apart from the defects pointed out by the learned Sessions Judge himself, the exact place where the occurrence had taken place also does not appear to have been properly established. While according to Ex. P.4 the incident had taken place near Anna Park, according to the eye witness, the incident took place near Thirukazhukkundram Bazaar.

Having regard to the vital contradictions in the case of the prosecution as pointed out above, the learned Counsel for the appellant contends mat the very substratum of the case of the prosecution was'' found to be false and that there was no purpose in believing only one part of the case of the prosecution and to convict the accused on that basis. The learned Sessions Judge having pointed out several defects in the case of the prosecution however had thought it fit to accept the version of the prosecution only on the basis that an offence had taken place and that an individual had lost his life. The learned Counsel has referred to the judgment of the Supreme Court as reported in Bhagirath Vs. State of Madhya Pradesh, . The Supreme Court has pointed out in para 13 of its judgment that when the substratum of the evidence given by the eye- witnesses examined by the prosecution was found to be false, the only prudent course, in the circumstances of the case, left to the Court was to drown out the prosecution case in its entirety against all the accused. Reference is also made to another judgment of the S.C. reported in Ugar Ahir and Others Vs. The State of Bihar, In the said case also, the Supreme Court has pointed out mat it was the duty of the Court to scrutinise the evidence carefully and to separate the grain from the chaff. But, it cannot obviously disbelieve the substratum of the prosecution case or the material parts of the evidence and reconstruct a story of its own out of the rest. In another judgment reported in Balaka Singh and Others Vs. The State of Punjab, , the Supreme Court after referring to another judgment reported in Zwinglee Ariel Vs. State of Madhya Pradesh, held that where the grain cannot be separated from the chaff because the grain and the chaff are so inextricably mixed up and that in the process of separation the Court will have to reconstruct an absolutely new case for the prosecution by divorcing the essential details presented by the prosecution, the principle of deriving grain from the chaff will not apply.

The very reasoning given by the learned Sessions Judge are themselves sufficient to have rejected the case of the prosecution, but he had gone further to reconstruct a different case which is not consistent with the case of the prosecution. Even apart from the defects pointed out by the learned Sessions Judge, the contradictions between Ex.P.4 and Ex.P. 11, the obvious attempt on the part of the prosecution to implicate A1 with the fatal injury; the author of Ex. P. 11 being an undisclosed individual belonging to the village which would suggest the intervention of some third party etc. give rise to considerable doubts as regards the fairness in the investigation and the attribution of overacts to the various accused in the present case. Therefore, I am inclined to hold that in a case of this type, the accused are entitled to the benefit of doubt.

In the result, the above appeal is allowed and the accused are set at liberty.